DOJ Withdraws NY Times Subpoenas After Judge Notices It Never Bothered To Follow The Rules For Subpoenaing Reporters

from the how-dare-anyone-expect-the-doj-to-follow-the-law dept

Just last week we had the story of the Trump DOJ issuing very questionable subpoenas of NY Times journalists while trying to track down who leaked information to those reporters regarding the potentially catastrophic security flaws of the “gift” 747 plane he received from Qatar. As we noted in that original post, this appeared to be a wholly abusive use of the government’s subpoena powers, and well outside the norm.

On Thursday, the DOJ agreed to withdraw those subpoenas, but only after a long court hearing in which the DOJ thoroughly embarrassed itself in front of the judge, Arun Subramanian, who noted many, many problems with the subpoenas, which the DOJ tried to tiptoe around, calling them “inadvertent errors.” Most of the media coverage of this is pretty weak, but Matthew Russell Lee of the Inner City Press did a wonderful liveposting of the hearing that suggests just how badly the DOJ fucked this up.

It started out with the DOJ saying they weren’t going to withdraw the subpoenas, and claiming that they believed the subpoenas were “properly” issued. But the court quickly pointed out that there is precedent in the Second Circuit regarding when and how you can subpoena journalists, and the DOJ basically ignored all of that. The DOJ’s Sean Buckley argued that following those rules would amount to conceding the rules applied — something the DOJ apparently didn’t want to admit, leading the judge to say that following the rules wouldn’t be seen as any such admission.

Judge Subramanian kept pressing Buckley on why the DOJ rushed to issue these incredibly broad subpoenas when there appeared to be much more straightforward ways to obtain the information they were seeking. Indeed, another part of what was discussed is that the DOJ’s subpoenas were so broad that they included phone records of reporters’ relatives who had nothing whatsoever to do with the reporting:

A Justice Department lawyer, Sean Buckley, cast the government’s missteps as inadvertent errors and said: “No one was trying to pull a fast one.” Buckley apologized for other subpoenas that sought records for phone numbers belonging to one reporter’s mother and two of the journalists’ spouses.

“That was an error, judge, which we own,” Buckley said. “It was a consequence of trying to move quickly.”

“These things are starting to pile up,” Subramanian said, becoming increasingly testy.

The judge also explored whether or not the DOJ misled the judge who signed off on the subpoenas, by not letting them know that the subpoenas were for information associated with reporting. He even noted that the Assistant US Attorney who got the subpoenas, Kevin Sullivan, was in the room, but not at the table, asking him to come out of the galley and join the DOJ table (this is not something that usually happens).

Following that was an incredible exchange wherein Judge Subramanian asked Sullivan about whether he told the original subpoena-issuing judge that the subpoenas were for reporters, leading Sullivan to say it “was an oversight” and that later on they “did legal research.”

Around that point, a clearly fed up Subramanian said that if this were a normal case, this would be the point where he would issue an order to show cause why the DOJ shouldn’t face sanctions for abusing the subpoena process. There was some more back and forth scolding, including Subramanian pointing out that the “errors” for the DOJ seemed to be “piling up” and asking the DOJ if he should expect to see more mistakes like this moving forward.

Around this point, the DOJ regrouped and changed their stance from earlier in the hearing, saying they were now willing to drop the subpoenas. After the hearing was over, the ever petulant Trump Justice Department quickly whined to the media how unfair it was that federal judges expected them to actually follow the rules and stuff:

After the hearing, the Justice Department lashed out at Subramanian in a statement, saying he “threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation.”

“The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides clear longstanding principles and common sense — blocking the grand jury from receiving core evidence in a national security investigation,” the statement said.

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

Once again, we have an overly aggressive, understaffed, and generally incompetent DOJ that seems not to realize that there are significant and important Constitutional limits on what it can do. And when a judge calls them out on it, the fact that their immediate response is to start whining about it like they were the victims here suggests a good reason that the entire DOJ will need a massive overhaul post-Trump.

Filed Under: 1st amendment, air force once, arun subramanian, doj, free speech, kevin sullivan, qatar, sean buckley, subpoenas

Companies: ny times