The Justice Department under President Donald Trump obtained a gag order that kept top CNN executives from disclosing the government’s pursuit of reporter Barbara Starr email and other records as part of an apparent leak investigation.
According to CNN, the effort started in July of last year and was only revealed until Wednesday, when a federal judge unsealed parts of the case. CNN’s general counsel David Vigilante went on air to explain that he was unable to reveal details of the case even to Starr herself. She and reporters from The Washington Post and The New York Times were informed last month that the government had seized their records without their knowledge.
Vigilante described a protracted legal battle that ultimately resulted in the DOJ agreeing to a much narrower disclosure of records, after the tens of thousands originally sought over a span of two months in 2017.
It’s still not clear why the government was seeking the records, but the DOJ said last month that Starr was not a target of an investigation. During the time frame that the government sought the records, Starr, their Pentagon correspondent, had reported on North Korea, Syria and Afghanistan.
“We were completely deprived of our right to defend ourselves,” Vigilante said on CNN on Wednesday.
There has been concern that the Biden Justice Department continued to pursue the cases rather than immediately suspend the pursuit of reporters’ records. After Starr received her letter, CNN’s chief White House correspondent Kaitlan Collins asked Biden about it, and he said that the practice was “simply, simply wrong.” The White House and the Justice Department announced over the weekend that they would end the practice of subpoenaing journalists’ phone and email records as they conducted leak investigations.
Vigilante said that representatives from the network, as well as the Times and Post, would meet on Monday with Attorney General Merrick Garland.
While it is not uncommon for media organizations to receive subpoenas for information in court cases, what was particularly unusual about this instance was the ability of the DOJ to obtain a secrecy order. That kept the circle of people at the network who knew about what was going on to Vigilante and other attorneys for the network, while CNN President Jeff Zucker was given limited details, the network reported.
“For a news organization it is incredibly unusual,” Vigilante said. “It has never happened to us before.”
On Friday, The New York Times reported that while the Trump administration never informed the Times about its pursuit of records from four reporters, the Biden administration did, but they imposed a gag order to prevent that paper’s top lawyer, David McCraw, from disclosing it to all but a small group of top executives.
In The Washington Post this week, publisher Fred Ryan wrote that “Trump’s actions, and the expansion upon them during the Biden administration, pose a grave threat to our ability as a nation to keep powerful officials in check. With the revelation that the Justice Department has secretly obtained phone and email records at multiple news organizations to sniff out the identities of journalists’ sources, government employees who would otherwise come forward to reveal malfeasance are more likely to fear exposure and retaliation, and therefore to stay silent.”
Ryan called for “clear and enduring safeguards to ensure that this brazen infringement of the First Amendment rights of all Americans is never repeated.”
Vigilante also called for “some rules around this” to make sure that it doesn’t happen again. He still isn’t sure of just what the government was seeking. “Candidly, to this day, I don’t know because it was such an opaque process,” he said.
At a hearing on Capitol Hill on Wednesday, Garland said that “the president has made very clear his view of the First Amendment and it coincides with mine. It is vital to the functioning of our democracy. That extends to the need for journalists to go about their work disclosing wrongdoing and error in the government. That is part of how you have faith in the government, by having that transparency.”
He said that “these were decisions made under a set of policies that … have existed for decades, that continuously with each new administration racheted up greater protections. But going forward, we have adopted a policy which is the most protective of journalists’ ability to do their jobs in history…We will not use compulsory process in leak investigations to require reporters to provide information about their sources when they are doing their job as reporters.”
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