The DOJ ‘Forgot’ To Mention The Law Restricting Searches Of Journalists. The Judge Is Not Happy

from the enough-of-this-nonsense dept

We wrote recently about the FBI’s pre-dawn raid on Washington Post reporter Hannah Natanson’s home, in which agents seized two laptops, a phone, a portable hard drive, a recording device, and even a Garmin watch. Natanson covers the federal workforce and had cultivated nearly 1,200 confidential sources across more than 120 government agencies. She was not accused of any crime. She was not the target of any investigation. The FBI told her that much while they were busy carting away basically everything she uses to do her job.

The raid was connected to the prosecution of Aurelio Perez-Lugones, a government contractor charged with retaining classified information. The DOJ wanted to rummage through a journalist’s entire digital life to find evidence against someone else. And they got a warrant to do it by, among other things, simply never mentioning to the magistrate judge that there’s a federal law—the Privacy Protection Act of 1980—that exists specifically to prevent exactly this kind of thing from happening.

Last week, at a hearing on the Washington Post’s motion to get the devices back, Magistrate Judge William Porter let the DOJ attorneys have it. And then on Tuesday, he issued his ruling, blocking the government from searching Natanson’s devices and rescinding the portion of the warrant that would have let them do so.

The ruling is worth reading in full. Porter doesn’t mince words about what happened, even as he accepts some responsibility for his own failure to catch the omission:

Before reaching the merits, the Court addresses a matter of significant concern: the government’s failure to identify and analyze the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa et seq. (“PPA”), in its search warrant application. As the judge who found probable cause and approved the search warrant, the Court acknowledges that it did not independently identify the PPA when reviewing the warrant application. As far as this Court knows, courts have approved search warrants directed at members of the press in only a handful of instances. This Court had never received such an application and, at the time it approved the warrant, was unaware of the PPA. This Court’s review was limited to probable cause, and the Court accepts that gap in its own analysis. But the government’s failure to identify the PPA as applicable to a request for a search warrant on a member of the press—and to analyze it in its warrant application—is another matter. This omission has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.

Credit to the judge for admitting his own gap in knowledge. But, come on: EDVA handles more national security cases than practically any other jurisdiction in the country. That a magistrate judge there could be unaware of the Privacy Protection Act—a statute that exists specifically to prevent the government from doing exactly what it was asking him to authorize—seems bizarre. Though, it also suggests how rarely the DOJ even bothers to seek these warrants, and how heavily the system depends on prosecutors acting in good faith. Which brings us to the far bigger problem: the DOJ’s deliberate decision to never bring it up.

And it wasn’t just some overworked junior attorney who “forgot.” As Porter notes in his ruling, lawyers at the highest levels of the DOJ were involved in getting this warrant approved:

The Court’s communications with the government over two days were not limited to the local AUSA. Counsel from the highest levels of the DOJ participated in at least one of those calls. Many government lawyers had multiple opportunities to identify the PPA as controlling authority and to include an analysis of it in the warrant application. None of them did.

None of them. Not the assistant US attorney who filed the application. Not the Principal Deputy Assistant Attorney General of the National Security Division who was on the phone. Not anyone in the chain that apparently went all the way up to Attorney General Pam Bondi, whose approval is required by the DOJ’s own regulations before you can seek a warrant against a member of the press.

The attorney who submitted the application, Gordon Kromberg, is no novice. He’s a veteran national security prosecutor who worked on the Julian Assange case—a case built almost entirely around the intersection of the Espionage Act and journalism. The idea that he just didn’t think of the Privacy Protection Act while applying for a warrant to search a reporter’s home for evidence related to an Espionage Act prosecution beggars belief. (Kromberg was also accused of political shenanigans in that case too.)

The Freedom of the Press Foundation apparently agrees: they’ve filed a bar complaint against Kromberg with the Virginia State Bar, arguing that his failure to disclose the PPA violated Rule 3.3—the “Candor Toward the Tribunal” rule. As the complaint notes, this “could not have been a mere oversight” given that the warrant “predictably” became national news and should have required authorization from the highest levels of the DOJ, including the Attorney General.

At the hearing last week, as CNN reported, Porter made his feelings about this fairly clear:

“How could you miss it? How could you think it doesn’t apply?” Magistrate Judge William Porter asked a DOJ lawyer during a hearing in Alexandria, Virginia.

“I find it hard to believe that in any way this law did not apply,” Porter added later.

[….]

“You don’t think you have an obligation to say that?” Porter said at one point. “I’m a little frustrated with how the process went down.”

When DOJ attorney Christian Dibblee tried to argue that the decision was made by officials above him and that he understood the judge’s “frustration,” Porter shot back: “That’s minimizing it!”

Dibblee also tried the remarkable argument that the Privacy Protection Act wasn’t the kind of “adverse authority” that lawyers are typically required to disclose when making requests for warrants. A federal statute specifically governing searches of journalists’ materials somehow doesn’t count as relevant law when you’re applying for a warrant to search a journalist’s materials? Sure. That’s believable.

Porter’s ruling addresses this attempted dodge in a footnote that is quietly devastating. Kromberg claimed at the hearing that he didn’t mention the PPA because he believed the statute’s “suspect exception” applied—the narrow carve-out for when the journalist herself has committed a crime. But Porter dismantles that excuse:

The Court finds this explanation inadequate and only highlights why the AUSA should have analyzed the PPA in the application. The government cannot pretextually label a reporter a suspect simply to gather evidence against the actual target. DOJ’s governing guidelines between 2013 and 2020 prohibited invoking the suspect exception “if the sole purpose is to further the investigation of a person other than the member of the news media.” See 28 C.F.R. § 50.10(d)(5) (2016), https://perma.cc/S52Q-BKGD. Such a rule would mean that any invocation of the Espionage Act’s receipt provision, see 18 U.S.C. § 793(c), would automatically strip a reporter of PPA protection—an interpretation that would render the statute a nullity and cannot be reconciled with Congress’s purpose in enacting it. That the AUSA claims to have received contrary advice during the very period when DOJ policy reflected this limitation only underscores the inadequacy of the government’s analysis here.

In other words: Kromberg’s excuse for not mentioning the law actually makes it worse, because it suggests the DOJ’s position is that any time a journalist receives classified information—which is what investigative national security journalists do—the PPA just evaporates. Which would make the statute entirely meaningless. Which is exactly how this DOJ would prefer to treat it.

The ruling also highlights just how much the DOJ took from Natanson beyond what it had any conceivable right to. According to the CNN report linked above, at the hearing, the DOJ “quickly conceded ‘there is more information that was received than what was pursuant to the warrant,’ drawing a scoffing laugh from the judge.” Porter’s written opinion is blunt about the scope of the damage:

No easy remedy exists here. Movants’ First Amendment rights have been restrained. The government seized all of Ms. Natanson’s work product, documentary material, and devices, terminating her access to the confidential sources she developed and to all the tools she needs as a working journalist. The government’s proposed remedy—that she simply buy a new phone and laptop, set up new accounts, and start from scratch—is unjust and unreasonable.

The DOJ’s argument that Natanson could just “start from scratch” is the kind of thing that sounds reasonable only if you’ve never thought about journalism for more than thirty seconds. Or, I guess, if you’re being deliberately obtuse in court while trying to create chilling effects for journalists. Which is just part of the reason this is a clear First Amendment violation:

The government has seized the entirety of Ms. Natanson’s work product: her active stories, her notes on future investigations, and her background and confidential source material that, once compromised, cannot be replaced. The government’s suggestion that she can simply start from scratch fails to recognize the realities of modern journalism and the value of confidential source relationships cultivated over time. The Court finds that seizing the totality of a reporter’s electronic work product, including tools essential to ongoing newsgathering, constitutes a restraint on the exercise of First Amendment rights.

Separately, Porter refused to let the government’s own filter team conduct the review of the seized materials, citing a Fourth Circuit precedent that directly applies here. The government wanted its own people to sift through all of Natanson’s data. Porter said no, invoking language from the circuit court that captures the absurdity of the DOJ’s proposal perfectly:

Given the documented reporting on government leak investigations and the government’s well-chronicled efforts to stop them, allowing the government’s filter team to search a reporter’s work product—most of which consists of unrelated information from confidential sources—is the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse…. The concern that a filter team may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.

Instead, Porter will conduct the review himself, which is the right call under the circumstances, even if it means the process will take significantly longer.

Porter also explains how the DOJ’s conduct has changed the way he will approach their representations going forward. A federal judge, explaining on the record that he can no longer take the government at its word:

In its day-to-day workings, this Court affords government attorneys a presumption of regularity, including by assuming that federal prosecutors have satisfied their obligation to disclose controlling and relevant authority…..

The government’s conduct has disturbed that baseline posture of deference.

That phrase—”disturbed that baseline posture of deference”—is doing a lot of work. It’s a judge admitting, as diplomatically as the federal judiciary allows, that the DOJ exploited his trust. Porter mentioned in passing that the week he received this warrant request there were 45 other such requests.

It feels a bit late for Porter to notice this, but the federal judiciary can be slow. For years we’ve called out how the DOJ frequently lies to judges, especially in any case they can slap a “national security” label on. And it’s been a long-term Techdirt complaint that judges give them a tremendous amount of unearned deference.

The DOJ lies. But this DOJ is so over the top in its misrepresentations, it appears judges are finally learning that.

The “presumption of regularity” that Porter describes is supposed to be earned through consistent good-faith conduct, and this DOJ has burned through whatever reserves of credibility it had.

The bar complaint and the judge’s frustration are both welcome. But what has already happened cannot be undone. Natanson’s 1,200 confidential sources—federal employees who reached out to her because they were afraid of retaliation from this administration—now know that their communications may be sitting in government hands. The fact that a judge eventually blocked the search doesn’t un-ring that bell. Every source who has ever talked to Natanson, and every source thinking about talking to any journalist covering this administration, has received the message loud and clear.

Porter seems to understand this. His closing paragraph carries what you might charitably call restrained skepticism:

The Court’s genuine hope is that this search was conducted—as the government contends—to gather evidence of a crime in a single case, not to collect information about confidential sources from a reporter who has published articles critical of the administration. The Court further hopes the record ultimately bears out the government’s representations

“Genuine hope.” A federal judge—bound by norms of restraint, writing in a judicial opinion—is telling us that the best he can offer is that he hopes the DOJ didn’t exploit his courtroom to target a journalist’s sources. He’s not saying he believes them. He’s not saying the evidence supports their claims. He’s saying he hopes. That’s as close as a sitting federal judge can come to calling the government liars without actually using the word. And he’s not alone—we’re hearing more and more judges feeling the need to speak out.

The outcome here is not the worst case scenario. Porter blocked the search, rescinded the review authorization, and will conduct the review himself rather than letting the DOJ’s own team paw through a reporter’s entire professional life. But the damage from the raid itself—the seizure, the chilling effect, the signal sent to every government employee who might consider talking to a reporter—was baked in the moment the FBI knocked on Natanson’s door at six in the morning.

If federal judges want this to stop, “frustration” expressed in hearings and “disturbed” confidence described in memorandum opinions aren’t going to cut it. Judges need to start imposing real consequences—sanctions, referrals, contempt—on individual DOJ lawyers who treat “candor toward the tribunal” as an optional courtesy rather than a professional obligation. Because right now, the DOJ has learned that the price for misleading a court to execute an unconstitutional raid on a journalist is a stern talking-to and a slightly more complicated review process a month later. Omit the inconvenient law. Exploit the judge’s trust. Execute the raid. Deal with the consequences later.

Judges used to “trust” DOJ representations. Now we’ve blown right past “trust, but verify” all the way to “never trust, always verify.”

Judge Porter has now learned, painfully and publicly, that this DOJ is not acting in good faith. He’s unlikely to be the last such judge.

Filed Under: 1st amendment, aurelio perez-lugones, doj, fbi, free speech, gordon kromberg, hannah natanson, journalism, privacy protection act, sources, william portern

Companies: washington post