Donald Trump’s Justice Department secretly obtained the phone records for three Washington Post journalists who in 2017 were reporting on Russia’s role in the presidential election, a move the paper said it only just became aware of last week and that has since sent shock waves through the newsgathering community. “Holy and I do not say this lightly shit,” Columbia journalism professor Bill Grueskin tweeted following the Post’s revelation. The records’ seizure was done in an attempt to determine who the reporters’ sources were, part of a leak investigation into the publication of classified information that in 2020 led the Department to seek a court order for the Post reporters’ work, home, and cellphone numbers covering a monthslong period more than three years earlier.
The decision to seize the records, which would have required then-Attorney General William Barr’s approval, appears to be related to an article the Post published toward the end of the time period covered by the search. The story pertained to discussions Jeff Sessions had with Sergey Kislyak, Russia’s ambassador to the United States, about the Trump campaign during the 2016 presidential race. Sessions was a GOP senator and Trump foreign policy adviser when the reported conversation with Kislyak occurred; by the time the Post’s article published, he had gone on to become Trump’s attorney general. It was just a month after that article when Sessions declared “this culture of leaking must stop” and announced a heightened effort to prosecute government officials who disclosed such information to the news media.
In letters sent to the three journalists—the Post’s Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous—the current Justice Department said Trump’s DOJ had also sought the reporters’ email records, but did not obtain them. “We are deeply troubled by this use of government power to seek access to the communications of journalists,” Cameron Barr, the Post’s acting executive editor, said, calling on the Department to “immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
In a statement, the DOJ said that the reporters’ records were secretly swept up under Trump in an attempt to target not the journalists “but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required,” and that the move, “while rare,” was done in accordance with the Department’s “media guidelines policy when seeking legal process to obtain” such records as part of a leak investigation. But those guidelines “require, with only narrow exceptions, notification to an affected news organization before federal prosecutors can seize a journalist’s toll records,” Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement. Given the Post was only just notified of the seizure, Brown called on the new DOJ to explain “on what basis the Justice Department decided to forgo the presumption of advance notification under its own guidelines when the investigation apparently involves reporting over three years in the past.”
The Press Freedom Defense Fund is also demanding further investigation into the seizure, which its director, James Risen, categorized as “not the actions of a democratic government” but rather “abuses of power” that “shake some of the central pillars of our Constitution” and must be held accountable. The incentive to prosecute leaks “remains as strong now as ever” under President Joe Biden and his cabinet, said Risen, who, as a reporter, was targeted by the Bush and Obama administrations. He called for “new protections” to ensure that journalists won’t be targeted and on the current administration to “clearly commit themselves” to providing more transparency about such tactics. Brown, too, highlighted the threat that the incident poses to First Amendment protections “because it interferes with the free flow of information to the public.”
Press freedom advocates were similarly concerned about this DOJ practice during the Obama administration when it was revealed in 2013 that federal investigators secretly seized the phone records of Associated Press reporters and editors. The New York Times notes that that attempt to root out national security sources—records for more than 20 telephone lines of AP offices and journalists, which the news organization said were seized without notice—was among several controversial moves taken under President Barack Obama in what became seen as a war on leaks. The number of leak cases prosecuted by his administration exceeded those brought under all previous administrations combined, an aggression that the Trump administration—one outspoken about its disdain for the news media—continued to pursue.
“This is not surprising. Why? Because it happened to me during the Obama administration,” tweeted Adam Goldman, one of the AP reporters targeted in 2013 and who now covers national security for the Times. ”If you’re gonna report in this space there is a chance federal prosecutors could subpoena your phone and email records,” he wrote, adding, ”So what happened to the @washingtonpost reporters is an excellent reminder to protect your sources.”
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