Lawyers for the Department of Justice told a judge Thursday they would withdraw grand jury and phone-record subpoenas for New York Times reporters, court filings and a motion unsealed Monday show; the filings say the government sought phone records of several Times journalists and some of their relatives as part of an investigation into reporting about a Qatari-gifted Air Force One jet.
The filings say grand jury subpoenas seeking testimony were served July 10 on three journalists and that several subpoenas were delivered to the reporters at their homes.
The Times asked the court to block subpoenas sent to third-party phone service providers that sought the phone records of the reporters and their relatives, including the spouses of two reporters and one reporter's mother; the filings say some phone-records subpoenas were issued on the same day as the grand jury subpoenas, with additional subpoenas issued after the paper moved to quash the grand jury subpoenas.
David A. O'Neil of Debevoise & Plimpton is leading the Times' legal team, which wrote that the government's actions “violate the most basic First Amendment protections for newsgathering activity” and said the paper would argue in federal court that the White House was abusing the justice system to intimidate reporters.
The Times said the FBI sought phone records from telephone providers for five reporters, the spouses of two reporters and the mother of one without initially disclosing those subpoenas to the paper, which the Times said made it impossible to seek a court to intercede.
Katherine Marsh, the wife of Times reporter Julian E. Barnes, said, "When something like this happens, it's very frightening." Marsh said she later learned the government was seeking her phone records and described the visit as unsettling.
The paper pointed to reporting that the FBI director, while at the White House, personally oversaw the issuing of the subpoenas, which the Times said indicates the actions were motivated by considerations of the administration's wishes.
In Senate testimony last week, U.S. Attorney Jay Clayton said he had followed all appropriate policies and sought to "limit to the greatest extent possible any intrusion into the operation of the free press." The filings note Clayton has been nominated to be the next director of national intelligence.
A memo submitted on Tuesday by Clayton and his chief counsel acknowledged the government had only informed the Times' legal team of the subpoenas for the phone records days after they had been issued with nondisclosure orders to the phone service providers and said the government determined on July 17 that it was appropriate to alert counsel to those subpoenas.
A Justice Department spokesperson said the subpoenas were "in full compliance with federal law and internal department policy," and said the department had complied with its own regulations, had taken investigative steps before seeking the subpoenas, was authorized to delay disclosure of the subpoenas and had decided to alert lawyers for the journalists to give them an opportunity to challenge; the spokesperson added that "reporters are not the targets, those leaking classified information are."
David McCraw, the paper's senior vice president and deputy general counsel, said the company moved to quash the "abusive and improper subpoenas."
The filings and reporting say the subpoenas followed the Times' first report that the Secret Service had advised the president to use the older presidential plane to depart from Turkey after Mr. Trump flew on the new jet to a NATO summit in Ankara and questions arose about the new plane's defensive capabilities; the motion notes the new jet was a present from Qatar that the administration spent $400 million to retrofit and upgrade.
Critics of the filings noted the escalation follows an FBI search in January of a Washington Post reporter's home and the seizure of her electronic devices, which free-press advocates have cited as part of a broader pattern of aggressive investigative steps involving reporters.
At Thursday's hearing, U.S. District Judge Arun Subramanian pressed federal prosecutors on why subpoenas were issued before taking what he described as necessary investigative steps and questioned whether sanctions should be considered over alleged perjury in an application to secure the subpoenas.
Sean Buckley, the chief counsel to the U.S. attorney for the Southern District of New York, told the court prosecutors would "unilaterally withdraw the subpoenas at this time" and acknowledged that the Department of Justice had served the subpoenas before carrying out some initial investigative steps required by the 2nd U.S. Circuit Court of Appeals; he said prosecutors would return to the judge if they decided to seek new subpoenas in the future.
Prosecutors also admitted to errors and "imprecise" wording that led the government to seek additional subpoenas even after the New York Times raised legal concerns, and Subramanian said that in a civil proceeding he would normally ask parties to show cause why sanctions should not issue for incorrect statements and misstatements.