WASHINGTON (NYTIMES) – The New York Times asked a court Tuesday (June 8) to unseal legal filings by the US Justice Department that would reveal how prosecutors persuaded a court to cloak secrecy over an order to seize the email records of four Times reporters and then to prevent Times executives from speaking about the matter.
The filing came as Attorney-General Merrick Garland scheduled a meeting Monday with leaders of three news organisations – The Times, The Washington Post and CNN – to discuss concerns over prosecutors’ practices in leak investigations, according to two people familiar with the matter.
In recent weeks, the Biden Justice Department has disclosed Trump-era seizures of phone records for reporters at each of those organisations.
After the first two disclosures, involving The Post and CNN, President Joe Biden vowed not to let the Justice Department go after reporters’ sourcing information during his administration.
But last week, it came to light that the department had also secretly seized Times reporters’ phone records – and fought a separate, and ultimately unsuccessful, battle to obtain their email records from Google, which runs the Times’ email system.
The Trump Justice Department obtained a court order to Google on Jan 5. After Google resisted complying, the Justice Department under Biden kept the effort going until dropping it last Wednesday.
In an added twist, the government in March allowed a handful of Times lawyers and executives to know about the order and the legal fight over it. But it imposed a gag order that prevented them from disclosing it to the public or colleagues.
Among others, Dean Baquet, the executive editor, was kept in the dark until a judge lifted the gag order Friday.
The Justice Department had initially declined to comment on whether it was accepting Biden’s seemingly off-the-cuff vow the previous month as official policy. But on Saturday, the department announced that it was changing what had been long-standing policy across administrations of both parties, and would no longer permit prosecutors in leak investigations to seize “source information from members of the news media doing their jobs.”
Still, the Times’ lawyers contend that the public has a right to know more about the court proceedings over the now-concluded fight for the emails. In particular, they are asking what prosecutors said in support of keeping the initial order secret and later imposing the gag order on Times executives.
On Jan 5, when the judge initially ordered Google to turn over the reporters’ email records, he wrote, “there is reason to believe that notification of the existence of this order will seriously jeopardise the ongoing investigation, including by giving targets an opportunity to destroy or tamper with evidence.”
But the filing noted that the apparent leak investigation and its target was already public knowledge, and had been reported both by The Times and by The Post. (The Trump Justice Department was investigating whether James Comey, the former FBI director, had been the source for leaked classified information about Russian hackers in a 2017 article by the four reporters.)
“These orders represent an extraordinary challenge to press freedom, undermining the ability of the press to report truthful information of vital public concern,” the filing by the Times’ lawyers said.
“They appear to have been obtained in contravention of Justice Department regulations and practice. And the reasoning set out in the orders raises important questions about the record and representations put before the court.”