Trump’s DOJ Is Now Targeting the New York Times for Basic Reporting

President Donald Trump is angry with the New York Times again and has deployed his usual tactics, weaponizing his position of power to take the newspaper to court. Four reporters for the outlet wrote a story detailing how the jet donated to Trump by Qatar last year was abandoned during his recent trip to Turkey because, according to anonymous sources within the government who spoke to the Times, the plane did not yet have the necessary security features that the original Air Force One did. This forced the president to switch planes as he returned home to Washington. The fact that the Times reported on it apparently enraged Trump, who has praised the gift for being “considered the world’s most luxurious plane.” One day after the Times published the piece, federal agents were at the reporters’ homes, hand-delivering grand jury subpoenas.

This is now the third time the Trump administration has attempted to subpoena journalists, following its targeting of the Washington Post and the Wall Street Journal. Both of those outlets pushed back with their own legal actions, and the Justice Department subsequently withdrew its subpoenas. It’s not yet clear whether the Times will challenge the subpoenas, which seek to force the four journalists to testify before a grand jury in Manhattan this week. Spokespeople for the DOJ have claimed that the subpoenas are an effort to “make sure that the people entrusted with our nation’s secrets do what they’re supposed to do with that information,” adding, “Reporters are not the targets, those leaking classified information are.”

The Times story in question makes reference to “multiple officials who have been briefed on how the jet was retrofitted” but “who spoke on the condition of anonymity to describe its security features.” Journalists often use anonymous sources in order to report on sensitive information, as well as to protect the identities of sources, who often risk their jobs and safety to share critical information with the world. And the Constitution shields this work under the First Amendment, which declares that Congress shall make no law that abridges the freedom of speech or of the press. The Trump administration, though, has been one of the most aggressive and antagonistic in U.S. history against journalists who report things it does not like.

Trump caught immense flak for accepting the Qatar-donated plane, which looked, according to experts, like the “definition of corruption.” That aircraft, further, is costing taxpayers hundreds of millions of dollars to retrofit with necessary security defenses, and now it seems it’s not even usable. Instead of owning up to this, as the vessel was expected to require two years’ worth of work to be ready to transport a U.S. president, the administration has resorted to lashing out at the press and weaponizing the DOJ and FBI to compel anonymous sources to identify themselves for causing the president reputational harm. On Wednesday, things seemed to escalate, with White House chief of staff Susie Wiles getting involved, working with FBI Director Kash Patel to demand that officials hand over their phones to investigators.

In order to understand what rights the Times reporters have in this case, and the legal strategy the administration is likely to use, I spoke with Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press and a practicing attorney focused on the intersection of press freedom, newsgathering, and technology. He’s also an Espionage Act expert, deeply familiar with its implications for journalists who use anonymous sources.

Here’s our conversation, which has been edited and condensed for clarity.

Shirin Ali: How seriously do you view these subpoenas and the way the White House seems to be going after the New York Times?

Gabe Rottman: It’s extremely aggressive, and these types of investigative steps are very rare. We’re talking about national security, what are pejoratively called leak cases, and dealing with, presumably, government sources disclosing government secrets in the public interest to reporters. Historically, those cases were not treated as crimes. It was rare for the Justice Department to prosecute journalistic sources under the Espionage Act, but that started to change after 9/11. It really started to ramp up under the Obama administration, which famously brought more Espionage Act leak prosecutions than all of the previous presidencies combined.

Then the first Trump administration took up that mantle and brought almost as many in four years. There was a lull under President Joe Biden, but now there’s clearly been a ramping up in leak enforcement at the DOJ. And we’re talking about grand jury testimonial subpoenas, which are serious intrusions and potentially more so than even subpoenas for records, which are themselves very intrusive into the newsgathering process. When you’re talking about a grand jury testimonial subpoena, once the journalist is up there, prosecutors can ask very probing questions that go beyond even the underlying investigation. They can be used as tools to identify confidential sources, for instance, well beyond the source of the underlying investigation.

In the past 25 years or so, there have been only three cases involving grand jury testimonial subpoenas that I’m aware of. Of those three cases, in only one of them, the Judith Miller case, did the reporter serve jail time. In the past two months, we’ve learned that reporters at the Times, the Washington Post, and the Wall Street Journal have all received testimonial grand jury subpoenas. The subpoenas that were directed at the Post and the Journal were withdrawn after the outlets challenged them, but you’re talking about three cases involving these types of subpoenas in the past 25 years, and now three cases in the past two months.

The administration has said it’s technically going after not the Times reporters but “those leaking classified information.” What protections, if any, do the anonymous sources in this case have?

The Espionage Act in particular is quite powerful medicine, and it’s very broad. For government sources, especially in the national security space, the very act of talking to a member of the news media and disclosing what’s called national defense information is itself a crime. For aggressive leak investigations, especially those that target journalists, which is what’s happening here, that sends a pretty clear signal to many government sources that it may not be worth the candle, even if the information they have is clearly in the public interest, to talk to the press. It creates this chilling effect.

Virtually every state, either by statute or through the courts, recognizes, in some form, what’s called a reporter’s privilege. This provides differing levels of protection for journalists from having to disclose, for instance, confidential source identities or other newsgathering information in legal proceedings. There is no similar federal law, which is a problem and one that advocates have been trying to fix for decades now. There’s also the U.S. Supreme Court, which, in a case from the early 1970s, Branzburg v. Hayes, held that there is no general reporter’s privilege with respect to criminal grand jury subpoenas, which is what we’re talking about here. However, the majority opinion in Branzburg pretty clearly held that subpoenas that are issued in bad faith or to harass journalists—in other words, subpoenas that seek confidential source identities without the legitimate interest of law enforcement—are improper and can be quashed under typical federal criminal rules.

In addition, Justice Lewis Powell wrote a concurrence, which was necessary because the case was 5–4, that said, Look, newsgathering isn’t without protection, and courts can engage in case-by-case balancing of the First Amendment interests on the one hand and prosecutorial interests on the other. Some courts, including in the 2^nd Circuit, have taken up that invitation, and so the 2^nd Circuit does recognize the reporter’s privilege.

How it applies in this specific context is unclear. What’s happening with the Times, where the actual underlying subject of the story is well known publicly through concessions by the government itself, that the Qatari jet didn’t have all the capabilities of the older Air Force One jets, that is public knowledge. Whether there were additional details in the Times story, this is one of those cases where the public interest is palpable.

Do you think the administration has a compelling case of national security to make here?

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One of the fundamental problems with national-security leak cases and treating them as criminal matters is that, by their nature, the government is investigating news reporting and often news reporting that could be perceived as critical to the government itself. That creates a significant incentive for the government to use, for instance, the Espionage Act or similar statutes to try to suppress news reporting that is merely embarrassing or revelatory of waste, fraud, or abuse. This is one of the reasons why the EA is particularly powerful medicine in national-security leak cases—which is one of the reasons advocates and the public should be rightfully concerned that the investigation is being pursued not for true national security reasons but rather because the underlying reporting was embarrassing to the government.

If the Times reporters are forced into complying with their subpoenas, how much will they be required to divulge about their sources and reporting?

Part of the problem is that this is like any cross-examination, where you are up there, in front of the prosecutor, alone. It’s a vulnerable position. You can’t control where the questioning goes, and that’s why this is particularly sensitive. You can negotiate with the government over the scope of the questioning, which has happened in prior press cases. James Risen was subject to a grand jury testimonial subpoena in the Jeffrey Sterling leak case back in 2015, and it was a multiyear fight over the subpoena. Ultimately, the 4^th Circuit applied Branzburg and said there was no general reporter’s privilege with respect to criminal grand jury subpoenas in the national security context. Though the courts ruled against Risen, there were negotiations over the scope of his testimony. You can do that, but the bottom line is that once you’re up there on the stand, you can’t control where the questioning goes. And if you refuse to comply, you could be held in contempt and face fines or jail. It’s a sensitive position to put reporters in.

Does the administration’s targeting of the Times over this story feel any different to you from, say, its attempts to go after the Post and the Journal?

I think this is in the same vein. It’s part of a pattern that tends to be kind of cyclical, where you’ll have aggressive leak enforcement, it’ll lead to public outcry, and things will go quiet for a bit. There’ll be reforms, then it ramps up again. We had a similar dynamic happen under the Reagan administration and the Nixon administration, with the plumbers, called that because they were tasked with plugging leaks. The Obama administration also ramped up leak enforcement, and I think that that’s what’s happening right now. We’re in a period of ramped-up enforcement, and the government has said as much. They announced recently that the Pentagon and the DOJ have set up a task force to identify and stop unauthorized disclosures.

The difference right now is that, even in those past periods of ramped-up leak enforcement, the use of investigative tools like subpoenas, court orders, or search warrants that were directed at journalists was, and still is, rare. Normally, the government tries to identify the leaker by investigating internally, by turning its focus into its own house—whereas here, you’ve got moves to subpoena the press and use these investigative tools directly at the press. That’s unusual. The department needs to pursue the information from nonmedia sources first. In other words, using a subpoena against a journalist should be a last resort, not a first resort.

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Elsewhere in Jurisprudence

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• Friend of Slate Steven Lubet, Williams Memorial Professor Emeritus at Northwestern University School of Law, explains Justice Brett Kavanaugh’s quirky opinion in birthright citizenship case Trump v. Barbara. He argues that the Trump-appointed judge applied an “exceptionally loose test for exclusions to birthright citizenship,” a frame that conveniently supports exceptions that the administration initially sought.

• On Wednesday, Blanche faced the Senate Judiciary Committee as he sought the nomination of attorney general. His record, however, “is not especially impressive,” argue Kristy Parker and Grant Tudor of Protect Democracy. Blanche represents an authoritarian government, which is fundamentally unstable, particularly if you take a closer look at the indictment of former FBI Director James Comey at Trump’s behest. 

Thank you for reading Executive Dysfunction! We’re thrilled to be in your feeds and will be back with more dysfunction analysis next week.

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