The Trump Justice Department secretly seized the phone records of four New York Times reporters spanning nearly four months in 2017 as part of a leak investigation, the Biden administration disclosed today.
It was the latest in a series of revelations about the Trump administration secretly obtaining reporters' communications records in an effort to uncover their sources. Last month, the Biden Justice Department disclosed Trump-era seizures of the phone logs of reporters who work for The Washington Post and the phone and email logs for a CNN reporter.
Dean Baquet, the executive editor of The Times, condemned the action by the Trump administration.
"Seizing the phone records of journalists profoundly undermines press freedom," he said in a statement. "It threatens to silence the sources we depend on to provide the public with essential information about what the government is doing."
Last month, after the disclosures about the seizures of communications records involving Post and CNN reporters, US President Joe Biden said he would not allow the department to take such a step during his administration, calling it "simply, simply wrong".
Referring to that declaration, Baquet added: "President Biden has said this sort of interference with a free press will not be tolerated in his administration. We expect the Department of Justice to explain why this action was taken and what steps are being taken to make certain it does not happen again in the future."
Anthony Coley, a Justice Department spokesperson, said that law enforcement officials obtained the records in 2020, and added that "members of the news media have now been notified in every instance" of leak investigations from the 2019-2020 period in which their records were sought.
The department informed The Times that law enforcement officials had seized phone records from January 14 to April 30, 2017, for four Times reporters: Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt. The government also secured a court order to seize logs — but not contents — of their emails, it said, but "no records were obtained".
The Justice Department did not say which article was being investigated. But the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James Comey, then the FBI director, handled politically charged investigations during the 2016 presidential election.
Discussing Comey's unorthodox decision to announce in July 2016 that the FBI was recommending against charging Hillary Clinton in relation to her use of a private email server to conduct government business while secretary of state, the April 2017 article mentioned a document obtained from Russia by hackers working for Dutch intelligence officials. The document, whose existence was classified, was said to have played a key role in Comey's thinking about the Clinton case.
The document has been described as a memo or email written by a Democratic operative who expressed confidence that the attorney general at the time, Loretta Lynch, would keep the Clinton investigation from going too far. Russian hackers had obtained the document, but it is apparently not among those that Russia sent to WikiLeaks, intelligence officials concluded.
Comey was said to be worried that if Lynch were to be the one who announced a decision not to charge Clinton, and Russia then made the document public, it would be used to raise doubts about the independence of the investigation and the legitimacy of the outcome.
The Times reported in January 2020 that Trump-era investigators had pursued a leak investigation into whether Comey had been the source of the unauthorised disclosure in that 2017 article.
Comey had been under scrutiny since 2017, after Trump fired him as the director of the FBI. After his dismissal, Comey engineered — through his friend Daniel Richman, a Columbia University law professor — the disclosure to The Times of accounts of several of his conversations with the president related to the Russia investigation.
The inquiry into Comey, according to three people briefed on that investigation, was eventually code-named Arctic Haze. Its focus was said to evolve over time, as investigators shifted from scrutinising whether they could charge Comey with a crime for disclosing his conversations with Trump, to whether he had anything to do with the disclosure of the existence of the document.
As part of that effort, the FBI is also said to have subpoenaed Google in 2020, seeking information relevant to any emails between Richman and The Times.
But by November 2020, some prosecutors felt that the FBI had not found evidence that could support any charges against Comey, and they discussed whether the investigation should be closed.
At the beginning of this year, prosecutors were informed that the FBI was not willing to close the case — in part because agents still wanted to interview Comey, according to a person familiar with the FBI's inquiry. Interviewing the subject of an investigation is typically considered a final step before closing a matter or bringing charges.
Last month, the FBI asked Comey's lawyer whether he would be willing to sit down for an interview, a request that Comey declined, according to a person familiar with the case.
Starting midway through the George W. Bush administration, and extending through the Barack Obama and Donald Trump administrations, the Justice Department became more aggressive about pursuing criminal leak investigations.
Lichtblau — who is no longer with The Times — came under scrutiny early in that period because he co-wrote a 2005 Times article disclosing the warrantless surveillance programme that Bush had secretly authorised after the September 11, 2001, attacks. The Bush administration convened a special task force to hunt for the sources of that article, and its new approach spilled over into unrelated cases during the Obama administration.
In 2013, Apuzzo and Goldman — who were then working for The Associated Press and had broken news about a bomb plot by an Qaeda affiliate in Yemen — were notified that the Obama-era department had secretly subpoenaed two months of their phone records, along with those of other reporters and editors at the AP.
That same month, it also emerged that in a leak investigation about a Fox News article involving North Korea's nuclear programme, the Obama Justice Department had used a search warrant to obtain a Fox News reporter's emails — and characterised the reporter as a criminal conspirator.
The disclosures prompted a bipartisan uproar, and Obama instructed the attorney general at the time, Eric Holder, to review rules for criminal investigations that affect the news media.
Holder tightened them, including strengthening a preference for notifying a news organisation in advance about a planned subpoena so it could negotiate or fight in court over its scope. After the changes, the rate of new leak cases dropped significantly during Obama's second term.
But under Trump, who liked to attack the news media as the "enemy of the people," the practice resurged.
In August 2017, Attorney General Jeff Sessions said that the number of leak inquiries had tripled. And under his successor, Attorney General William Barr, it is now clear, the department further escalated its aggressive approach to leak investigations.
Written by: Charlie Savage and Katie Benner
Photograph by: Jeenah Moon
© 2021 THE NEW YORK TIMES