The Justice Department under former President Donald Trump secretly obtained the call records for the phones of three Washington Post reporters last year in an effort to figure out who had talked to them. They also tried to obtain the email records for the three reporters: Ellen Nakashima, Greg Miller, and Adam Entous, who now works at The New Yorker. Federal investigators obtained the records for their work, home, and cellphone numbers from April 15 to July 31, 2017. The three reporters received letters informing them of the seizure that did not specify what the seizure was about. But the three reporters wrote a piece published July 21, 2017 about classified intelligence intercepts that indicated Russia’s ambassador to the United States had discussed the Trump campaign with Sen. Jeff Sessions.
The documents that were seized are known as toll records and include the numbers of all the calls made to and from the phone numbers over the time period and how long each call lasted. The three reporters were also told that prosecutors tried to get a court order for “non content communication records” for their work email accounts but they never got those records. Much like the phone records, those documents would have detailed everyone they emailed but not the content of the messages. It’s unclear why they never got the records but considering the emails in question were from several years earlier it’s possible the messages may have been manually or automatically deleted, notes Politico.
Cameron Barr, the Washington Post’s acting executive editor, said the paper was disturbed by the revelations. “We are deeply troubled by this use of government power to seek access to the communications of journalists,” Barr said in a statement. “The Department of Justice should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
The attorney general, who for most of 2020 was William Barr, has to approve these kinds of requests to get records from reporters as part of a leak investigation. The Justice Department defended the move, saying that it rarely seeks information from reporters and when it does it isn’t to target the journalists themselves but rather to figure out who gave them information. “While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients 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.”
Many were quick to condemn the seizure, including Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press, who said in a statement that the move “raises serious First Amendment concerns because it interferes with the free flow of information to the public.” The American Civil Liberties Union, meanwhile said that “the Justice Department shouldn’t go spying on journalists at the whims of an administration.” Some Democrats also criticized the move, including Rep. Ted Lieu from California who called it “a direct attack on the First Amendment by the Trump Justice Department.”
Despite the criticism, an effort to use all means necessary to locate leakers under the Trump administration wasn’t exactly new. During Barack Obama’s presidency, phone records had also been sought as part of leak investigations. For example, during Obama’s tenure prosecutors got phone records of reporters and editors at the Associated Press and a Fox News reporter. In 2013, then-Attorney General Eric Holder wrote up new guidelines “that significantly narrowed the circumstances under which journalists’ records could be obtained but did not preclude prosecutors from seeking phone records and emails for national security reasons,” reports the New York Times.