WASHINGTON – Gag ordered the U.S. Department of Justice impose on legal representatives two prominent news outlets fighting subpoena requests expressing concern about protecting the first amendment.
Broadcaster CNN reported this week that its top lawyer was subject to a gag order in 2020, when the Department of Justice under the then Attorney General William Barr searched the email records of a national security correspondent.
According to them, their lawyer said he was prevented from knowing what the investigation was about, what it was reporting on and talking to the reporter. so the broadcaster can reduce the impact on its coverage.
The New York Times was placed under a similar order in March this year, and at the same time some top executives were notified of an ongoing effort by the government to remove the email files of four reporters, the Times reported last week. The paper said even its executive editor was unaware of the legal battle – which began in the last few weeks of the Trump administration – until the gag order was lifted last week.
The outlets, together with The Washington Post, all reported in recent weeks on the Department of Justice’s efforts to seize journalists’ records as part of investigations into material leaks. The Times reported that the department searched the reporters’ email logs in an attempt to identify their sources.
Media experts and lawyers condemned the actions of the Department of Justice.
‘It’s hard to believe that in 2021 – to [a] time in which we have made so much progress in this country – that the news media is still plagued by attempts at infringement of basic press freedom by our own government, “said Lisa Matthews, president of the National Press Club, in an email to VOA .
Theodore Boutrous, a partner at Gibson, Dunn & Crutcher who represented The New York Times, told VOA the gag order was “unknown.”
“If there are leak investigations, everyone usually knows,” Boutrous said.
The lawyer, who has been honored for his work representing high-profile media cases, including defending CNN correspondent Jim Acosta, after his credentials were recalled in the White House, said the approach by the Justice Department “is very offensive”. for the first amendment. “
Gibson, Dunn & Crutcher represented USAGM executives in 2020 when they filed a complaint against Michael Pack, then CEO. USAGM is the parent company of VOA.
The Department of Justice declined to comment on VOA’s request for comment.
According to the guidelines of the Department of Justice, the Attorney General must report a subpoena to reporters and news reports must be seized as ‘extraordinary measures, not as standard investigative practices’.
The guidelines state that a journalist or outlet must be notified unless such notice would pose a clear and material threat to the integrity of the investigation, cause serious harm to national security, or pose a threatening risk. for death or serious bodily harm. ‘
In the cases disclosed in the past few weeks, none of the outlets have been notified of the subpoena requests, and two are subject to gag orders.
Although a settlement was reached in the CNN case in January, executives who knew of the months-long battle over tens of thousands of emails were only released from the gag order this week.
The news reports affected by the latest subpoena requests got the dates of the coveted records, but not the reporting under investigation.
In the Washington Post In the case, the newspaper reported last month that it had just learned that the Department of Justice had obtained telephone records from three national security reporters, covering a period from April to July 2017.
The Post quoted a spokesman for the justice department as saying the journalists were not the target of the investigation.
Boutros said that with The New York Times‘Everyone knew’ that the Department of Justice was investigating a leak investigation related to former FBI Director James Comey. According to an internal investigation, Comey leaked information to the media, but the justice department announced in 2019 that the former director would not be prosecuted.
CNN reports that Barr’s Department of Justice fought for the Pentagon correspondent Barbara Starr’s email records in July 2020, but that the organization’s general counsel could not discuss the matter with anyone.
The additional imposition of a gag order has caused experts concern, pointing out that it has prevented reporters from knowing for months that lawyers are fighting to protect their email.
‘The decision to follow gag orders is an extraordinary measure. The consequences are far-reaching and the practice is contrary to the transparency on which the federal court system is based, ”said Matthews of the National Press Club.
Some of the journalists involved made their comments on social media.
“Federal judge says that the pursuit of my records and CNN ‘is not based on facts’ and that I was not even allowed to be aware of it due to the gag order,” Starr wrote on Twitter on Wednesday. “#FirstAmendement today, tomorrow and always,” she added.
Federal judge says that the pursuit of my records and CNN “is not based on facts” and that I was not allowed to even be aware due to the order of the mouth. # First Amendment today, tomorrow and always. https://t.co/6yLTc4925R
– Barbara Starr (@barbarastarrcnn) 9 June 2021
Starr’s colleagues at CNN expressed similar sentiments.
“The words ‘gag order’ do not belong in the same sense as ‘news organization’,” Brian Stelter, the network’s chief media correspondent, wrote on Twitter.
The words ‘gag order’ do not belong in the same sense as ‘news organization’. pic.twitter.com/m7KFrM7YFf
– Brian Stelter (@brianstelter) 9 June 2021
Mathews said the actions of the Department of Justice were detrimental to journalism.
‘It hurts source relations for reporters, not to mention our democracy. The recent revelations that the Department of Justice has sought and obtained secret court orders to e-mail and telephone records of reporters at CNN and The New York Times, based solely on the representations of the government, is worrying and undermines the foundation of openness within the legal system. ”
The Biden administration said it would ban the Department of Justice from using reporters’ records in an attempt to identify their sources – a clear change from previous governments of both parties.
Media rights groups say prosecutions against leaks have increased under the Obama presidency, a trend that has continued under the Trump administration.
While many welcomed Biden’s claim that this practice would stop in his administration, advocates for freedom of speech called for more concrete measures.
The Freedom of Press Foundation argued that the increasing persecution by recent governments was ‘investigative reporting’, and warned ‘the devil is in the details, of course.’
“The Department of Justice must now write down this categorical supervision of journalists in its official ‘media guidelines’, and Congress must also immediately rewrite the rules in the law to ensure that no administration can abuse its power again,” the foundation’s executive director, Trevor Timm, said. said in a June statement. The non-profit organization defends journalism of public interest.
“If they follow suit, this commendable and extremely important decision by the Biden government could stem the tide of more than ten years of erosion of press freedom,” Timm added.