Government withdraws subpoenas for New York Times reporters in leak investigation

The Justice Department told a judge Thursday it will withdraw its subpoenas for grand jury testimony and phone records from New York Times reporters over an article on security systems in the new Air Force One jet. The judge later said it had happened.

During a heated court hearing, U.S. District Judge Arun Subramanian grilled federal prosecutors working for the Justice Department on why it had issued subpoenas before taking further investigative steps, and questioned whether he should issue sanctions over alleged perjury in an application to a judge to secure the subpoenas. Government attorneys acknowledged that they made mistakes when they sought the subpoenas.

In a brief order following the hearing, Subramanian reiterated that the “government has voluntarily withdrawn the challenged subpoenas,” which are now “null and void.”

A Justice Department spokesperson later told WTX US News that Subramanian “threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation,” arguing his conduct “overrides clear longstanding principles and common sense.”

“Make no mistake, this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime,” the spokesperson said.

New York Times deputy general counsel and senior vice president David McCraw said: “Today’s proceeding 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. The Times and our journalists will continue to report and seek the truth without fear or favor. We will not be deterred in the face of tactics like these.”

The New York Times said earlier this month that several of its reporters received grand jury subpoenas soon after it published reporting on President Trump’s use of an old presidential aircraft to depart from the NATO summit in Turkey in early July and security limitations on a new plane donated by the Qatari government. The paper said the subpoenas were issued by Jay Clayton, the U.S. attorney in the Southern District of New York who was tapped by Mr. Trump for director of national intelligence.

The news outlet moved to block the subpoenas, calling them “abusive and improper.” The newspaper said in a court filing Saturday that prosecutors attempted to gain access to phone records of Times journalists and their family members as part of a Justice Department effort to identify sources who spoke to the reporters about security systems on the new Qatari-donated Air Force One plane.

In one batch of subpoenas, the Justice Department sought grand jury testimony from several reporters “in regard to an alleged violation of federal criminal law.” But subpoenas were also sent to third-party service providers for toll records and data for accounts associated with Times’ journalists. Among the information sought by the Trump administration were phone records for the spouses of two reporters and one journalist’s mother.

Two of the subpoenas sought phone records dating back to Jan. 1, well before the Times started reporting on the security concerns with the Qatari-donated airplane.

“That timeframe strongly suggests that the Department is using this investigation not to focus on any purported concerns arising from the July 8 and 9 articles, but instead to forage for information about the Journalists’ source relationships more broadly,” the Times’ lawyers said. 

They added that the timing of the Justice Department’s actions is “deeply troubling” and “raise[s] pressing questions about the conduct of this purported national security investigation.”

Ahead of Thursday’s hearing, Subramanian halted enforcement of the subpoenas while he considered the Times’ request to quash the demands.

From the outset of the hearing, Subramanian made it clear that either the government could withdraw its subpoenas, or he would quash them.

The Justice Department initially asked the judge for a two-week suspension of the subpoenas while officials took further investigative steps. But Subramanian pressed the Justice Department on why it did not try to obtain the information it is seeking through other methods first, saying the agency’s “own regulations and policies indicate that subpoenas are the last step, not the first step.”

Sean Buckley, a lawyer with the U.S. attorney’s office in Manhattan, admitted in court that subpoenas for the reporters’ mother and spouses were an “error” and a “mistake,” saying their information was listed in a public database.

He said that the targets of the government’s investigation are the Times’ sources, not the reporters who were subpoenaed.

During a striking moment in court, Subramanian summoned the prosecutor who applied for a non-disclosure order for the subpoenas — Kevin Sullivan — from the gallery to the government’s table. The judge questioned Sullivan on whether the application falsely stated that the government’s investigation wasn’t public, when its existence had been publicly reported, and why Sullivan had not included that it was related to reporters or the New York Times.

“It was an oversight,” Sullivan said.

As he finished questioning Sullivan, Subramanian asked: “So, are you going to do this again?”

“No, your honor,” replied Sullivan.

The judge said in this type of situation, he would normally ask the party in question to show cause explaining why sanctions should not be imposed for perjury in a filing that was made to the court.

Buckley called the government’s omissions from the subpoena application an “inadvertent failure.” He assured the judge that disclosures would be appropriately addressed in the future, adding: “No one was looking to pull a fast one on the court or anybody else.”

At one point, Subramanian said the government’s “inadvertent errors” are “piling up.”

After a break to confer with the other side, Buckley said, “the government is prepared to withdraw the subpoenas at this time.” He said the government will return to the court if new subpoenas are needed.

Subramanian warned Buckley that, moving forward, he did not want to see the types of issues that have played out in this case. 

“We’re not going to have a situation where someone is watching ‘The Sheep Detectives’ and the FBI shows up at your door?” he said. 

“No,” replied Buckley.

Attorney David O’Neil then spoke on behalf of the Times. He admonished the government, saying the record is “replete with bad faith.”

“There are critical First Amendment issues at stake here,” he said. “Given the chills these subpoenas have already produced, it is damaging to journalists, their jobs and the public’s right to be informed about the conduct of the government.”