WASHINGTON — The Biden administration said Saturday that no one at the White House had been aware that the Justice Department was seeking to seize the email data of four New York Times reporters and had obtained a gag order in March barring a handful of newspaper executives who knew about the fight from discussing it.
The disavowal came one day after a court lifted the gag order, which permitted a Times lawyer to disclose the department’s effort to obtain email logs from Google, which operates the Times’ email system. The effort began in the last days of the Trump administration and continued until Wednesday, when the Biden Justice Department asked a judge to quash the matter without having obtained the data about who had been in contact with the reporters.
“As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night,” White House press secretary Jen Psaki said in a statement.
The administration also announced that the Justice Department was formally changing its leak investigation policy to ban seizures of reporters’ phone and email records in an effort to uncover their sources.
President Joe Biden declared last month that he would not let prosecutors go after reporters’ communications data, after disclosures that the Trump Justice Department had secretly seized phone data of Washington Post reporters and phone and email data of a CNN reporter.
“It’s simply, simply wrong,” Biden said. “I will not let that happen.”
But Biden’s comment — which came before the Justice Department notified the same four Times reporters this week that it had secretly seized their phone records in 2020 — was seemingly off the cuff, and contradicted existing department regulations that dated back to the Obama administration.
Those regulations permitted going after such data in leak investigations so long as there was high-level approval for the tactic. The Justice Department had refused to comment on whether it was formally changing its policy in light of Biden’s remarks, but on Saturday, Anthony Coley, a department spokesperson, said that it had done so.
“Going forward, consistent with the president’s direction, this Department of Justice — in a change to its long-standing practice — will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs,” Coley said in a statement.
He added, “The department strongly values a free press, protecting First Amendment values and is committed to taking all appropriate steps to ensure the independence of journalists.”
Psaki also emphasized the change in policy.
“While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the president’s policy direction to the department, and the Department of Justice has reconfirmed it will not be used moving forward,” she said.
Biden’s seemingly unequivocal vow never to let the Justice Department go after reporters’ records in leak investigations has made some veteran national security officials, including from Democratic administrations, uncomfortable.
Mary McCord, who led the Justice Department’s national security division late in the Obama administration and into the first part of the Trump administration, argued that there should be flexibility to do so under certain circumstances, if all other methods of gathering information have been exhausted.
“If there is a risk that a person could leak something again that would cause troops to be ambushed, people to die, a ship to be attacked, I would not hesitate to use that authority if that’s the only avenue left to potentially stop a person from disclosing that level of information,” McCord said.
Still, the Justice Department’s statement that it will no longer permit seeking source information from reporters who are “doing their jobs” may have left some wiggle room, depending on how prosecutors define what counts as legitimate newsgathering activity.
The Justice Department has not responded to questions about who inside the department knew about the fight with Google and the gag order imposed on Times executives — and when.
Prosecutors in the office of the U.S. attorney for the District of Columbia obtained the secret court order for Google Jan. 5 when the Trump administration still controlled the department. It required the company to turn over data about four reporters’ emails showing whom they had been in contact with, and not to tell The Times.
Under the existing regulations for leak investigations, the prosecutors should have sought high-level approval, including from the acting attorney general at the time, Jeffrey Rosen, and the acting head of public affairs at the time, Marc Raimondi. Those regulations also put a strong preference on notifying news organizations ahead of time, to enable negotiations over the scope of the data sought and a court fight if necessary.
Raimondi declined to comment Saturday on whether he had been notified ahead of time about any request to seek the reporters’ data..
But Theodore J. Boutrous Jr., an outside lawyer for The Times, said that in a meeting on April 6, Gregg Maisel, head of the national security division in the U.S. Attorney’s Office in Washington, told The Times’ legal team that prosecutors had obtained approval for the order, which he described as reasonable, and that Biden officials had been apprised of the matter.
“When we said that we felt this decision was not consistent with the guidelines, the prosecutors bristled at that,” Boutrous said.
That meeting occurred about three weeks after Attorney General Merrick Garland took office and about two months before the Justice Department asked a judge to quash the order to Google.
Coley has noted that “on multiple occasions in recent months,” the Biden-era department had moved to delay enforcement of the order and it then “voluntarily moved to withdraw the order before any records were produced.”
Midway through the Obama administration, Attorney General Eric Holder drafted the leak inquiry regulations after an uproar over revelations in May 2013 about the seizures of communications records of reporters in two leak investigations. The rules — which the Trump administration left in place — tightened limits on such inquiries.
Efforts to seize reporters’ records are “extraordinary measures, not standard investigatory practices,” the regulations state, permitting prosecutors to pursue such steps with the highest-level of approval, when all other means have been exhausted, and after pursuing negotiations with the affected reporter or news organization.
The regulations make an exception to that requirement of advance notification only if “the attorney general determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security or present an imminent risk of death or serious bodily harm.”
The Justice Department apparently told the magistrate judge that imposing a gag order on Google was justified, because — as the judge wrote — “there is reason to believe that notification of the existence of this order will seriously jeopardize the ongoing investigation, including by giving targets an opportunity to destroy or tamper with evidence.”
It is not clear how prosecutors made that case, since the existence of the leak investigation and its subject matter — which appeared to focus on former FBI Director James Comey and a document Russian hackers had stolen — was already public knowledge; The Times had reported on it almost a year earlier. On Saturday, David McCraw, a top lawyer for The Times, said the newspaper would petition the judge to unseal the filings that prosecutors made laying out arguments in support of the secret order.
During the transition to the Biden administration, at least one official wrote in a memo for the incoming Biden team that the Comey leak investigation that gave rise to the attempt to seize the reporters’ email records should be closed, according to a person familiar with the matter.
After Biden took office, the administration placed acting officials in key positions in the department while it waited for the president’s nominees to be confirmed by the Senate. Monty Wilkinson, a career official, became the acting attorney general.
Wilkinson was still in that role March 3, when a career prosecutor handling the matter, Tejpal Chawla, agreed to Google’s demand that someone at The Times be informed, in accordance with a contract the companies agreed to when Google took over The Times’ email system.
Chawla asked the judge to modify the Jan. 5 order so that McCraw could be apprised of the fight, while also preventing him from telling anyone else. The department eventually permitted the company’s general counsel and outside lawyers like Boutrous to be notified, along with two senior executives: A.G. Sulzberger, the publisher, and Meredith Kopit Levien, the CEO.
But the department insisted that imposing a gag order on them as well was justified, so no one was permitted to tell the public or anyone in the Times newsroom, including its executive editor, Dean Baquet.
The dispute ended Wednesday, when the department told McCraw that it was asking a judge to quash the order to Google without having obtained the reporters’ data.
On Saturday, civil liberties and press freedom advocates condemned the sequence of events. Patrick Toomey, a senior staff lawyer at the American Civil Liberties Union, called the Justice Department’s actions “a disgrace.”
“Google did the right thing by resisting the request and fighting to inform The New York Times of the government’s demands for this sensitive information,” he said. “The Biden administration needs to rein in the Justice Department and work with Congress to protect journalists and a free press.”
This article originally appeared in The New York Times.