Newly unsealed court documents show the Trump Justice Department sought a court order for the communications records of three Washington Post reporters in the final days of William P. Barr’s tenure as attorney general in 2020, as prosecutors sought to identify sources for three articles written in 2017.
In addition, the documents indicate the extent to which federal investigators strongly suspected the disclosures of classified information were coming from Congress.
The new details about the investigation come as senior Justice Department officials are working on regulations to limit the ways in which they can pursue reporters’ data when hunting for the sources of classified information.
Amid an outcry from First Amendment advocates, President Biden has called for an end to the practice of seizing journalists’ phone and email records.
The 12-page application for the court order — signed by Michael Sherwin, then-acting U.S. attorney for the District of Columbia — seeks the email records of three reporters whose identities are redacted in the public version of the document. Previous department documents have identified the reporters as Ellen Nakashima, Greg Miller and Adam Entous, who has since left The Post and moved to the New Yorker.
The application says the investigation sought to determine who might have told the reporters classified details contained in three news stories: a May 2017 report about Trump adviser and son-in-law Jared Kushner’s conversations with Sergey Kislyak, Russia’s ambassador to the United States at the time; a June 2017 report about the Obama administration’s efforts to battle Russian election interference the previous year; and a July 2017 report about conversations between Kislyak and Jeff Sessions, who was a U.S. senator in 2016 at the time of the conversations and later became Donald Trump’s first attorney general.
The application makes clear that investigators believed people working in Congress were the likely sources of the information. No one was ever charged with making disclosures to the reporters, and the unsealing of the application is further evidence that the investigation is over.
The Justice Department first revealed in May that it had sought phone and email records from the three reporters. Investigators obtained phone records but were unable to obtain email records for the journalists, according to Justice Department notification letters sent to the reporters.
Since revealing that it used secret orders to obtain Post reporters’ records, the Justice Department has made similar disclosures regarding efforts to secretly obtain communication records of four New York Times reporters and one CNN reporter for unrelated stories.
In all of those cases, investigators sought not the content of the conversations or messages, but the records of who the reporters were contacting and when.
In ordering the release of key documents Tuesday, U.S. Magistrate Judge Zia M. Faruqui noted in an order that even after acknowledging the investigation’s existence, prosecutors continued to try to keep secret the specific stories under investigation.
The judge refused, questioning why “the scope of unsealing was so narrow” given that the investigation was closed without any criminal charges. In a four-page order, Faruqui noted the government’s “sealing power may not be exercised indiscriminately,” and cited a July 2020 opinion written by the current attorney general, Merrick Garland, in his former position as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
“A sealed matter is not generally, as the government persists in imagining, ‘nailed into a nondescript crate, stored deep in a sprawling, uncatalogued warehouse,’ ” Faruqui wrote, quoting Garland’s evocation of the 1981 film “Raiders of the Lost Ark,” a movie that ends with one of history’s greatest treasures being buried inside a sprawling bureaucracy.
Faruqui chided prosecutors for their initial reluctance to release even redacted documents, saying that their “anti-redaxer stance is puzzling” and adding that the government “has a continuing duty to timely move to lift a non-disclosure order after the factors warranting it expire.”
The Justice Department and Barr declined to comment on Tuesday.
Washington Post publisher Fred Ryan said: “Unsealing the application to obtain our reporters’ email records was an important step. It remains essential that a full accounting of what happened be made public.”
The battle over how far the government can go in its pursuit of suspected leakers pits the department’s role of policing national security agencies against the constitutional protections of a free press. Garland has twice met privately with news executives to discuss their concerns as his deputies continue to craft a new policy. Separately, some lawmakers have pressed for legislation so that the government’s practice cannot be changed from administration to administration.
The law and the practice of using secret subpoenas to get reporters’ records go back years — the Obama administration escalated the practice, then dialed it back during a similar burst of criticism. But the period at the heart of the recent cases underscores just how determined the Trump administration was to put a stop to stories involving national security that it considered damaging.
Just weeks after one of the Post stories at issue in the recent investigation, Sessions — who was then attorney general — held a news conference to decry leaking and say the government would expand its efforts to identify and punish anyone sharing classified information.
At that event, Daniel Coats, then the director of national intelligence, said the hunt for reporters’ sources would go well beyond intelligence agencies. “These national security breaches do not just originate in the intelligence community,” he said. “They come from a wide range of sources within the government, including the executive branch and including the Congress.”
The court filing states that the sensitive information under investigation in the Post stories had been shared with some members of Congress and their staffs.
“In furtherance of a Congressional Inquiry, in 2017, the U.S. Congress requested access to certain highly classified national defense information in the possession of the U.S. Intelligence Community,” the court filing states. “Given the extreme sensitivity of this information… it was only made available to select Congressional Members and staff” in April 2017.