During the last few weeks of the Trump administration, and under President Joe Biden, the Justice Department waged a secret legal battle to access the email recordings of four New York Times reporters in an attempt to identify their sources, he reported on Friday evening. main lawyer of the newspaper.
According to the lawyer, while the Trump administration has never informed the NYT of the effort, the Biden administration has gone further this year, informing some CEOs of the Times about it, but imposing an order to silence so that the information is not made. public, said the lawyer in question, David McCraw, who called the initiative unprecedented.
The order of silence has kept leaders from revealing government efforts to seize the files, not even to editor Dean Baquet and other prominent figures in the New York Times newsroom.
McCraw said on Friday that a federal court lifted the silence order, which had been in effect since March 3, leaving him free to reveal what had happened. The battle revolved around an effort by the Justice Department to seize email records from Google, which operates the NYT email system and had resisted the access to information effort.
The disclosure comes two days after the Biden administration’s Justice Department informed the four reporters that in 2020 the Trump administration, in an attempt to identify their sources, secretly seized phone records for several months in early 2017. Similar reports have been made in recent weeks of the seizure of communications tapes by reporters at the Washington Post and CNN.
Dean Baquet condemned both administrations, Trump and Biden, for their actions, describing the effort as an attack on the First Amendment.
“It’s clear that Google did the right thing, but things should never have come to this,” Baquet said. “During the last 15 days of the Trump administration, the Justice Department has relentlessly researched the identity of sources of information used in media coverage that clearly served the public interest. As I said before, this seriously undermines freedom of the press.
There is no precedent, McCraw said, for the government to impose a silence order on New York Times employees in connection with an investigation into a information leak. The attorney also said there was no precedent for the government to seize the phone records of NYT professionals without notice of the effort.
A Google spokesperson said that while the company does not comment on specific cases, the company “is firmly committed to protecting our customer’s data, and we have a long history of lobbying to inform our customers of any legal request “.
Anthony Coley, a spokesperson for the Department of Justice, noted that “on several occasions in recent months” the Department of the Biden administration had acted to delay the implementation of the silence order and then had “Voluntarily canceled the order before the submission of any file”.
He added: “The Justice Department strongly values a free and independent press and is committed to upholding the First Amendment.”
Biden said last month he would not allow the Justice Department during his administration to seize tapes of communications that could reveal journalists’ sources, calling the practice “just plain wrong” (under the Obama administration , the Department of Justice has sought access to this type of data in various investigations into information leaks).
This week’s letter revealing the seizure of telephone tapes involving New York Times reporters – Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt – suggested there would be a separate dispute over data that revealed who them journalists had contacted by email.
The letters said the government had also obtained a court order to seize the tapes of journalists’ emails, but that “no recordings were obtained” without giving further details. But, McCraw said, with the suspension of the Silence Order, he was free to explain what had happened.
Washington attorney general’s office prosecutors on Jan.5 obtained a sealed court order from a magistrate requiring Google to disclose the information confidentially. But Google resisted, apparently demanding that the New York Times be informed, as provided for in its contract with the company.
The Justice Department continued to press the request after the Biden administration came to power, but in early March, prosecutors backed down and asked a judge for permission to brief McCraw. The disclosure to the lawyer, however, was accompanied by a court order prohibiting him from discussing the case with others.
McCraw said it was “amazing” to receive an email from Google letting him know what was going on. At first, he said, he didn’t know who the prosecutor was, and as the case was sealed (subject to an order of silence), there was no court document he could access to. this subject.
The next day, McCraw said, he was informed of the name of the prosecutor – an assistant district attorney in Washington, Tejpal Chawla – and opened negotiations with him. Chawla eventually agreed to ask the judge to change the order of silence so that McCraw could discuss the case with the New York Times chief prosecutor and the firm’s outside lawyers, and then with two senior executives of the newspaper: AG Sulzberger. , the editor, and Meredith Kopit Levien, the managing director.
“We made it clear that if the silence order was not overturned, we intended to challenge it in court,” McCraw said. Then, on June 2, the Justice Department told him it would ask the court to overturn the order imposed by Google, while revealing the previous seizure of phone records, which McCraw had not been informed of. current until then.
The lawyer described his situation as “unsustainable,” particularly when he spoke to NYT reporters about speculation about some sort of dispute involving Google and a Times-linked leak investigation.
The Justice Department did not say which leak it was investigating, but the identities of the four journalists targeted and the date range of the communications sought suggest that the investigation focused on classified information contained in a text of the report. April 2017 on how FBI Director James Comey conducted politically motivated investigations during the 2016 presidential campaign.
The text included a discussion of an email or note from a Democratic agent that was stolen by Russian hackers, but was not part of the set of documents intelligence officials said Russia had. provided to WikiLeaks to be made public as part of its hacking and disclosure of documents for the purpose of manipulating the 2016 election.
The US government uncovered the document, which reportedly expressed confidence that Attorney General Loretta Lynch would not let an investigation into Hillary Clinton’s use of a private mail server go too far. Comey was said to have feared that if Lynch made and announced the decision not to prosecute Hillary in criminal proceedings, Russia would take the note publicly to make the decision appear illegitimate. This would have led to Comey’s unorthodox decision to later announce that the FBI recommended that Hillary not be charged.
The Justice Department under then President Donald Trump, who fired Comey and called him an enemy, had for years been looking for enough evidence to accuse him of the crime of unauthorized disclosure of classified information . This effort ended up focusing on whether Comey had anything to do with the NYT learning about the existence of the document stolen by Russian hackers.
Comey’s investigation into the leaks was considered within the Justice Department to be one of the most politicized and controversial investigations, even by the standards of a department that has already been repeatedly persuaded to use leak investigations and other policies related to publishing books to attack former public office holders who have criticized Trump.
In the past year, prosecutors have questioned whether or not to end the investigation into the Comey leaks, said two people familiar with the case, in part because there appeared to be little evidence that the former FBI director shared classified information with the press.
Ministry officials wondered last fall whether the investigation had been exhausted and whether prosecutors should write a memo explaining why Comey would not be prosecuted, one of the people said. But the FBI and career prosecutors in charge of the case wanted to keep the investigation open, the two said, and in January prosecutors obtained a special court order requiring Google to turn over data relating to e- mails from journalists.
With Trump set to step down as president, the order has been viewed as controversial by some in the department, according to two people with knowledge of the matter. She was seen as extraordinarily aggressive in a case that would likely end without criminal charge. During the transition from the Trump administration to the Biden administration, at least one official wrote in the memo that the case should be closed.
In court cases to force Google to hand over documents that would reveal who was communicating with the four journalists who signed the report, the Justice Department persuaded the judge the secrecy was warranted because, as the judge wrote on January 5, “There are reasons to believe that notification of the existence of this order will seriously undermine the current investigation, in particular by offering its targets the possibility of destroying or manipulating evidence.”
The Jan. 5 document does not acknowledge that the existence of the Comey leak investigation and its subject matter were already known, as the New York Times published it nearly a year earlier. It is not clear whether the Justice Department informed the judge of the article or instead suggested that the investigation was still a well-protected secret.