Trump's DOJ Was Wrong to Seize My Phone Records
By Eric Lichtblau, The Intercept
10 June 21
These are precarious times for journalists and their sources, as the seizure
of my call records shows.
I was sitting at an awards ceremony at my son's high school last week when
I saw an email pop up on my cellphone with an ominous subject line: "The
Government Obtained Your Phone Records." It was from a lawyer at the New
York Times, where I'd been a reporter for 15 years in the Washington bureau.
Minutes later, a Justice Department official emailed me, following up
afterward with formal notification that prosecutors had secretly seized my
cellphone records stretching across three-and-a-half months in early 2017.
President Donald Trump has been gone from the White House for nearly five
months, but, as I learned, he is still managing to continue his assault on
the "enemy of the people," better known as the free press.
Learning long after the fact that the Trump administration had been
rummaging around in my phone records was disquieting, a confirmation of the
precarious times for journalists in Washington these days. It's a badge of
honor, I suppose, but it's not one I ever wanted to wear, considering the
risk it represents for reporters and their sources. The secrecy was the
thing I found most unsettling; I'd been involved in run-ins with the
government before over sensitive stories, but never like this - with
everything done so surreptitiously, without the chance to know what was
seized, much less fight it in court. More than anything, the episode reveals
just how far the Trump administration was willing to go in its relentless,
four-year assault on the free press, using both public and covert means of
attack.
Under then-Attorney General William Barr, who often acted as Trump's
personal fixer, the Justice Department in 2020 secretly went back more than
three years to subpoena the phone records for myself and three other
reporters at the Times as part of a leak investigation. The Justice
Department was apparently focused on an 8,000-word story we did on the FBI's
outsize role in the 2016 election, including its dual investigations into
Hillary Clinton's emails and the Trump campaign's possible ties to Russia.
It doesn't look like the leak investigation led anywhere, but the seizure of
the records creates an inevitable chilling effect for reporters and skittish
sources trying to discuss stories of national public interest.
We also learned that the Justice Department at the tail end of the Trump
administration had tried, unsuccessfully, to gather our email records from
Google and had obtained a gag order that kept the efforts secret for months.
Even more troubling, Justice Department lawyers in the Biden administration
continued waging that fight after Trump was gone. Those revelations followed
the news weeks earlier that the Justice Department under Trump had secretly
seized phone records from reporters at the Washington Post and CNN.
Under both Presidents Barack Obama and George W. Bush, national security
reporters in Washington were already on their heels after a series of
aggressive steps against reporters. Under Bush, officials at the Justice
Department took away my press pass for a time because they didn't like some
of the stories I wrote, and in 2008 they threatened to subpoena me to
disclose my sources for other stories I wrote at the Times with James Risen
that disclosed a secret NSA wiretapping program.
The Justice Department ultimately backed down on the subpoena threat, but
only after several fraught months of uncertainty over whether I might have
to make the decision to go to jail rather than reveal confidential sources.
A few years earlier, another Times reporter had gone to jail for 85 days for
refusing to reveal confidential sources regarding CIA operative Valerie
Plame. I remember spending endless hours going over the minutiae of my case
with the newspaper's lawyers and trying to predict if prosecutors would
blink first. Fortunately, they did.
Under Obama, the number of leak investigations rose, a trend that surprised
many reporters because Obama had seemed more congenial to the press than
Bush. The Justice Department had seized records from more than 20 phone
lines at the Associated Press over a story on an Al Qaeda bomb plot, and it
sought to compel Risen, with a threat of possible jail time, to disclose his
sources for a CIA-related story. Risen, who is now a senior national
security correspondent at The Intercept, stared down the DOJ.
But under Trump, the assault on the press escalated to another level - with
a raw, belligerent tone unseen before. Trump himself frequently declared the
press "the enemy of the people," attacked one accurate story after another
as "fake news," and publicly mocked and badgered reporters asking him
legitimate questions at his press conferences. The White House took away one
journalist's press credentials, and in just the first eight months of the
administration, the number of leak investigations nearly tripled.
I was on the receiving end of Trump's offensive even before the seizure of
my phone records. In June 2017, after I had left the New York Times to
become the Washington investigative editor at CNN, top Trump advisers
pressured CNN to retract a story by one of my reporters that laid out
possible ties between people in the Trump administration and a giant Russian
investment fund, which had attracted the attention of Senate investigators.
Trump's then-adviser Anthony Scaramucci, who was mentioned in the story
because he had met with the top executive of the Russian fund when it was
facing U.S. sanctions, threatened to sue CNN and demanded a retraction, and
there were concerns that Trump and the White House would seek to scuttle the
cable network's pending merger with AT&T if it did not pull the piece.
CNN buckled, retracting the story because it said it "did not meet CNN's
editorial standards." CNN executives refused to say whether they considered
the story accurate or not. In fact, the story had been reviewed and edited
at multiple levels by at least eight editors and myself. Trump celebrated
the retraction. I resigned from CNN, astounded that the network had
capitulated, and dozens of journalists told me how dismayed they were at the
outcome. The retraction was "a cowardly, panicked move," Risen told the
Washington Post, with CNN executives "easily intimidated by Trump." A number
of the core elements of the story involving contacts between the Russian
investment fund and Trump's transition team were later borne out in special
counsel Robert S. Mueller's report on the Trump-Russia investigation.
The specter of Russia and Trump surfaced for me again last October when I
was served with another subpoena for my reporting records, this one coming
from lawyers for Russian billionaire businessperson Mikhail Fridman, a
founder of Russia's Alfa Bank. At the Times, I had written about Alfa Bank
and a chain of thousands of computer contacts between the servers for the
Trump Tower in New York and Alfa Bank in Moscow during the 2016 campaign.
Alfa Bank denied any connection to Trump, and lawyers for Fridman and others
at Alfa with vast financial resources behind them have been using subpoenas
to try to identify the computer scientists who discovered the mysterious
connection. While it wasn't clear whether Alfa Bank's lawyers were actually
working with the Trump administration in the litigation, they clearly shared
a common interest in discrediting the computer evidence, and "there's a
unity of purpose," one lawyer involved in the litigation told the New
Yorker.
My lawyers objected to the subpoena, and that case is still dragging on in
federal court.
In this latest episode, I don't know what the FBI may have found in
rummaging through my phone records. Nothing, I hope, except calls for
routine reporting matters and calls to and from my wife and kids. Like many
Washington reporters, I started using encrypted channels and other means
long ago to communicate with sensitive sources. Confidential sources are the
lifeblood of national security reporters in Washington. Without them, it
becomes impossible to report stories of important national interest.
Forty-nine states and the District of Columbia all have some form of a
"shield law" protecting journalists against disclosure of their sources.
Three decades ago, when I was a young reporter with the Los Angeles Times,
California's shield law protected me from being forced to disclose where I'd
gotten a batch of audio tapes that were evidence in a big murder case. Yet
for all the protection of journalists' sources at the state level, the
federal government - the place where it's needed most - still doesn't have a
shield law after years of failed attempts in Congress. It's a gaping hole in
First Amendment protections for journalists, made even clearer by last
week's disclosures.
The seizure of our phone records may turn out to be a boon for journalists,
however. The Justice Department announced last weekend, after two days of
criticism over the seizure of our phone records, that it would no longer use
subpoenas or other legal tools to obtain information about journalists'
sources. It was a major turnabout for the Biden administration, and if it
holds, it's a major boost for press freedom and the ability of journalists
to get information out to the public. I just wish that had been the policy
all along.