What began as an effort from the Trump administration to investigate leaks to journalists has evolved in the Biden administration into an investigation that included a gag order preventing anyone who knew about the effort from speaking.
David McCraw, a lawyer for The New York Times, called the gag order an “unprecedented” step, The Times reported Friday.
The gag order, which was issued March 3, banned any discussion of the probe within The Times, including to its top editors and reporters.
The Justice Department sought email logs from Google, which operates the email system at the newspaper. Google would not disclose the information.
“Clearly, Google did the right thing, but it should never have come to this,” Executive Editor Dean Baquet said. “The Justice Department relentlessly pursued the identity of sources for coverage that was clearly in the public interest in the final 15 days of the Trump administration. And the Biden administration continued to pursue it. As I said before, it profoundly undermines press freedom.”
The Times reported that Justice Department prosecutors on Jan. 5 obtained a court order to turn over the records it sought.
At the time, the Justice Department said secrecy was necessary because “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.”
The Times further reported that, based on the reporters whose records were sought, the Justice Department appeared to be seeking information on the sourcing of an April 2017 article on former FBI Director James Comey and his actions surrounding the 2016 presidential campaign.
McCraw said The Times last week vowed to take the issue into open court. Days later, the gag order was lifted.
Fred Ryan, publisher of The Washington Post, blasted President Joe Biden’s Justice Department for the gag order in an opinion piece Sunday.
“This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing,” he wrote.
“There must be clear and enduring safeguards to ensure that this brazen infringement of the First Amendment rights of all Americans is never repeated,” Ryan said.
White House press secretary Jen Psaki issued a statement Saturday distancing the White House from the Justice Department’s gag order.
“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,” Psaki said.
“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.
Justice Department spokesman Anthony Coley said Saturday that a new policy is now in place.
“Going forward, consistent with the president’s direction, this Department of Justice — in a change to its longstanding 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, according to The Times.
“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,” he said.
Mary McCord, who formerly led the Justice Department’s national security division, said there are times when the approach now apparently banned might be necessary.
“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,” she said.
Patrick Toomey, a senior staff lawyer at the American Civil Liberties Union, slammed the Justice Department.
“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.”