New details about the Trump Department of Justice’s secret pursuit of a CNN reporter’s email records emerged Wednesday as parts of the case were unsealed, lifting a gag order that had prohibited CNN general counsel David Vigilante from discussing the government’s prolonged legal efforts beyond a select group of people—network president Jeff Zucker, and other lawyers for CNN—for nearly a year. The Justice Department’s months-long court battle to obtain tens of thousands of CNN reporter Barbara Starr’s records from 2017 ultimately “resulted in the network agreeing to turn over a limited set of email logs,” CNN revealed, a resolution that came in January, just days after President Joe Biden took office. A month earlier, CNN’s lawyers successfully fought to narrow the scope of what the government was seeking, as a federal judge ruled that the DOJ’s request for access to Starr’s internal emails was “unanchored in any facts” and “not sufficiently connected to any evidence relevant, material, or useful to the governments ascribed investigation.” Starr’s phone records and data from her personal email account had been separately seized, she learned in May, a disclosure CNN said it had not been made aware of prior.
Recounting the protracted court battle on Wednesday, Vigilante wrote that DOJ lawyers “showed no interest in exploring good faith ways to narrow the order” or help CNN’s lawyers better grasp the scenario, as they were barred from knowing what specifically the government was searching for, who they were targeting, or the subject matter of the reporting in question—“in short, all the tools lawyers use every day to navigate these situations were refused to us.” Vigilante said he was “told in no uncertain terms (multiple times) that I was forbidden from communicating about any aspect of the order or these proceedings to the journalist whose interests I am duty-bound to protect” and “subject to charges of contempt and even criminal prosecution for obstruction of justice” if he violated the secret order, one he noted he, in his two decades at CNN, had never faced before.
CNN is one of three news organizations that only just learned of efforts under the Trump administration to secretly obtain the records of journalists in an attempt to identify their sources, and one of two that was subjected to a gag order as part of a leak investigation. In recent weeks, the New York Times—the other news outlet placed under a gag order—and the Washington Post were also notified by Merrick Garland’s Justice Department of the Trump-era practices. Post managing editor Cameron Barr said at the time the DOJ “should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs.” In all three cases, Trump’s DOJ, in 2020, sought records dating back to 2017.
The revelations have sparked First Amendment concerns and placed increasing pressure on President Joe Biden to commit to breaking with the practice aggressively deployed by his two most recent predecessors. Under President Barack Obama, the Justice Department prosecuted more leak cases than those brought under all previous administrations combined and took unprecedented steps to uncover reporters’ sources in such investigations, an approach embraced by President Donald Trump—whose DOJ’s sweeping assault on press freedom is only now, amid the recent record-seizure revelations, coming into focus.
Last Saturday, after the Times revealed that the newspaper’s executives had been put under a gag order during the Trump administration’s fight to obtain the emails of four Times reporters—a push that, like the gag order imposed on CNN’s lawyers, briefly continued under Biden—Garland’s Justice Department put out a statement announcing it would not “seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs,” breaking with a “longstanding practice” that, in a separate statement that day, White House press secretary Jen Psaki said “is not consistent with the President’s policy direction to the Department.” While the DOJ professed its commitment to “a free press, protecting First Amendment values,” and “taking all appropriate steps to ensure the independence of journalists,” the Associated Press noted that it was unclear whether the department would continue pursuing aggressive leak investigations without seizing reporters’ records or specify who, in policy terms, is categorized as a member of the news media or the parameters of the protection.
According to the Times, Garland said he would issue a memo detailing the new policy that he on Wednesday called “the most protective of journalists’ ability to do their jobs in history.” The attorney general has reportedly scheduled a meeting with leaders of the three affected news organizations for Monday. “We’re pleased that Attorney General Garland has agreed to this meeting,” Times publisher A.G. Sulzberger said in a statement to Vanity Fair. “We hope to use the meeting to learn more about how this seizure of records happened and to seek a commitment that the Department of Justice will no longer seize journalists' records during leak investigations."
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