By Michael R. Sisak, Eric Tucker
Associated Press
NEW YORK (AP) — Criticized by a federal judge for sloppy legal work, the government on Thursday grudgingly withdrew subpoenas that would have compelled three New York Times reporters to testify about their sources for articles about President Donald Trump’s Qatari-gifted Air Force One jet.
The withdrawals in U.S. District Court followed a remarkable back-and-forth between a visibly irritated Judge Arun Subramanian and government lawyers. They come at a time when the Trump administration is vigorously going after news organizations whose reporting and coverage it doesn’t like — and also trying to crack down on leaks inside the government.
The government’s turnabout in the face of vigorous legal opposition and a stern reprimand from a judge marked the latest instance of the Justice Department making aggressive moves to compel journalists to identify their sources before a grand jury — only to later retreat. The administration recently withdrew similar subpoenas that sought to compel testimony from journalists for The Washington Post and The Wall Street Journal related to separate national security coverage.
Subramanian said he otherwise would have granted the newspaper’s request to reject the subpoenas because regulations pertaining to subpoenas served on journalists maintain that they should be issued as a last resort in an investigation.
“Subpoenas are the last step, not the first step, but the last step,” the judge said, citing rules set to protect against violations of the First Amendment. He said the government’s actions had turned the law and the regulations “on its head.”
“When you see something like this, if this were a civil proceeding, what I would normally do is ask the parties to show causes why sanctions should not be issued,” the judge said, referencing punishment for lawyers for egregious actions.
After the hearing, the Justice Department lashed out at Subramanian in a statement, saying he “threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation.”
“The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides clear longstanding principles and common sense — blocking the grand jury from receiving core evidence in a national security investigation,” the statement said.
“Make no mistake,” it added, “this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime.”
Government attorneys
upbraided by judge
Subramanian noted that with protections for journalists at stake, the government was required to ensure it could not obtain what it needed from any other sources before issuing subpoenas to journalists.
A Justice Department lawyer, Sean Buckley, cast the government’s missteps as inadvertent errors and said: “No one was trying to pull a fast one.” Buckley apologized for other subpoenas that sought records for phone numbers belonging to one reporter’s mother and two of the journalists’ spouses.
“That was an error, judge, which we own,” Buckley said. “It was a consequence of trying to move quickly.”
“These things are starting to pile up,” Subramanian said, becoming increasingly testy.
The hearing was held publicly despite efforts by the Trump administration to keep secret the litigation spawned by subpoenas it served on the Times’ journalists to try to get them to divulge their sources...
