Anthony Coley, a Justice Department spokesman, confirmed the seizures in a statement, saying the department “notified four journalists that it obtained their phone toll records and sought to obtain non-content email records from 2017 as part of a criminal investigation into the unauthorized disclosure of classified information.”
“The records at issue were sought in 2020 under Department regulations that apply to records of members of the news media, and the journalists were neither subjects nor targets of the investigation,” Coley said.
He added that forthcoming public reports detailing the department’s seeking of information from journalists for 2019 and 2020 would show that “members of the news media have now been notified in every instance in this period in which their records were sought or obtained in such circumstances.” The department already had released reports detailing the steps it took to obtain such information in 2017 and 2018. A Justice Department spokesman declined to elaborate.
Last month, the Justice Department made similar disclosures to The Washington Post and CNN that it had secretly obtained the records of those organizations’ journalists. Media outlets and free-press advocates denounced the moves, questioning whether the department under Trump had followed its own policies and asserting that such tactics have a chilling effect on journalists’ ability to uncover essential information about the federal government.
President Biden declared recently that he would not allow his Justice Department to seize journalists’ phone or email records, calling the practice “simply wrong.”
“So you won’t let your Justice Department do that?” a reporter asked.
“I will not let that happen,” the president responded.
Though the Justice Department did not follow Biden’s decree with any formal policy guidance, White House press secretary Jen Psaki reiterated the point later when asked whether the Justice Department was aware of his wishes.
“The president made those comments quite publicly, so everyone, I think, is aware,” Psaki said.
The New York Times reported that authorities did not disclose what story generated the Justice Department’s investigation, but noted “the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James B. Comey, then the F.B.I. director, handled politically charged investigations during the 2016 presidential election.”
Executive editor Dean Baquet told the Times that seizing reporters’ phone records “profoundly undermines press freedom.”
“It threatens to silence the sources we depend on to provide the public with essential information about what the government is doing,” he said, adding that he expected the Justice Department “to explain why this action was taken and what steps are being taken to make certain it does not happen again in the future.”
The Post and CNN have similarly pressed for more information on the government’s secret seizure of their reporters’ records, though the Justice Department has repeatedly declined to answer specific questions.
In The Post’s case, the department sought the records of reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, from April 15, 2017, to July 31, 2017. The letter does not state the purpose of the phone records’ seizure, but toward the end of the time frame mentioned in the letters, those reporters wrote a story about classified U.S. intelligence intercepts indicating that, in 2016, then-Sen. Jeff Sessions (R-Ala.) had discussed the Trump campaign with Sergey Kislyak, Russia’s ambassador to the United States at the time. Sessions went on to become Trump’s first attorney general.
In CNN’s case, the department sought records of Pentagon correspondent Barbara Starr for the two-month period between June 1, 2017, and July 31, 2017. In that period, according to CNN, Starr reported on options the U.S. military had prepared to present to Trump on North Korea, as well as other topics.
On May 24, Washington Post publisher and chief executive Fred Ryan wrote to Attorney General Merrick Garland requesting “an immediate meeting” to discuss the newspaper’s concerns over the records seizures.
Of particular concern is that the department did not notify The Post in advance of its desire for information and engage in negotiations, as the agency’s policies dictate except in instances in which the attorney general thinks doing so could jeopardize an investigation.
“We believe the Department has an obligation to explain its actions, including its failure to provide the Post and our journalists with notice of these subpoenas and an opportunity to assert our rights to resist the government’s seizure of our records,” Ryan wrote.
To date, such a meeting has not been scheduled.