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In Targeting Reporter, Justice Department Backs Trump’s Anti-Press Rhetoric

Posted June 10, 2018 8:17 p.m. EDT

Inside a wood-and-leather conference room at the Justice Department in Washington, a group of veteran journalists gathered on Wednesday to hear the deputy attorney general, Rod J. Rosenstein, review the government’s policies on obtaining information from reporters.

The guidelines created under President Barack Obama, Rosenstein said, remained in effect: barring certain circumstances, like an imminent threat to national security, reporters would be told in advance of any attempt to obtain their records.

The journalists left the meeting under the impression that no changes were imminent. But 24 hours later, it seemed as if all bets were off.

The revelation Thursday that the Justice Department had seized years of phone and email records from Ali Watkins, a New York Times journalist, raised concerns that the Trump administration was adopting a highly aggressive approach, continuing a crackdown that ramped up in the Obama years.

Under Obama’s attorney general, Eric H. Holder Jr., the Justice Department obtained private records from reporters at Fox News and The Associated Press. Eventually, facing criticism from the media, Holder strengthened rules meant to minimize the seizure of journalists’ data.

But journalists and lawyers said the department’s handling of Watkins’ case was a sign that those guardrails might be on their way out, under a president who relishes taunting the press.

“I don’t think people in this administration respect the press’ need to do its job at all,” said Matthew Miller, who served as director of public affairs for the Justice Department during the Obama presidency. “And they couldn’t care less about bad press coverage. So both of the checks on what is otherwise their unfettered ability to use the law to obtain journalist records are kind of gone right now.”

President Donald Trump has called journalists “the enemy of the American people,” threatened to suspend television broadcast licenses and mused about making it easier for people to sue for libel. Over the weekend, he labeled CNN “fake news” during an international summit in Canada, deriding a major American news organization on foreign soil.

Holder’s Justice Department pursued at least nine leak-related prosecutions, more than all previous administrations combined. The current attorney general, Jeff Sessions, said in August that the Justice Department would vastly expand that effort. He also promised to revisit rules that restrict investigators’ ability to obtain reporters’ records, saying the role of the press “is not unlimited.”

Until last week, though, Sessions’ rhetoric had seemed just that.

Prosecutors seized Watkins’ records as part of an investigation into whether a former Senate Intelligence Committee aide, James A. Wolfe, had given classified materials to reporters. Wolfe was arrested Thursday on charges of lying to investigators; he has denied leaking classified materials. Watkins and Wolfe were in a three-year relationship that ended last year, before she was hired by The Times.

The seizure of the reporter’s communications — data that stretched back to her undergraduate days, when she reported on the Senate Intelligence Committee as an intern — struck press rights groups as ominous. The advocates said the government’s actions seemed severe, given that the Justice Department has not charged anyone with leaking classified information in this case.

Watkins received a letter from the Justice Department in February informing her that it had seized records from two email accounts and a phone number of hers. Watkins, after consulting with her personal lawyer, did not tell her editors about the letter until late last week. It was sent about two months after FBI agents approached her about Wolfe; she said she did not answer their questions at the time.

Sarah Isgur Flores, a Justice Department spokeswoman, said Sunday that the department had “fully complied” with its internal guidelines in deciding to seize Watkins’ records. Three other reporters were also cited in Wolfe’s indictment; the Justice Department said their records were not subject to subpoenas.

The guidelines installed by Holder state that reporters must be informed ahead of time before the government obtains their records, giving them a chance to negotiate the scope of the request or to challenge it in court.

But there are exceptions: The guidelines say the Justice Department can secretly obtain records if prior notice could threaten an investigation, or if there could be “grave harm to national security” or “imminent risk of death or serious bodily harm.”

Even if the guidelines are not followed, journalists have little recourse beyond a public outcry. The Justice Department guidelines are the equivalent of an in-house ethics handbook: They do not carry the weight of law, and news organizations would be hard-pressed to make a legal case if they were violated.

At the Justice Department meeting Wednesday, which had been previously scheduled, Rosenstein did not mention the seizure of Watkins’ records. (Justice Department officials do not typically discuss ongoing investigations.) Rosenstein told the group that the department was continuing to contemplate changes to its rules on journalist subpoenas, according to a summary provided by Flores.

Media advocates said they were worried that law enforcement officials could start obtaining journalists’ records as a first step, rather than a last resort, exposing communications with any number of confidential sources. “Leak investigations are absolutely intended to have a chilling effect on leaks,” Miller said. “That’s a perfectly legitimate objective from the government’s point of view. You don’t want people to leak classified information.” Miller added that the electronic tools that are part and parcel of modern reporting, like emails, text messages and encrypted messaging apps, are more easily traceable than the methods used by investigative reporters like Bob Woodward in the 1970s.

“The Watergate leave-a-flower-pot-on-the-balcony, analog communication style to produce leaks is just not how the world works anymore,” Miller said.

Floyd Abrams, the famed First Amendment lawyer, said he was surprised that it had taken this long into Trump’s tenure for a reporter’s records to be seized. “I don’t think I’m alone in having expected more than this torrent of rhetorical attacks on the press,” he said in an interview.

Abrams, who argued the 1971 Pentagon Papers case for The Times, noted that President John Adams signed the Sedition Act of 1798, allowing for the prosecution of Americans who made political statements deemed malicious by the government. Editors were jailed under Abraham Lincoln, Joseph Pulitzer was indicted on a charge of libeling Theodore Roosevelt and Richard Nixon sued to stop publication of the Pentagon Papers.

“We’ve had other presidents who took action against the press,” Abrams said. “But we’ve never had a president who was more publicly engaged in the denigration on a daily basis of the press, in attacking its product and its good faith.”

He added, of the Watkins case: “One asks, one wonders, is this the first of much more to come?”