Cameron Barr, The Post’s acting executive editor, said: “We are deeply troubled by this use of government power to seek access to the communications of journalists. The Department of Justice should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
News organizations and First Amendment advocates have long decried the government practice of seizing journalists’ records in an effort to identify the sources of leaks, saying it unjustly chills critical newsgathering. The last such high-profile seizure of reporters’ communications records came several years ago as part of an investigation into the source of stories by a reporter who worked at BuzzFeed, Politico and the New York Times. The stories at issue there also centered around 2017 reporting on the investigation into Russian election interference.
It is rare for the Justice Department to use subpoenas to get records of reporters in leak investigations, and such moves must be approved by the attorney general. The letters do not say precisely when the reporters’ records were taken and reviewed, but a department spokesman said the decision to do so came in 2020, during the Trump administration. William P. Barr, who served as Trump’s attorney general for nearly all of that year, before departing Dec. 23, declined to comment.
The Justice Department defended its decision to subpoena Post reporters’ records as an investigative step of last resort that was not taken lightly.
“While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
The phone records taken include the numbers of all the calls made to and from the targeted phone over the specified time period, and how long each call lasted, but do not include what was said in those phone calls. Investigators often hope such records will provide clues about possible sources the reporters were in contact with before a particular story published.
The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for the reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails.
The letter does not state the purpose of the phone records seizure, but toward the end of the time period mentioned in the letters, those reporters wrote a story about classified U.S. intelligence intercepts indicating that in 2016, Sen. Jeff Sessions (R-Ala.) had discussed the Trump campaign with Sergey Kislyak, who was Russia’s ambassador to the United States. Justice Department officials would not say if that reporting was the reason for the search of journalists’ phone records. Sessions subsequently became President Donald Trump’s first attorney general and was at the Justice Department when the article appeared.
About a month before that story published, the same three journalists also wrote a detailed story about the Obama administration’s internal struggles to counter Russian interference in the 2016 election.
Entous, who now works at the New Yorker, declined to comment.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said the incident “raises serious First Amendment concerns because it interferes with the free flow of information to the public,” and he called on the Justice Department to explain “exactly when prosecutors seized these records, why it is only now notifying The Post, and on what basis the Justice Department decided to forgo the presumption of advance notification under its own guidelines when the investigation apparently involves reporting over three years in the past.”
The two letters received at The Post were signed by Channing D. Phillips, the acting U.S. attorney for the District of Columbia, and John C. Demers, the head of the Justice Department’s national security division. The correspondence listed five phones for which records had been seized: Nakashima’s work, cellphone and home phone, and Miller’s work phone and cellphone. The letter to Entous cited his cellphone number.
Parts of the timeline of the leak investigation are still unclear, and many of those details are often withheld by investigators. Under Justice Department regulations that guide investigations involving media records, the department is usually required to eventually tell the news organization that it took the step of obtaining such records. In this case, the decision to get the records occurred during the Trump administration and the notification of the reporters fell to the Biden administration.
The seizure of reporters’ phone records has been a controversial topic in recent years, as both the Trump and Obama administrations escalated efforts to stop leaks and prosecute government officials who disclose secrets to reporters.
In early August 2017 — days after the time period covered by the search of The Post reporters’ phone records — Sessions held a news conference to announce an intensified effort to hunt and prosecute leakers in government.
“This culture of leaking must stop,” Sessions said, noting that the number of leak investigations had tripled since the end of the prior administration. That announcement seemed aimed at appeasing Trump, who had publicly complained about leaks that made him look bad, and branded Sessions “weak” on hunting leakers.
Justice Department policy dictates that investigators in leak cases should exhaust all other possible sources of information before considering trying to examine journalists’ records.
During the Obama administration, the department prosecuted nine leak cases, more than all previous administrations combined. In one case, prosecutors called a reporter a criminal “co-conspirator” and secretly went after journalists’ phone records in a bid to identify reporters’ sources. Prosecutors also sought to compel a reporter to testify and identify a source, though they ultimately backed down from that effort.
In response to criticism about such tactics, in 2015, Attorney General Eric H. Holder Jr. issued updates to the rules about media leak investigations aimed at creating new internal checks on how often and how aggressively prosecutors seek reporters’ records.
In response to Trump’s concerns, Sessions and others discussed changing the rules to seek journalists’ phone records earlier in leak investigations, but the regulations were never changed.