NYT Subpoenas Withdrawn: Justice Department Capitulates to Judge

Background: Reports on the Qatari Gift Aircraft

The proceedings stemmed from two "New York Times" articles that, citing insiders, reported Trump had to leave the NATO summit in Turkey aboard the older presidential aircraft Air Force One roughly two weeks ago. The reason given was that a Boeing 747-8 gifted by Qatar lacked missile defense systems and other protective features. Trump had indeed used the gift aircraft on the outbound flight from a British Royal Air Force base in Mildenhall, praising it as "the most luxurious aircraft in the world," but took the return flight from Ankara on the older aircraft.

The subpoenas had been issued on July 10, just two days after the first "NYT" article appeared, by the office of the U.S. Attorney for the District of Manhattan under Jay Clayton. Clayton, whom Trump has nominated as the future Director of National Intelligence, sought through the subpoenas to compel, among other things, the disclosure of anonymous sources. The Justice Department additionally demanded the surrender of phone data and records of the reporters. The FBI is said to have subpoenaed the journalists at the White House for a period of six hours.

Reaction of the "New York Times"

The "New York Times" fought the subpoenas and the associated demand for data in court, calling the action a violation of the constitutionally protected principle of press freedom. The newspaper's attorney, David McCraw, spoke according to a statement of an "important affirmation of our country's commitment to press freedom" and told the dpa that the subpoenas had been "obtained in bad faith to punish the 'Times' for its reporting." The paper was pleased, he added, that the government had acknowledged the subpoenas violated the law. With regard to the ongoing proceedings, he added: "Lassen sich nicht einschüchtern."

Judge Subramanian criticized several aspects of the prosecution's conduct during the more than hour-long hearing in sharp but measured terms. Among other things, he objected that the prosecutors had obtained an order from another federal judge directing mobile carriers not to inform the affected journalists about the subpoenaing of their phone data — even though the Justice Department had by then already publicly confirmed the existence of an initial round of subpoenas. Subramanian also pointed to binding case law and to the Justice Department's own current policy precluding such action.

The Judge's Criticism of the Prosecutors

Government representatives had argued that informing the journalists about the demand for phone data would have jeopardized the ongoing investigation by revealing the existence of the probe — even though that existence was already public knowledge and had been extensively reported by the "Times," NPR, and other media. The judge rejected this logic. In the polite language of the courtroom, Subramanian rebuked the prosecution, according to NPR, for effectively turning law and regulation on their head.

Particularly weighty, in the court's assessment, was the fact that the prosecutors had requested, in addition to the reporters' phone data, the mobile data of the mother of an "NYT" journalist as well as that of two journalists' spouses. Sean Buckley, who represented the subpoenas in court, apologized during the hearing for that step and acknowledged several mistakes. When asked by the judge, he replied: "That was a mistake, Your Honor, that we acknowledge. It was a consequence of trying to move quickly." Judge Subramanian responded: "These inadvertent errors — in hindsight you should have done things differently" and added: "These things are beginning to pile up." Subramanian also emphasized: "Subpoenas are the last step, not the first, but the last" and declared that the constitutionally protected right to free speech took precedence in this case.

Buckley also told the court that he was leading the broader investigation into the disclosure of security information to the "Times" and was not responsible for every individual procedural step. When pressed by the judge, he stated: "I don't review every piece of paper." Subramanian expressed dissatisfaction with this account and accused the prosecution of having proceeded in an expedited manner and without sufficient examination of alternative investigative avenues. The government offered to hold the subpoenas "in abeyance" for 14 days while other investigative approaches were pursued — an offer the judge did not accept.

Statement from the Justice Department

A Justice Department spokesman criticized the court's decision after the hearing and pointed out that the judge had threatened sanctions against the attorneys if the subpoenas were not withdrawn. In a statement to NPR, it said the judge's conduct overstepped "clear, long-standing principles and common sense" and blocked the grand jury from obtaining key evidence in a national security investigation. The Justice Department also stated: "We will hold accountable those who endanger national security through the disclosure of classified information — a serious federal crime." The investigations would continue, it added.

Trump himself had rejected security concerns about the aircraft on social media and announced plans to retrofit the Qatari gift plane. Whether the planned upgrades would remedy the security shortcomings remained unclear. Trump had previously had the aircraft ferried to the United States without him on board from a British base.

The Thursday hearing was held in public, even though the Trump administration had previously attempted to keep the court proceedings triggered by the subpoenas secret. "Times" reporters reported following the hearing that the newspaper would continue its coverage of the events. McCraw told NPR immediately after the conclusion of the hearing: "It's a great day for the First Amendment and a great day for the rule of law." The newspaper also stated in a statement: "Once again, the federal courts have stood up for what's right in this country."

Reporter Marsh, whose data was also affected, also drew a clear conclusion after the hearing. She wrote to NPR via text message: "To me this felt really un-American" and added: "They should never have issued any of these subpoenas in the first place." The wife of another "Times" reporter, Julian E. Barnes, had already pointed out in an NPR interview that morning the burden the subpoenas had placed on the journalists' families.

Implications for Press Freedom and Further Investigations

The judge had also pointed to the unusual circumstance that the subpoenas were personally attributed to Kash Patel. The "Times" had reported that Patel had himself ordered the issuance of the subpoenas on July 10, which were to compel reporters to testify for six hours at the White House.

The case is part of a series of attempts by the Trump administration to uncover journalistic sources. As the dpa reported, the Justice Department had already attempted this year to compel testimony from journalists at the "Wall Street Journal" and the "Washington Post" in investigations into disclosures. Observers assess the latest subpoenas as part of a broadly conceived press campaign by the government. The "New York Times" described the action as an "ongoing assault on press rights and the free flow of information to the public."

In a notable exchange near the end of the hearing, Judge Subramanian said: "I can't think of anything more inconsistent with The Sheep Detectives than having FBI agents show up at their doors." The phrasing alluded to the work of investigators who follow leads like reporters. The judge made clear that he saw the core of journalistic protection violated by the subpoenas.

The U.S. Attorney's Office announced that the prosecutors would formally withdraw the subpoenas, but at the same time indicated that the underlying investigations into the possible disclosure of classified information would continue. The subpoenas had previously been justified, according to the "NYT," only with an unspecified alleged violation of federal criminal law. Observers expect that the question of whether the Trump administration will in future again attempt to subpoena journalists from the "New York Times" or other outlets will be the subject of further legal disputes.

Thursday's decision is regarded as a victory for press freedom in the United States. It shows that federal courts are willing to quash subpoenas against the media when the Justice Department violates constitutional protections. For the "New York Times" and its journalists, the withdrawal of the subpoenas means an all-clear for now — but the newspaper also stated that it would continue to monitor the legal dispute closely and, if necessary, go back to court.