Gov't Revokes Subpoenas for Reporters  07/24 06:14

   

   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were withdrawn, and blocked us from presenting the meticulous process of this 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.

   The newspaper's lawyers had challenged the validity of the grand jury 
subpoenas, along with subpoenas issued for phone records of several Times 
journalists and some of their relatives. Senior Times officials, including the 
paper's managing editor and general counsel, sat in the gallery watching during 
Thursday's proceedings.

   The request for phone records raised questions about the extent of the 
investigation being carried out by the Justice Department.

   David McCraw, the Times' chief newsroom lawyer, said after the hearing in a 
statement that it "was an important affirmation of our country's commitment to 
a free press."

   "We are pleased that the government finally conceded that the subpoenas 
violated the law, but they should never have been issued in the first place," 
he said. "We will not be deterred in the face of tactics like these."

   Court action comes after reporting on new Air Force One jet

   The new jet in question, a present from Qatar that Trump's administration 
spent $400 million to retrofit and upgrade, recently entered service. But Trump 
used an older model Air Force One jet to leave a NATO summit in Turkey earlier 
this month.

   The Times, citing anonymous sources, reported that the switch had come at 
the urging of the Secret Service and that the newer plane lacked some of the 
advanced security features of the older Air Force One aircraft, including 
antimissile capabilities. On social media, Trump rejected claims of security 
concerns.

   The Times wrote in a letter to the judge several days ago that two subpoenas 
seek records beginning on Jan. 1, long before the newspaper published articles 
on July 8 and July 9 that became the basis for the grand jury subpoenas.

   It said that lengthy stretch of records sought would indicate that the 
purpose of the subpoenas might have been "to forage for information about the 
Journalists' source relationships more broadly."

   The Times argued for the phone records subpoenas to be disallowed on the 
grounds that the government had acted in "bad faith" and ignored its own 
protocols by not giving the journalists advance notice that records were being 
sought and by demanding the information "without first conducting any serious 
investigation."

   The Justice Department has justified the grand jury subpoenas by saying that 
"reporters are not the targets, those leaking classified information are." The 
department also said it had complied with its own regulations in issuing the 
subpoenas and had taken "certain" investigative steps before seeking them. It 
said it was authorized to delay disclosure of the phone records subpoenas but 
decided to alert the journalists' lawyers "so that counsel could advance any 
arguments--regardless of merit--in furtherance of their motion."

   In fighting the subpoenas, the Times' lawyers highlighted how the 
government's carelessness could have exposed sensitive information that had 
nothing to do with the journalists. The mother whose phone records were 
mistakenly sought is a mental health professional with confidential client 
relationships and one of the two spouses is the general counsel of a law firm, 
the lawyers said.

   At Thursday's hearing, a final rebuke from the judge to the government came 
when he asked its lawyers to assure him that it won't repeat a scenario that 
left one journalist being served a subpoena by an FBI agent while he was home 
watching the family-friendly movie "The Sheep Detectives," about sheep on a 
quest to solve the murder of their shepherd.

   Said the judge, to loud courtroom laughter: "I can't think of anything more 
inconsistent with 'Sheep Detective' than an FBI agent showing up at your door."