Case 1 :20- 03361- ZME * SEALED* Document 2 Filed 01/05/21 Page 1 of 5
UNITEDSTATESDISTRICTCOURT FORTHEDISTRICTOF COLUMBIA
INRE APPLICATIONOF USA FOR 2703(d ) ORDERFORSIX EMAIL SC No.20- - 3361 ACCOUNTSSERVICEDBY GOOGLE LLCFORINVESTIGATIONOF Filed Under Seal VIOLATIONOF
ORDER
The United States has submitted an Application pursuant to 18 U.S.C. 2703( d ) , requestingthat the Court issue an Order requiringGoogle LLC ( “ PROVIDER” ), an electronic communication and/ or remote computing service provider located in Mountain View, California,
to disclose the records and other informationdescribed inAttachmentA to this Order. The Court
finds that the United States has offered specific and articulable facts showing that are reasonable grounds to believethat the recordsor other information sought are relevantand material to an ongoing criminal investigation. Furthermore, the Court determines that there reason to believe that notification of the existence of this Order will seriously jeopardize the ongoing investigation, including by giving targets an opportunity to destroy or tamper with evidence. See
18 U.S.C. ( b ) ( 3) and ( 5 ).
IT IS THEREFORE ORDERED, pursuant to 18 U.S.C. 2703 d ) , that PROVIDERshall, within ten days of receipt of this Order, disclose to the United States the records and other
informationdescribed inAttachment A to this Order.
IT IS FURTHERORDERED, pursuantto 18 U.S.C. ( b ), thatPROVIDERshallnot disclose the existence ofthe application ofthe United States orthis Order ofthe Court to any other person ( except attorneys for PROVIDERfor the purpose ofreceiving legal advice) for a period of Case 1 :20- - 03361- SEALED* Document 2 Filed 01/05/21 Page 2 of 5
one year ( commencing on the date of this Order), unless the period of nondisclosure is later modifiedby the Court.
ITIS FURTHERORDEREDthat the Applicationand this Order are sealeduntilotherwise ordered by the Court, except that the United States may disclose the existence and /or contents of the Applicationand this Order to appropriate law enforcement authorities.
2020.12.30
21:53:44 ' Date:
UNITED STATESMAGISTRATEJUDGE
2 Case 1 :20- 03361- * SEALED* Document 2 Filed 01/05/21 Page 3 of 5
ATTACHMENT A
TheAccount( s)
The Order applies to certain records and other information for any Google LLC
( “ PROVIDER ) account( s) associated with the followingidentifier( )
[email protected](TARGET ACCOUNT 1) ;
[email protected]( TARGETACCOUNT2 ) ;
michael[email protected]( TARGET ACCOUNT 3 ) ;
[email protected]( TARGET ACCOUNT 4 ) ;
[email protected]( TARGET ACCOUNT 5 ) ;
[email protected]( TARGET ACCOUNT 6 ) ; and any preserved data and/ or preservation numbers associated therewith.
II. Recordsand otherinformationto be disclosed
A. Information about the customer or subscriber ofthe Account( s )
PROVIDER is required to disclose to the United States the following records and other information, if available, for each account or identifier listed in Part of this Attachment ( the
“ Account( s) ” ) constituting information about the customer or subscriber ofthe Account( s) for the time period from January 14, 2017, through April 30, 2017:
1. Names includingsubscribernames, usernames, and screen names) ;
2. Addresses ( including mailing addresses, residential addresses, business addresses, and email addresses );
3. Localandlongdistancetelephoneconnectionrecords;
4. Records of session times and durations, and the temporarily assigned network
addresses ( such as Internet Protocol ( IP ) addresses) associatedwith those sessions; Case 1 :20- - 03361- * SEALED* Document 2 Filed 01/05/21 Page 4 of 5
5. Length of service ( including start date ) and types of service utilized;
6. The identity ofany cookies associatedwith each account;
7. Telephone or instrument numbers ( including MAC addresses) Electronic Serial Numbers (“ ESN ), Mobile Electronic Identity Numbers (“ MEIN ” ), Mobile Equipment Identifier ( “MEID ” ) Mobile Identification Numbers (“MIN ” ), Subscriber Identity Modules (“ SIM ” ), Mobile Subscriber Integrated Services Digital Network Number (“MSISDN , International Mobile Subscriber Identifiers ( “ IMSI” ), or International Mobile Equipment Identities (“ IMEI” ) associated with the accounts ;
8. Other subscriber numbersor identities ( including the registrationIP address) , including any current or past accounts linkedto the Account( s) by telephonenumber, recovery or alternatee-mailaddress, IP address, or other uniquedevice or user identifier; and
9. Means and source of payment for such service ( including any credit card or bank
account number) and billingrecords.
10. A statement as to whether the Account( s ) or any devices associatedwith the Account( s ) had locationservices or GPS activated or enabled, and if so, whether PROVIDERdoes or does not have geolocation available for the Account(s) or any devices associatedwith the Account(s) forthe time periodfrom January 14, 2017 throughApril 30, 2017
B. All records and other information relating to the Account( s) ( except the contents of communications )
PROVIDER is required to disclose to the United States the following records and other information, ifavailable, for the Account( s ) for the time period from January 14, 2017, through
April 30, 2017, constituting all records and other informationrelating to the Account( s) ( except the contents of communications ), including :
1. Records of user activity for each connection made to or from the Account (s), including log files; messaging logs; the date, time, length, and method of connections; data transfervolume; user names and source and destinationInternetProtocoladdresses;
2. Informationabout each electronic communication sent or received by the Account( s ) ,
including the date and time of the communication, the methodof communication, and
2 Case 1 :20- 03361- ZME * SEALED* Document 2 Filed 01/05/21 Page 5 of 5
the source and destinationofthe communication(suchas sourceand destinationemail addresses, IP addresses, and telephone numbers), and any other associated header or routinginformation; and
3. Identification of any PROVIDER account( s ) that are linked to the Account( s ) by cookies, includingallPROVIDERuserIDs that loggedinto PROVIDER'sservicesby the same machineas the Account( s).
4. Identificationofany forwarding email services used to or from the Account, including
the header identificationand metadata information associated with communications
forwarded to PROVIDER Accounts from other email accounts or forwardingservices.
5. Identificationofall services and features activated on the Account(s), including use of Google Drive and related features .
A. Definitions :
1. As usedherein, “unique device or user identifier ” refers to any uniquenumberor set of characters stored or generated by Google that may be used to identify or track users or devices , including but not limited to cookies , unique application number, universally unique identifier or “ UUID , ” globally unique identifier or “GUID ” Advertising ID, Android ID, MAC address , IMEI number , MEID number, and electronic serial number or ”
2. As used herein , “ cookies” refers to any cookie technology used by Google, including cookies related to user preferences (such as NID), security cookies , process cookies , cookies used for advertising (such as NID , SID, IDE, DSID, FLC, AID, TAID , and exchange_uid ) cookies linking activity across devices (such as AID and TAID ), session state cookies , and cookies pertaining to Google Analytics .
3 Case 1 :20- 03361- ZME * SEALED* Document 4 Filed 03/03/21 Page 1 of 1
UNITEDSTATESDISTRICTCOURT FORTHEDISTRICTOF COLUMBIA
INRE APPLICATIONOF USA FOR 2703(d ) ORDERFORSIX EMAIL SC No.20- - 3361 ACCOUNTSSERVICEDBY GOOGLE LLCFORINVESTIGATIONOF Filed Under Seal VIOLATIONOF
ORDER
Upon consideration of the Government's ex parte Motionto Modify Order in this matter, the Courtagreesto providethe reliefrequested.
IT IS THEREFORE ORDERED, that the United States serve this Order onto Goolge LLC
( “ Google” ) and that Google may disclose the existence and substance of this Order and the
January 5 , 2021 Order to Deputy General Counsel for the New York Times, David McCraw , but that Google, its counsel, and Mr. McCraw may not share the existence or substance of either of these Orders any other personwithout further approval from this Court ( untilJanuary 5 , 2022 unless later modified by the Court).
IT IS FURTHERORDERED that Google shall promptlyprovide the Governmentwith all records responsive to this Court's January 5 , 2021 Order by March 11, 2021.
AND IT IS FURTHER ORDERED the Government's Motion to Modify Order and this
Orderbe sealeduntilotherwiseorderedby the Court, exceptthatthe UnitedStatesmaydisclose the existence and / or contents ofthis Order to appropriate law enforcement authorities.
2021.03.02 17:49:40 Date :
UNITED STATESMAGISTRATEJUDGE Gibson, Dunn& CrutcherLLP GIBSONDUNN 1050 Connecticut Avenue , N.W. Washington , DC 20036-5306 Tel 202.955.8500 www.gibsondunn.com
TheodoreJ. BoutrousJr. Direct: +1213.229.7804 Fax: +1213.229.6804 [email protected]
March 16, 2021
VIA ELECTRONICMAIL
Tejpal Chawla Assistant United States Attorney U.S. Attorney's Office for the District of Columbia 555 4th Street NW Washington, DC20530
Adam Small Trial Attorney U.S. Department of Justice 950 Pennsylvania Avenue NW Washington , DC 20530-00001
Re: Application for 2703(d) Order for Six EmailAccounts Servicedby GoogleLLC
DearCounsel:
We representthe New York Times. Thank you for speaking earlier today.
As discussedonthe call, we do notbelieve there is a legitimatebasis for continued nondisclosureofthe Government'sabove- referenced applicationor the January 5 , 2021 Order directed to Google LLC. As you know , inDecember2020, the UnitedStates submittedan applicationpursuant to 18 U.S.C. (d) for anorder requiringGoogle to disclose records and other informationassociatedwith six e-mail accounts ofthe New York Times, which is an enterpriseclient of Google. Those accounts correspondto four current or formerNewYork Times reporters. The Governmentalso sought an order pursuantto 18 U.S.C. (b) preventingdisclosureofthe existenceor substance ofits applicationor the Court's order onthat application. OnJanuary 5 , 2021, MagistrateJudge Zia M.Faruqui granted both orders. Ingrantingnondisclosure, the Court reliedonthe Government's apparentrepresentationthat notification“ will seriouslyjeopardize the ongoinginvestigation, includingby givingtargets an opportunity to destroyor tamper with evidence.” See Jan. 5 , 2021 Order, InreApplicationofUSAfor 2703( d) Order forSix EmailAccounts Servicedby Google LLC forInvestigationofViolation of [Redacted] 20-sc -3361, Dkt 2 ( Order ). But any such representationmust have omittedthe relevant facts and context, whichcannot support ongoingnondisclosure. The Government'sapplicationappearsto relate to a well knownleak investigation an investigationthat has had intense media and public scrutiny
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for an extendedperiodoftime— such that no court examininga full andaccurate record could find a riskof seriousjeopardy to the investigationfrom disclosureofthe application. Accordingly, the order requiringnondisclosureis unjustifiedand unconstitutionalunderthe First Amendment. We thus respectfullyrequestthat you agree to withdraw the Government'snondisclosurerequest andpromptlyadvise the Court ofyour revisedposition on nondisclosure.
ApplicableLegalPrinciples
Courts uniformly have found that nondisclosure orders imposed under Section 2705 are both content-based restrictions on speech and prior restraints . See, e.g. , Matter of Search Warrant for redacted ] .com , 248 F. Supp. 3d 970, 980 (C.D. Cal . 2017 ) ( “ Courts considering the issue have almost uniformly found that Section 2705 (b ) NPOs [notice preclusion orders , or NPOs issued under analogous statutes, are prior restraints and / or content-based restrictions. “ G ] ag orders content-based because they effectively preclude speech on an entire topic — the ...underlying criminal investigation .” In re Sealing & Non Disclosure of Pen/Trap / 2703(d ) Orders, 562 F. Supp . 2d 876 , 881 ( S.D. Tex . 2008 ) . Such “ naked prohibition [ s] against disclosure [ are fairly characterized as a regulation of pure speech .” Bartnicki v . Vopper, 532 U.S. 514, 526 (2001 ). Orders prohibiting disclosure of Government electronic search and seizure applications are also paradigmatic prior restraints . See, e.g. , In re Sealing & Non - Disclosure of Pen/ Trap /2703(d ) Orders, 562 F. Supp. at 881 ; Microsoft Corp. v. U.S. Dep’t of Justice, 223 F. Supp. 3d 887 , 905 (W.D. Wash . 2017 ) .
Courts have also uniformly held that such prior restraints and content -based restrictions on pure speech are subject to the strictest form of First Amendment scrutiny and “ bear[] a heavy presumption against [their constitutional validity. ” Se Promotions, Ltd. v. Conrad, 420 U.S. 546 , 558 ( 1975) . As the Supreme Court has recognized “ prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass n Stuart, 427 U.S. 539, 559 ( 1976) ; see also, e.g., Alexander v . United States, 509 U.S. 544, 554 ( 1993) ( recognizing that the First Amendment “ provid [ es] greater protection from prior restraints than from subsequent punishments ”) . Under strict scrutiny, the Government must show that the prior restraint “ furthers a compelling interest and is narrowly tailored to achieve that interest. ” Reed v . Town of Gilbert, 576 U.S. 155, 171 (2015) .
Section 2705 (b) of the Stored Communications Act permits a governmental entity acting under Section 2703 to apply, in certain enumerated circumstances , for a protective order, prohibiting providers of electronic communications services from notifying others of their receipt of legal process. In particular, Section 2705 (b) provides that a court may enter such an order only if it determines that notification of the existence of the warrant, subpoena , or GIBSON DUNN
March 16, 2021 Page 3
court orderwould reasonablyresult in: “ ( 1) endangeringthe life or physicalsafety ofan individual; ( ) flight fromprosecution; (3) destructionofor tamperingwith evidence; (4) intimidationofpotentialwitnesses; or (5) otherwiseseriouslyjeopardizingan investigation or undulydelayinga trial. ” 18 U.S.C. 2705(b) .
There Is No Basis For Nondisclosure In These Circumstances
The uniquefacts andcircumstanceshere, whichwere likelynot fully providedto the Court, makeclearthatthe Governmentcannotsustainits heavyburdento justify ongoing nondisclosure.
While Section 2705 (b) is routinely invoked for gag orders , most of the statutory bases for nondisclosure are not implicated here . The Order was granted on the basis that there was purportedly “ reason to believe ” that disclosure would “ seriously jeopardize the ongoing investigation ,” which would giv [ e] targets an opportunity to destroy or tamper with evidence . ” Order at 1 (citing 18 U.S.C. (b) (3) , (b) (5)) . The Court did not find reason to believe disclosure presented a risk of harm to life or safety, of a flight from prosecution, or of intimidation of potential witnesses .
To be sure, whenever there is a criminal investigation , there is typically some chance that the investigation being made public could jeopardize that investigation. Indeed, there are likely many instances when the need to preserve secrecy around an ongoing investigation may constitute a compelling interest justifying a temporary nondisclosure order , as when the criminal conduct ongoing and there is a credible risk that disclosure would prompt tampering with easily-destroyed evidence or flight from prosecution . E.g., Matter of Subpoena 2018R00776 , 947 F.3d 148, 156 ( Cir. 2020 ); In re Search of Info. Associated With Specified E -Mail Accts ., 470 F. Supp . 3d 285, 291 (E.D.N.Y. 2019) (“Because the criminal conduct is ongoing , there is a danger that ifwitnesses and perpetrators learn of the Search Warrant, they will flee, alter or conceal their behavior, and destroy evidence . Secrecy of such an ongoing criminal investigation thus constitutes a compelling Government interest .
Eveninsuchinstances, courts haveseenfit to pushbackon the breadthofthe nondisclosureorders sought by the Government, inrecognitionofthe FirstAmendmentvalues at stake. For example, numerouscourts haverejectedindefinitegag orders as unconstitutional, imposingexpirationdates on sealingand non disclosureprovisions, see, e.g., In re Sealing& Non- Disclosure of Pen/ Trap/2703(d ) Orders, 562 F. Supp. 2d 876, 883 (S.D. Tex . 2008); In re Search WarrantIssuedto Google, Inc., 269 F. Supp. 3d 1205, 1216 (N.D.Ala. 2017); MatterofSearchWarrantfor redacted].com 248 F. Supp. 970, 983 (C.D. Cal . 2017), or simplydenyingapplicationsfor indefiniteorders, see, e.g., MatterofGrandJury Subpoenafor [Redacted] @ Yahoo.com, 79 F. Supp. 3d 1091, 1091(N.D. Cal. 2015). GIBSONDUNN
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Butunderthe specific and uniquecircumstancesof this case— where boththe obvioustargets ofthe investigationand the public at large have longknownabout the investigation's existence — there is no reasonto believethe investigationwill be seriouslycompromised, whichwas the onlypurportedbasis for nondisclosurehere.
The Order implicates the email accounts for four New York Times reporters Matt Apuzzo , Michael S. Schmidt, Adam Goldman, and Eric Lichtblau — between January 14, 2017, and April 30 , 2017. That time frame is a notable one in our recent political history and during that period, those four reporters co -wrote a widely -read article for The New York Times discussing how then -FBI director James Comey handled investigations related to the presidential candidates in the 2016 election (the “ Article ). Article’s sources included interviews with “ 30 current and former ” officials who “ discussed the investigations on the condition of anonymity because they were not authorized to speak to reporters.
It is patently clear that the Government's investigation is of the person or persons who were sources to The New York Times reporters whose records are sought by the Order. But the Government's interest in and investigation related such issues is publicly known and has been highly publicized . More than a year ago , multiple news outlets reported on the front page that “ [ ] enforcement officials are scrutinizing ” that very Article in an “ unusual ” investigation to determine who disclosed the allegedly classified information discussed therein .
2 MattApuzzoet al. , ComeyTriedto Shieldthe F.B.I.FromPolitics. ThenHeShapedan Election, N.Y. Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.
3 Id
4 The reportersactedentirely lawfully inreceivingand publishingthe information, however it was obtained. See, e.g., Smith v. DailyMailPublishingCo., 443 U.S. 97, 102 ( 1979) (“ S ]tate actionto punishthe publicationoftruthful informationseldomcan satisfy constitutionalstandards. ; Bartnickiv . Vopper, 532 U.S. 514, 535 (holdingthat even “ illegal conduct by the source that obtainedthe information“ does not suffice to removethe FirstAmendmentshieldfrom speechabout a matter ofpublic concern” ) . Further, the nondisclosureorder abridgesThe New York Times and its reporters legitimate First and Fourth Amendmentinterests, as it preventsthe attorneys coveredunder the order from conferringwith the reporterswhose recordsare being sought about, inter alia, the relevanceof the requested records, any confidential sources that may be disclosedby the records, and privacyinterests implicatedby disclosure. 5 Adam Goldman, Justice Dept.InvestigatingYears - OldLeaks andAppears Focusedon Comey, N.Y. Times ( Jan. 16, 2020), https://www.nytimes.com/2020/01/16/us/politics/leak-investigation-james-comey.html; see also, e.g., Matt Zapotosky,Federalprosecutors exploreyears-oldmedia disclosure, raisingfears Trump is using Justice Dept. for politicalgain, Wash. Post (Jan. 17, 2020), https://www.washingtonpost.com/national-security/federal-prosecutors-explore-years-old-media disclosure-raising -fears - trump-is-using-justice -dept- for -political- gain /2020 / 01/ 16 /6bc56b68-38c2-11ea bb7b-265f4554af6d_story.html; Alison Durkee, The DOJIs InvestigatingJames Comey Over Years Old ( nextpage) GIBSON DUNN
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Any target of the investigation has therefore known about it for over a year . As such, there is no reasonable basis to believe the investigation would be seriously jeopardized by the fact of the Government's application being known. Nor is there any risk that the information the Government seeks would be destroyed or tampered with, since the Government seeks electronic evidence that, to our knowledge, has been preserved by The New York Times ' service provider, and anyone who might be a target of the investigation has no control over or access to such electronic evidence . The Government thus does not have a compelling interest in nondisclosure of its application and related investigation and a gag order is unsupportable. See In re Grand Jury Subpoena Issued to Twitter, 2017 WL , at * 6 (holding that a gag order was notjustified where the investigation was already public, noting that a mere “ interest in grand jury secrecy does not, without more, provide a statutory basis for a nondisclosure order under Section 2705 (b ) ), report and recommendation adopted, 2017 WL 9287147 (N.D. Tex. Oct. 19, 2017) .
Even ifthe investigation to which the Government's 2703 (d) application pertains is in some way different from the investigation revealed in the January 2020 reporting, years of intense media attention have long put any potential suspect on notice that a criminal investigation was likely. Nearly 20 million people watching on live television heard Director Comey tell a Senate committee a few months after the Article published that he directed a friend to give a memo to the press .? The Department of Justice looked into whether Director Comey directed his friend to turn over the contents of a memo detailing Director Comey’s interactions with President Trump to The New York Times , but ultimately declined to
Leaks,Vanity Fair (Jan. 16, 2020), https://www.vanityfair.com/news/2020/01/james-comey-doj investigation-leaks 6 Lisa Richwine,About 19.5million U.S. viewers watchedComey testify about Trump, Reuters (June 9, 2017),https://www.reuters.com/article/us-usa-trump-russia-ratings/about-19-5-million-u-s-viewers watched -comey-testify-about-trump- idUSKBN1902X6. 7 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence , S. Hrg. 115–99 ( June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf; see Erik Ortiz and Dafna Linzer, Who Is Daniel Richman, the Columbia Professor Who Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM), https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leaked comey -s -private-n769846 ; Ken Dilanian, Dafna Linzer, and Alex Johnson, Comey Wrote Memo Saying Trump Urged Him to Drop Flynn Investigation : Sources, NBC News (May 17, 2017 , 3:58 AM ), https://www.nbcnews.com/news/us-news/comey-wrote-memo-saying-trump-urged-him-drop-flynn investigation -n760471; Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred, N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comey firing.html
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prosecute Director Comey. The Department of Justice's inspector general, moreover, conducted two highly publicized investigations of Director Comey’s actions that resulted in public reports and foretold further investigations . The first report detailed the decisions described inthe Article related to the 2016 election, warning that “ a culture of unauthorized media contacts” permeated the FBI and recommended that the FBI consider whether disciplinary provisions and penalties are sufficient to deter such improper conduct. The second report, while noting that the DOJ decided not to prosecute Director Comey, concluded that disclosing the memo “ set a dangerous example for personnel who the FBI “ depends on ... not to disclose sensitive information.
Moreover, the then -Presidentexplicitlyand quite publiclycalledfor a criminalinvestigation as he repeatedlycriticizedDirectorComey, tweetingthat he shouldbe prosecuted” becausehe violatedthe EspionageAct . And then-AttorneyGeneralJeffSessionshad publiclyannouncedin 2017 that the administrationhad “ tripledthe numberofactiveleak investigations andwarnedthat “ criminals” who disclosesensitiveinformation“ are, in fact, beinginvestigatedand prosecuted
8 AdamGoldman& KatieBenner, JusticeDept.Declinedto ProsecuteComey OverMemosAboutTrump, N.Y.Times( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html.
9 Off. of The InspectorGen., U.S. Dep’tof Justice, 18-04, A ReviewofVarious Actions by the Federal BureauofInvestigationand Departmentof Justice in Advance of the 2016 Election(2018) at 430, 500, https://oig.justice.gov/news/doj-oig-releases-report-various-actions-federal-bureau-investigation-and department-justice.
10 Off of The Inspector Gen. , U.S. Dep’t of Justice , 19-02, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda (2019 ) , at 60, https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf .
11 DonaldTrump @realDonaldTrump), Twitter ( April 13, 2018) , https://twitter.com/realDonaldTrump/status/984763579210633216 [ https://web.archive.org/web/20180619011759/https://twitter.com/realDonaldTrump/status/984763579210 633216
12 DonaldTrump ( @realDonaldTrump), Twitter, (Aug. 31, 2019) , https://twitter.com/realdonaldtrump/status/1167771834059755520 [ https://web.archive.org/web/20190831143616/https://twitter.com/realdonaldtrump/status/1167771834059 755520 13 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaks of Classified Materials Threatening National Security (Aug. , 2017), https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-delivers-remarks-briefing-leaks-classified materials see generally Ken Klippenstein, Trump Administration Referred a Record Number of Leaksfor Criminal Investigation, The Intercept (Mar. 2, 2021, 6:51 PM), https://theintercept.com/2021/03/02/trump leaks-criminal-investigation
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Inshort, anypotentialtarget indeed, the entirepublic hasknownfor years, from congressionalinquiries, agencyprobes, intensemediacoverage, and former President Trump's own words, ofthe existenceand threat ofcriminalinvestigationsrelatedto alleged leaks. Thus, on the specificfacts relevantto the investigationhere, the Governmentcannot meetits burdenofshowingthat disclosureof the instantapplicationwould seriously jeopardizeits investigation, as it mustunder the relevantstatuteand the FirstAmendment.
Conclusion
Whilewe recognizethat the Courtmade the requisitestatutoryfindings, we submitthe Government'sapplicationlikelydidnot providethe Courtwith the full andnecessary context as laid out hereinand that, inlightofthese facts, there is no reasonablebasis to believedisclosurewould seriouslyjeopardizethe investigation. Forall ofthese reasons, nondisclosureofthe existenceand substanceofthe Government's2703 d) applicationand the order grantingthat applicationis entirely unjustified. The law and interests of justice mandatethat the nondisclosureorderbe withdrawn.
Please confirm by 12pm ET on Friday, March 19 that the Government will withdraw its request for the nondisclosure order in this matter. As discussed, we would appreciate the opportunity to meet with you and any appropriate supervisors within your respective offices to discuss this further.
Thank you for your consideration .
Respectfullysubmitted,
Theodore J. Boutrous Jr. AlexanderH. Southwell
14 Openness regarding Section 2703 orders and applications enhances the basic fairness” of the criminal system and “ the appearance of fairness so essential to public confidence in the system .” Press -Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 ( 1984) ; see also Inre Sealing & Non- Disclosure of Pen/ Trap / 2703( ) Orders, 562 F. Supp. 2d at 891 ( recognizingthat “ documentsauthored or generatedby the court itselfin discharging its public duties,” such as Section 2703 d) orders, are “ [ i ]n the top drawer of judicial records” and “ hardly ever closed to the public ) ; Mills v . Alabama, 384 U.S. 213 , 219 ( 1966) ( recognizingthat the First Amendment interests in free and informed“ discussionof governmental affairs” are paramount) Gibson, Dunn& CrutcherLLP GIBSON DUNN 1050ConnecticutAvenue N.W. Washington, DC 20036-5306 Tel 202.955.8500
www.gibsondunn.com
TheodoreJ. BoutrousJr. Direct: +1213.229.7804 Fax: +1213.229.6804 [email protected]
March 26 ,
VIA ELECTRONICMAIL
Tejpal Chawla Assistant United States Attorney U.S. Attorney's Office for the District of Columbia 555 4th Street NW Washington, DC 20530
Adam Small Trial Attorney U.S. Department of Justice 950 Pennsylvania Avenue NW Washington , DC 20530-00001
Re : In re 2703 ( d ) Order for Six New York Times EmailAccounts Serviced by Google LLC
DearCounsel
We write as counsel to The New York Times Company to respectfully request that the Government withdraw its application for a 2703(d) order for six New York Times e -mail accounts . See Jan. 5 , 2021 Order , In re Application of USA for 2703 (d ) Order for Six Email Accounts Serviced by Google LLC for Investigation of Violation of [ Redacted ], No. 20 -sc 3361, Dkt. 2 ( Order .
As you know , on March 16, 2021, we wrote to object to the nondisclosure order , which we believe is improper under both 18 U.S.C. (b ) and the First Amendment. The nondisclosure order is initself an impermissible restraint on the press's freedom to discuss and report on an issue of significant public concern . But it also represents an attempt to shroud in secrecy a more significant problem with the underlying Section 2703 d) application and order . That order is both legally improper and contrary to this Administration's stated positions on the News Media Guidelines and the constitutional guarantee of a free and independent press . Using the press as an arm of an investigation runs rough-shod over the First Amendment and flouts the reporter's privilege and the Department of Justice's own guidelines .
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As nominee for his current position , Attorney General Merrick Garland testified that he is “ deeply committed” to the News Media Guidelines . As a D.C. Circuit judge , he reminded his colleagues that, unless the reporter's privilege is vigorously protected , confidential sources will be reluctant to disclose any confidential information to reporters ” —a result, he cautioned , that would “ undermine the Founders intention to protect the press.” Lee v. Dep't of Justice , 428 F.3d 299 , 303 (D.C. Cir. 2004) (Garland, J., dissenting) ( citations omitted ). In keeping with these important principles , we urge the Department to reconsider and withdraw its Section 2703 d) application .
Background
The investigation and Section 2703 d ) order at issue here sit at the intersection of two frequent targets of former President Trump: former FBIDirector James Comey and the media
Former President Trump has long harbored animosity toward Director Comey. A few days after Comey refused to tell Congress whether Trump or members of his campaign were under criminal investigation for possible collusion with Russia, Trump fired him . And when Trump suggested he had tape recordings of his conversations with Comey , Comey leaked a memo to the press that sparked the special counsel's investigation2 and, it seems , this leak investigation as well.3 Trump's vendetta against Comey grew even further from there . When reports emerged that the FBI had opened an investigation into whether Trump was a Russian agent, Trump lashed out, tweeting that Comey and others had “ tried to do a number on your President and that he was a liar “caught in the act. ” Over the years , Trump
1 Eric Tucker, The Comeyfiring,as retoldby the Mueller report, Associated Press (Apr. 23, 2019), https://apnews.com/article/4fflecb621884a728b25e62661257ef0. 2 Open Hearingwith Former FBIDirector James ComeyBefore S. Comm. On Intelligence, S. Hrg. 115–99 (June 8, 2017), at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf. 3 Matt Zapotosky, Federal prosecutors explore years old media disclosure , raisingfears Trump is using Justice Dept. for politicalgain, Wash . Post (Jan. 16, 2020) https://www.washingtonpost.com/national security / federal -prosecutors -explore -years -old -media -disclosure -raising -fears - trump -is -using -justice -dept for -political -gain /2020 / 01/ 16 / 6bc56b68-38c2-11ea 265f4554af6d_story.html.
4 Richard Gonzales & Sasha Ingber, Trump Lashes Out At FBIAfter NY Times ' Reported On Inquiry Into His Intentions, Public Radio (Jan. 11, 2019 10:40 PM), https://www.npr.org/2019/01/11/684737549/white-house-denounces-ny-times-report-on-fbi-investigation of-trump -russia - s.
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not only lobbed insults at Comey calling him, among other things, a “ DIRTY COP” " crazy a real nut job also threatened him with imprisonment and suggested he committed treason. Indeed, former officials told The Washington Post that they worried that this very investigation's purpose was to “ dredg [ e ] up old allegations of wrongdoing to help Trump go after” Comey. Insofar as this investigation is tied up with Trump's campaign of retaliation against Comey, it was improper from the start and, certainly , ought no longer to be pursued now that Trump is no longer in office and the Department of Justice has new leadership .
The investigationalso appears to be another salvo in former PresidentTrump’s war on the press. Indeed, former officials have said his hatred of the media” fueled this very investigation. 10 In his first two years in office, eleven percentofTrump's thousands of tweets “ insulted or criticizedjournalists and outlets, or condemnedand denigrated the news media as a whole. He told CBS News that he did so to “ discredit and demean” the
5 DonaldTrump ( @realDonaldTrump), Twitter(Apr. 30, 2020) , https://web.archive.org/web/20200501095446/https://twitter.com/realdonaldtrump/status/12558321175834 95169
6 Matt Apuzzo, Maggie Haberman, and Matthew Rosenberg, Trump Told Russians That Firing Job Comey EasedPressure From Investigation, N.Y. Times (May 19, 2017) , https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html.
7 Donald Trump ( @realDonaldTrump), Twitter (Dec. 15 , 2019) , https://twitter.com/realDonaldTrump/status/1206281389991219200 , [ https://web.archive.org/web/20200111121930/https://twitter.com/realDonaldTrump/status/120628138999 1219200
8 DylanStableford, Trump calls treason’on Comey, McCabe and a number of people', Yahoo (May 23 , 2019) , https://news.yahoo.com/trump-comey-mc-cabe-strzok-page-guilty-of-treason-214458786.html.
9 Matt Zapotosky , Federal prosecutors explore years old media disclosure , raisingfears Trump is using Justice Dept. for politicalgain, Wash . Post ( Jan. 16, 2020 ), https://www.washingtonpost.com/national security / federal-prosecutors -explore -years -old -media - disclosure -raising - fears -trump -is -using - for -political-gain / 2020 /01/ 16 /6bc56b68-38c2-1 bb7b -265f4554af6d_story.html .
10 Matt Zapotosky, Federalprosecutors exploreyears -oldmedia disclosure,raisingfears Trump is using Justice Dept. for politicalgain, Wash. Post ( Jan. 16, 2020), https://www.washingtonpost.com/national security / federal-prosecutors-explore-years-old-media-disclosure -raising-fears -trump - is-using-justice -dept for- political-gain / 2020 /01/ 16 /6bc56b68-38c2-11ea-bb7b -265f4554af6d_story.html.
11 Stephanie Sugars, Fromfake news to enemy of thepeople:An anatomy ofTrump's tweets,Committee to Protect Journalists (Jan. 30, 2019 10:00 AM), https://cpj.org/2019/01/trump-twitter-press-fake-news enemy-people
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media. He has directed particular ire at The New York Times and The Washington Post, whose stories are at the heart of this investigation calling them “ two of the most dishonest media outlets around. Truly, the Enemy of the People ! And these attacks were not merely rhetorical : his re-election campaign filed libel lawsuits against both The Times and The Post, while his administration “ stepped up prosecutions of news sources , interfered in the business of media owners , [ and] harassed journalists crossing U.S. borders.
In short, this investigation appears to be inextricably intertwined with former President Trump's personal grievances against Director Comey and The New York Times . Since the investigation launched, President Biden has taken office, touting his “ commitment to reaffirming the Department of Justice as a pillar of independence and integrity ” and to ensuring that it functions as the American lawyer's not the President's law firm . In keeping with that commitment , the Department should withdraw the 2703 (d) application , which is contrary to the Department of Justice's own News Media Guidelines and Enterprise Data Guidelines , as well as to the protections of the reporter's privilege under both the First Amendment and the common law.
The Section 2703 ( d ) Order Contravenes the NewsMedia Guidelines
own guidelines for seeking information from the news media in criminal investigations (the News Media Guidelines) prohibit the Government from doing exactly what it has tried to do here — unjustifiably conscript the press into serving as an investigative arm ofthe Government.
12 Lesley Stahl: Trump admitted mission to “discredit press, CBS News (May 23, 2018 5:39 AM) , https://www.cbsnews.com/news/lesley-stahl-donald-trump-said-attacking-press-to-discredit-negative stories /
13 Donald Trump ( @realDonaldTrump , Twitter ( Apr. 19, 2020 ) , https://web.archive.org/web/20190421100338/https://twitter.com/realdonaldtrump/status/11193507500967 85409
14 See Complaint, DonaldJ. Trump for President, Inc. v . TheNew York Times Co., No. 152099/2020( Cnty. Supreme Ct. Feb. 26, 2020) ; Complaint, DonaldJ. Trump for President, Inc. v . WP Co. LLC, No. 1: 20 -cv - 00626 -KBJ (D.D.C. Mar. 3 , 2020) . The New York Times action has since been dismissed. See also DonaldJ. Trump for President, Inc.v . The New York Times Co., 2021WL 938979, at * 1-2 (N.Y. . Sup. Ct. Mar. 9, 2021) .
15 The TrumpAdministrationandthe Media, Committeeto ProtectJournalists( April 16, 2020) , https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/.
16 Biden vows to restore faith in U.S. law with Justice Dept nominees, Reuters ( Jan. 7, 2021), https://www.reuters.com/article/us-usa-biden-attorney-general/biden-vows-to-restore-faith-in-u-s-law-with justice-dept- nominees-idUSKBN29C1FY.
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The News Media Guidelines were introduced by the Department of Justice — and codified into federal regulations nearly fifty years ago , in response to concerns about the growing number of subpoenas to compel journalists to divulge confidential sources . Recognizing the important principle that the freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, ” the guidelines serve as an important bulwark against law enforcement encroachments on that freedom , by allowing prosecutors to seek information from the media only when doing so is “ essential ” and all other avenues have been exhausted . 28 C.F.R. 50.10 a )(1), ( )(4)(ii)(A ) .
Significantly, the News Media Guidelines were strengthened in 2015 in response to two highly controversial incidents that, like this one, exploited the press in service of leak investigations first, subpoena of phone records belonging to the Associated Press, in connection with its investigation of leaked information regarding a Yemeni terrorist plot, 19 and second, DOJ's seizure of the contents of an email account belonging to Fox News reporter James Rosen, as part of an investigation into leaked information about North Korean missile tests.20 One of the key changes introduced in 2015 was to extend the News Media Guidelines to Section 2703 (d) orders , such that applications for such orders require the approval of the Attorney General , are subject to a presumption of notice, and can be made only upon a showing “ that the information sought is essential to a successful investigation , that other reasonable alternative investigative steps to obtain the information have been exhausted, and that the request has been narrowly tailored to obtain only the information
17 Although the Guidelines do not create substantive or procedural rights, see 28 C.F.R. 50.10( ), they nonetheless represent the stated policies and practices” of the Department regarding use of law enforcement tools to obtain records from the news media, see Dep’t of Justice, Report on Review of News Media Policies, at 1 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news media.pdf, and the Department has emphasized the need “ to ensure consistent ...application of the policy,” Gen. Eric Holder, Memorandum to all Department Employees on Updated Policy Regarding Obtaining Information from , or Records of, Members ofthe News Media; and Regarding Questioning, Arresting, or Charging Member[ s ] of the News Media, at 1 ( Jan. 14, 2015 ), https://fas.org/sgp/othergov/doj-media-rev.pdf. It sets a dangerous precedent for the Department to simply ignore settled and carefully crafted DOJ policies when convenient.
18 Josh Gerstein, Holder broadens protectionsfor media, Politico (Jan. 14, 2015 3:04 PM), https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071.
19 Ewen MacAskill, Eric Holder Defends AP Seizure Citing Major Security Threat to Public, The Guardian (May 15 , 2013), https://www.theguardian.com/world/2013/may/14/ap-phone-records-subpoena-holder
20 N.Y. Times Editorial Board, Another Chilling Leak Investigation , N.Y. Times (May 21 , 2013), http://www.nytimes.com/2013/05/22/opinion/another-chilling-leak-investigation.html.
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necessary for the investigation . 21 The guidelines remained intact throughout the Trump Administration , even after a review by then - Attorney General Jeff Sessions in 2017.22
Inseekingthe Section2703(d) order at issue, the Governmentappears to have ignored virtuallyevery aspect ofthe guidelines.23 Eachviolationdetailedbelow shows the improprietyofthe order and, collectively, they paint a telling and disconcertingpictureofthe Department'smotivesininitiallypursuingthe order.
First, News Media Guidelines are meant to prevent news organizations from being surprised by subpoenas , 2703 d orders, or search warrants- -as The Times was here — by requiring prosecutors to notify journalists first. 24 That notice requirement is a critical safeguard , guaranteeing that journalists — who rely on promises of confidentiality to encourage sources to come forward with newsworthy information — know if and when the Government is scrutinizing their communications or records , and are able to potentially petition the court for relief, as appropriate . The guidelines prohibit prosecutors from seeking a 2703 ( d) order until after they have “ pursued negotiations with the affected member of the news media. ” 28 C.F.R. 50.10( (5)(iv) (A ) ; see also 50.10 a )( 3 )-( 4 ). Rather than abide by that policy, DOJ inexplicably did not notify or engage with The New York Times about the information DOJ was interested in; indeed, The New York Times found out about the order only after its issuance and after its service provider fought to notify a designated individual at The Times, Deputy General Counsel David McCraw .
To be sure, the News Media Guidelines permit prosecutors to forgo negotiation ifthere are “compelling reasons, ” such as if“negotiations would pose a clear and substantial threat to the integrity ofthe investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” 28 C.F.R. ( )( 5 ) (iv)( A ); see also 50.10 a) (3 ) ( ) . There is no serious assertion that there is a risk ofdeath or harm to individuals or national security here. Theoretically, the Government has an interest in keeping its investigation secret, but the public knowledge about the investigation makes it plainthat
21 Dep’t of Justice, Report on Review ofNewsMedia Policies, at 3 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news-media.pdf; see 28 C.F.R. 50.10 (2015 )
22 Josh Gerstein& MadelineConway, Sessions: DOJreviewingpolicieson mediasubpoenas, Politico( Aug. 4,2017 1:45 PM), https://www.politico.com/story/2017/08/04/doj-reviewing-policies-on-media subpoenas -sessions -says -241329 .
23 We canonly assumethat, at a minimum, the Departmentfollowedthe guidelines' basicrequirementto obtain the authorization of the Attorney General or Acting Attorney General in place at the time.
24 Josh Gerstein, Holder broadens protections formedia , Politico (Jan. 14, 2015 3:04 PM), https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071 . GIBSONDUNN
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negotiation with The New York Times would not have led to a “ clear and substantial threat
to the integrity of the investigation ,” which is the regulatory requirement . The target of the investigation is not The New York Times nor any of its journalists , and the e-mail records for the four journalists implicated by the order are all electronic records that are fully preserved (which prosecutors would have learned had they engaged with The Times directly ). There is no basis to conclude that The Times would undermine the investigation . Indeed, The New York Times routinely works cooperatively with law enforcement and prosecutors , for example to authenticate published articles and photographs for evidentiary purposes , and regularly negotiates in confidence over DOJ requests for assistance , including in the prosecution of attorney Greg Craig, in a leak investigation arising from the securities investigation of Billy Walters , and in the FBI investigation of the attack on a Times journalist inside the Capitol on January 6. Moreover , if any “ compelling reasons ” not to notify The Times existed in January when the court issued the order to prevent notification , they seem to have quickly evaporated : By March , prosecutors acquiesced and permitted Google to notify The Times of the order . Plainly, there was never any compelling reason not to contact The Times first
Second, the News Media Guidelines expressly guard against requests that implicate confidential sources . Indeed, the guidelines is among other things, to “ protect confidential news media sources .” 28 C.F.R. 50.10 ( )(3 )(ii) ( emphasis added). This Section 2703(d) order, by contrast, is improperly designed purely to ferret out such confidential sources . Critically, compliance with the order could reveal not only the identity of the purported leaker or leakers who are presumably the target of the investigation, also the identities of other confidential sources with no connection to the activity under investigation. The order therefore undermines the trust that confidential sources place in reporters and jeopardizes the free flow of truthful information about government activities, in stark defiance of the requirement that “ [ r] equests ...be treated with care to avoid interference with newsgathering activities .... 50.10 ( ) 5 )(vii) .
Third, the News Media Guidelines place narrow limits on what information may properly be sought from the press. Inparticular, the guidelines provide that requests for information from the news media “ generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information . ” Id. 50.10( )( )( iv) . The guidelines also underscore that requests always “ should be narrowly drawn,” should avoid requiring production of a large volume of material,” and should not be used to obtain peripheral, nonessential , or speculative ” information . Id. (c)(4)(ii)(A) (viii) . Plainly, this Section 2703 (d) order for all non content records and other information relating to six New York Times e-mail addresses , including “ [ i ]information about each electronic communication sent or received by the Account( s) ” over the course of many months, goes well beyond these limits. See Order, GIBSONDUNN
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AttachmentA , at 2 ( emphasisadded). The breadthofthe Section2703(d) order, which goes wellbeyondpublishedinformationand strikes at the most sensitiveinformationin the custodyofthe newsmedia — the identitiesof confidentialsources— makes a mockeryofthe guidelines.
Fourth, the News Media Guidelines make clear that using law enforcement tools, including Section 2703 d) orders, to seek records from the news media should be considered an extraordinary measure [ ], not [ a] standard investigatory practice[ ] ” id 50.10 a ) ( 3) reserved only for when the information sought is “ essential ” to the investigation and the Government has “made all reasonable attempts to obtain the information from alternative, non-media sources, 50.10( )(4) ii)(A ), (iii). Here, however, there are plentiful alternative sources. As discussed inour March 16, 2021 letter, the investigation plainly relates to an article about how former FBI director James Comey handled investigations related to the presidential candidates in the 2016 election; Comey himself therefore represents at least one “ alternative, non-media source ” of information about who knew about the investigations and may have spoken to reporters. Moreover, all of the individuals Comey interacted with in the relevant time period, who are likely well known to the Government given Comey’s prominent role and security requirements , are additional alternative sources . And further alternative sources are all of the electronic communication repositories of Comey and the non media individuals he communicated with. A Section 2703( d) order for multiple New York Times email accounts is therefore hardly “ essential” to this investigation. 28 C.F.R. 50.10( )(4)(ii) (A ) .
In short, by seeking to gather journalists' information as a first resort, not a last resort; by refusing to negotiate directly and openly with The New York Times over the scope of the request ; and by jeopardizing the constitutionally protected flow of information from confidential sources to reporters, the Section 2703 (d) application at issue shows disdain for the News Media Guidelines . It also flies in the face of the Biden Administration’s paeans to the importance of “ a free and independent press ” and commitment to “ sharing accurate information with the American people. 25
In fact, as noted, at his confirmationhearingjust weeks ago, Attorney General Garland testified that he is “ deeply committed” to the News Media Guidelines and “ would expect to
25 Annie Karni, Jen Psaki'sDebut: No Attacks, No Lectures, No Crowd Size Fixation, N.Y. Times ( Jan. 20, 2021) , https://www.nytimes.com/2021/01/20/us/politics/jen-psaki-press-secretary.html; see also, e.g., Kamala Harris ( @KamalaHarris , Twitter ( Jul. 2, 2017) , https://twitter.com/kamalaharris/status/881622505840103424?lang=en ( “ The First Amendment & freedom of the press are critical to our democracy. ” ).
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re- up them.26 The Department should make good on that commitment by withdrawing its application for the Section 2703 d) order .
TheSection 2703 ( d ) Application Contravenes the Enterprise Data Guidelines
In addition to the multiple violations of the News Media Guidelines , seeking the order also violated separate DOJ guidelines on seeking enterprise data ( the Enterprise Data Guidelines ) that similarly prohibit the Department from engaging in an end -run around The New York Times.27 The failure to abide by the Enterprise Data Guidelines yet again illustrates why the 2703 (d) application is improper and must be withdrawn .
DOJ's guidelines for requesting enterprise customer data held by cloud service providers direct that law enforcement should seek data directly from the enterprise ” this case, the news media — whose records are being sought, rather than surreptitiously attempting to dodge the First and Fourth Amendment issues, as it did here.29 Notably the Enterprise Data Guidelines expressly advise prosecutors to go directly to the enterprise rather than to the cloud-storage provider when seeking information from the email accounts for a group of employees precisely what the Section 2703 (d) application seeks.30 The Enterprise Data Guidelines also recommend going directly to the enterprise's general counsel in such a circumstance. Only ifprosecutors have “ no choice but to seek disclosure directly from the provider ” —such as when the “ enterprise is essentially devoted to criminal activity” or where there are practical obstacles such as when “ the enterprise's is not capable of isolating and disclosing the necessary information ” or when law enforcement is “ unable to find a trustworthy point of contact the enterprise ” —should they bypass the enterprise.31
None ofthose exceptions applies, and prosecutors hadplenty of other choices here. They could have gone directly to The Times's general counsel ( whose contact information is
26 AttorneyGeneralConfirmationHearing, Day 1 , C - SPAN, at 1:35:35to 1:36:20(Feb.22, 2021) , https://www.c-span.org/video/?508877-1/attorney-general-confirmation-hearing-day-1.
27 SeekingEnterprise CustomerData Heldby CloudService Providers, U.S. Dep’t of Justice Dec. 2017 , https://www.justice.gov/criminal-ccips/file/1017511/download. 28 Like the NewsMediaGuidelines, the EnterpriseDataGuidelinesdo not create a cause ofaction. But the very fact that the Department failed to abide by both sets of guidelines is revelatory of the Department's reluctance to openly and directly seek records belongingto the news media— an act that, as it is well aware, raises grave FirstAmendment concerns.
29 Enterprise Data Guidelines, at 1 .
30 Id at 2 .
31 Id at 2–3.
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readily available ) rather than waiting for Google to force them to do so . And none of the circumstances that the Enterprise Data Guidelines suggest might warrant bypassing the enterprise are present here. The Times is not, for example, “ an enterprise ...essentially devoted to criminal activity target of the investigation.32 did prosecutors have any concern that The Times would destroy evidence , as demonstrated by the fact that they have not sent a formal 2703( f) preservation request to The Times or, as we understand , to Google . All e-mail records at issue have been preserved, which, again, the Government would have learned, had it notified and negotiated directly with The Times . There also was not a risk of jeopardizing the investigation because, as explained in our March 16, 2021 letter, this investigation was already public and anyone who might be a target of the investigation has no access to the data sought. 34
The First Amendment Prohibits Compelled Disclosure of The Times's Records
The Department's failure to seek records directly from The New York Times , as required under the News Media Guidelines and Enterprise Data Guidelines , is telling. Evidently , the Department knows that turning reporters into pawns in a leak investigation violates the First Amendment the attempt to cut out The New York Times and to shroud the operation in secrecy when seeking the order . But the Department cannot simply avoid reckoning with the First Amendment problems associated with compelled disclosure of news media records implicating confidential sources .
Then-Judge Garland's statements on the importance of the reporter's privilege are instructive. Dissenting from the denial of rehearing en banc in Lee v . Department of Justice , Judge Garland recognized that issuing subpoenas to reporters to gather information in connection with a leak investigation raised serious First Amendment concerns, and reminded his colleagues to “ be mindful of the preferred position of the First Amendment and the importance of a vigorous press. ” 428 F.3d 299, 303 (D.C. Cir. 2004 ) (Garland , J. , dissenting from the denial of rehearing en banc) (quoting Zerilli v. Smith, 656 F.2d 705 , 712 (D.C. Cir. 1981)). He wrote :
“ [ ] the [ reporter's privilege does not prevail in all but the most exceptional cases , its value will be substantially diminished . Unless potential sources are confident that compelled disclosure is unlikely , they will be reluctant to disclose any confidential information to reporters . ” [ Zerilli, 656 F.2d at 712. And if our case law has that consequence , it will undermine the Founders intention to protect the press “ that it
32 Id at 2
33 See id at 2
34 See id at 3 GIBSONDUNN
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couldbare the secrets of governmentandinformthe people.” New York Times Co. v. UnitedStates, 403 U.S. 713, 717 (Black, J., concurring) .
Lee, 428 F.3d at 303.
Judge Garland's caution applies with full force here . Compelling disclosure of records from reporters Matt Apuzzo, Adam Goldman , Eric Lichtblau, and Michael Schmidt in the service of this particular investigation chills other confidential sources from speaking to reporters and undermines the constitutionally protected freedom of the press. Cf. United States v . Ahn , 231 F.3d 26, 37 (D.C. Cir. 2000) (recognizing a qualified First Amendment privilege in criminal proceedings and affirming the district court’s grant of the reporter's motion to quash )
Indeed, the Government's 2703 d) application is precisely the kind of circumstance that Justice Powell, inBranzburg v. Hayes, suggested would justify the grant of a motion to quash on the basis of the reporter's privilege. See Branzburg v. Hayes, 408 U.S. 665 , 709–10 ( 1972) (Powell, J., concurring ). Justice Powell noted that “ no harassment ofnewsmen will be tolerated ” and “ ifthe newsman ... has ... reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash .” Id. Unlike inBranzburg or in In re Miller, which both involved grand jury subpoenas , here there is no “ legitimate need of law enforcement. Id see In re Miller, 397 F.3d 964 (D.C. Cir. 2005 ) , superseded by 438 F.3d 1141 (D.C. Cir. 2006) . Whereas, in a typical leak investigation, the Government is searching for any clue as to who may have leaked the information , the Government in this case has known for years where to begin looking: Insofar as its investigation is into the source or sources for the April 2017 article discussing how Comey handled investigations related to the presidential candidates in the 2016 election, the Government could seek records from Comey himself regarding the investigations and with whom he shared information . Moreover, the years-long delay between the article's publication and the Government's attempt to seek the information undermines any argument that the Government need [ s ] ” the information . it Particularly in lightof theTrump Administration's history of antagonism toward the press , is difficult to see this Section 2703 d) order as anything more than “harassment of newsmen ” and an attempt to “ annex news media as an investigative arm of the government. Branzburg, 408 U.S. at 709 .
35 We notethatthe individualreporterswhoserecordsare at issuemayhaveotherobjectionsto disclosure. Since they have not been permitted to know about the Section 2703 d) order , nothing in this letter should be construed as a waiver of any of their rights . GIBSONDUNN
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TheCommon- Law Reporter'sPrivilegeAlso ProhibitsCompelledDisclosureof The Times'sRecords
The common- law reporter'sprivilegesimilarlyprotectsagainstthe compelleddisclosureof confidentialsources.
Although the D.C. Circuit not squarely addressed the issue, a reporter's privilege exists under the common law , see Jaffee v . Redmond, 518 U.S. 1 8 ( 1996) (“ [ ]he common law is not immutable but flexible , and by its own principles adapts itself to varying conditions. ( quoting Funk v . United States, 290 U.S. 371, 383 ( 1933)) , and shields against compelled disclosure of records by members of the news media. See In re Miller, 397 964 (D.C. Cir. 2005) ( Tatel, J., concurring in thejudgment) ( advocating for a common law privilege); In re Miller, 405 F.3d 17 (D.C. Cir. 2005 ) ( Tatel, J. concurring in the denial of rehearing en banc) ( same)
In determining whether to recognize an evidentiary privilege , courts look to whether the privilege serves important private and public interests ; whether those interests outweigh the benefits of compelling disclosure ; and whether a consensus on recognizing the privilege exists among the states . Jaffee, 518 U.S. at 10–13 .
First, a reporter's privilege unquestionably serves crucial public and private interests. ] he press, shielded by the First Amendment has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . In re Miller, 438 1141, 1163 (D.C. Cir. 2006) ( Tatel, J., concurring) (quoting Estes v. Texas, 381 U.S. 532, 539 ( 1965)). Journalists thus serve “ as a powerful antidote to any abuses of power by governmental officials, and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve .” Mills v. Alabama, 384 U.S. 214, 219 ( 1966) In order to fulfill this vital function , journalists must be able to rely on and protect confidential sources : “ A journalist's inability to protect the confidentiality of sources s/ he must use willjeopardize the journalist's ability to obtain information on a confidential basis . This inturn will seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public. ” Riley v. Chester, 612 F.2d 708 , 714 (3d Cir. 1979). Absent a privilege, allowing government officials to compel the disclosure of confidential sources can no doubt constitute a significant intrusion into and, certainly , a chilling effect upon the newsgathering and editorial processes . ” Maughan v . NL Indus., 524 F. Supp. 93 , 95 (D.D.C. 1981). The reporter's privilege is thus essential to preserving both a press that is free to investigate and report and a public that is well- informed on important issues . GIBSONDUNN
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Second , these important interests favoring a reporter's privilege outweigh any alleged evidentiary benefits from compelling reporters to disclose confidential sources . “Compelling a reporter to disclose the identity of a source may significantly interfere with reporter's news gathering ability ” because, “ [ u ]nless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to any confidential information to reporters.” Zerilli, 656 F.2d at 711–12 . As a result “much of the desirable evidence to which the government] seek[ s ] access unlikely to come into being. ” In re Miller, 438 F.3d at 1168 (Tatel, J., concurring) ( quoting Jaffee, 518 U.S. at 12). In addition, the Government does not need to rely on journalists to conduct its investigatory business : In most cases, it “ can learn what reporters know by replicating their investigative efforts, e.g., speaking to the same witnesses and examining the same documents ,” at 1174, and a journalist's disclosure “ is therefore very rarely essential a government inquiry, N.Y. Times Co. v. Gonzales, 459 F.3d 160, 183 (2d Cir. 2006) (Sack, J., dissenting) .
Third, the vast majority of states and the District of Columbia recognize a reporter's privilege, demonstrating a “ consensus among the States ” that “ indicates that reason and experience support recognition of the privilege. ” Jaffee, 518 U.S. at 13. Judge Tatel in In re Miller found undisputed evidence ” that forty -nine states plus the District of Columbia offer at least qualified protection to reporters sources . 438 F.3d at 1170. In thirty -one states and the District of Columbia, state legislatures have passed “ shield laws” granting these protections. N.Y. Times Co., 459 F.3d at 182 ( Sack, J., dissenting). D.C.'s law , for instance, prohibits any court from “ compel ling any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose . . . [ he source of any news or information procured by the person . D.C. Code Ann. The widespread nature of reporters' privileges at the state level indicates that such protection “ has not interfered with effective law enforcement.” N.Y. Times Co., 459 at 182 ( Sack, J., dissenting)
Applying a common law reporter's privilege to the facts at hand protects The New York Times against the unnecessary compelled disclosure of the information that the Government's 2703 (d) application seeks . “When a privilege is grounded in constitutional policy, a demonstrated , specific need for evidence must be shown before it can be overcome.” Riley, 612 F.2d at 716 ( quoting United States v. Nixon, 418 U.S. 683, 713 ( 1974)) . In a case involving leaks of confidential government information such as this one, the application of the privilege depends on the government's need for the information and exhaustion of alternative sources ,” the public interest in compelling disclosure , measured by the harm the leak caused ” and “ the public interest in newsgathering, measured by the leaked information's value.” In re Miller, 438 F.3d at 1175 ( Tatel, J. , concurring). This approach " prevent s] discovery when no public interest supports it and only allows law enforcement to override the privilege “ when the leaked information does more harm than good. ” Id. This GIBSONDUNN
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fact- specific balancingis particularlyimportantin leakcases such as this one: “ [ ] f leaks revealmistakesthat high-levelofficialswouldhave preferredto keep secret, the administrationmaypursuethe source withexcessivezeal, regardlessofthe leaked information’spublicvalue. ” Id. at 1176.
Under the particular circumstances of this case , the Government has no need to pursue information from The New York Times's journalists . “ All courts which have considered this issue have agreed that the federal common law privilege of news writers shall not be breached without a strong showing by those seeking to elicit the information that there is no other source for the information requested .” Riley, 612 F.2d at 716. Again, unlike the typical leak of confidential government information, which may be “ extremely difficult to prove without the reporter's , ” In re Miller, 438 F.3d at 1166 ( Tatel, J., concurring ), the Government has alternative means of gleaning information about the Comey-related leaks. James Comey testified to the Senate on live television that he directed his friend Daniel Richman to leak his memos to the press36. The Governmenthas two ample avenues through whichit canpursuethe evidence itmayneed — and, in fact, it has already investigated Director Comey in conjunctionwith the leaks.37 As a result, any informationthe Governmentmayneedcan readilybeobtainedthrough other sources, without breachingthe confidentialityofreporter-source relationships.
In addition, the public interest here strongly favors protecting the newsgathering activities of The New York Times. The information leaked in this case does not implicate highly
36 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence, S. Hrg. 115–99 (June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf ; see also Erik Ortiz & Dafna Linzer , Who Is Daniel Richman , the Columbia Professor Who Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM), https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leaked comey - s -private -n769846 ; Ken Dilanian at al., Comey Wrote Memo Saying Trump Urged Him to Drop Flynn Investigation : Sources, NBC News May 17, 2017 , 3:58 AM) https://www.nbcnews.com/news/us news / comey -wrote -memo - saying -trump -urged - him -drop -flynn -investigation -n760471; Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred , N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html .
37 Adam Goldman & KatieBenner, Justice Dept.Declinedto ProsecuteComey Over MemosAbout Trump, N.Y. Times ( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html; see also Off. of the InspectorGen., Dep’tof Justice, 18-04, A ReviewofVarious Actions by the Federal BureauofInvestigationand Department of Justicein Advance of the 2016 Election( 2018), https://www.justice.gov/file/1071991/download; Off of The InspectorGen., U.S. Dep’tof Justice, 19-02, ReportofInvestigationofFormer Federal BureauofInvestigationDirector James Comey’sDisclosureof SensitiveInvestigativeInformationand HandlingofCertainMemoranda (2019), https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf.
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sensitive matters of national security, like military strategies or the identities of undercover operatives. See In re Miller, 438 F.3d at 1173 ( Tatel, J., concurring ). The Department of Justice's Office of Inspector General, while concluding that Director Comey violated department and FBI policies through his leaks, did not identify any concrete harms that his disclosure caused to any government interests or ongoing investigations .38 And the lack of urgency associated with this investigation — which seemingly began years after the article was first published — belies the notion that the leak caused any real harm . The public interest in disclosure of the reporters now is thus quite limited. On the other hand, The New York Times's coverage of the leaked memos provided significant public value on topics of paramount importance: the conduct of the President of the United States and investigations into the two candidates in the 2016 presidential election.39 Stories like these, which shed light on the operation of government and the political process , serve weighty public interests, as there is “ practically universal agreement that a major purpose of [the First] Amendment [is] to protect the free discussion of governmental affairs.” Brown v. Hartlage, 456 U.S. 45, 52 ( 1982) .
The Government's Section 2703 (d) request an attempt to compel identification of reporters confidential sources — would chill the press's vital newsgathering role while providing limited public value in light of the availability of alternative channels of evidence . There is simply no basis to conclude that the records sought are indispensable to the investigation and could not be obtained elsewhere. Nor is there any public interest in disclosure sufficient to override the press’s interests in protecting information about its sources from government intrusion . Accordingly , the invasive and damaging order must give way to the reporter's privilege under both the First Amendment and the common law.
Conclusion
For all of these reasons , we respectfully request that the Government withdraw its Section 2703( d ) application, in addition to its non - disclosure request, as detailed in our March 16, 2021 letter.
38 See Off of The Inspector Gen., U.S. Dep’t of Justice, 19-02, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Investigative Information and Handling of Certain Memoranda (2019), at 60–61, https://www.oversight.gov/sites/default/files/oig reports /01902.pdf.
39 See MattApuzzoet al., Comey Triedto Shieldthe F.B.I.FromPolitics. Then HeShapedan Election, N.Y. Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html. GIBSONDUNN
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We look forward to discussingboththis request and our prior request to liftthe gag order with you and your colleagues. Please informus of position on these issues by Friday, April 2 as we intendto petition the Court for reliefshould we not reach an agreement.
Respectfully submitted,
Theodore J. BoutrousJr. AlexanderH. Southwell Gibson, Dunn& CrutcherLLP GIBSONDUNN 1050ConnecticutAvenue, Washington, DC 20036-5306 Tel 202.955.8500
www.gibsondunn.com
TheodoreJ. BoutrousJr. Direct: +1213.229.7804 Fax: +1213.229.6804 [email protected]
May 26, 2021
VIA ELECTRONIC MAIL
Tejpal Chawla Assistant United States Attorney U.S. Attorney's Office for the District of Columbia 555 4th Street NW Washington , DC 20530
Adam Small Trial Attorney U.S. Department of Justice 950 Pennsylvania Avenue NW Washington , DC 20530-00001
Re: In re 2703( d ) Order for Six New York Times EmailAccounts Serviced by Google LLC
Dear Counsel
We write on behalfof The New York Times Company to respectfully renew our prior requests that the Government withdraw its application for a Section 2703 (d ) order for records pertaining to six New York Times e-mail accounts, and seek to vacate the Section 2705(b) nondisclosure order pertaining to that application. Inrecent days, the highest levels of the executive branch — including President Biden himself have disavowed the Trump Department of Justice’s newly revealed efforts to records from the news media. Consistent with this public disavowal of such techniques , we hope and expect that the Government will reconsider its position, and we reiterate our intention to seek relief from the Court should the Government not do so in advance of theupcoming June 17, 2021 compliance deadline.
Reportingover the past few weeks has revealedmultipleinstancesof the Trump Administrationseizingjournalists' recordsor attemptingto unearththe identitiesofcritics andwhistleblowers activitiesthat the BidenAdministrationhasvociferouslycondemned. Notably, onMay 7, 2021 The WashingtonPost reportedthat threejournalistswere sent
1 See Jan. 5, 2021 Order, In re Application of USAfor 2703( d) Orderfor Six EmailAccounts Serviced by Google LLC for Investigation of Violation of [ Redacted] , No. 20-sc-3361, Dkt. 2 .
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letters, informing them that DOJ had sought and received toll records associated with their telephone numbers for over three months in 2017. That revelation led to an immediate outcry among news organizations and First Amendment advocates including the director of the Reporters Committee for Freedom of the Press , who stressed that DOJ's seizure of The records “ raises serious First Amendment concerns because it interferes with the free flow of information to the public .
Subsequentrevelations have amplified the criticismof DOJ'sactions. On May 17, 2021, a release of federal court records revealed that the Trump Justice Department had issued a subpoena to unmask the owner of @NunesAlt, a parody Twitter account that criticized Rep. DevinNunes, and had obtained a court order to keep the subpoena secret. , on May 20, 2021, CNN reported that prosecutors had also secretly sought and obtained the phone and e mailrecords of its Pentagon correspondent Barbara Starr, for a two month period in 2017.5 Itremains to be seen how many other, as -yet-unreported incidents there may be ofthe Trump Administration seeking evidence from reporters or news organizations.
The recent reporting about the Trump Department of Justice's surreptitious collection of journalists records not only led to a public outcry ; it also prompted questions about the current administration's stance toward such actions . Officials at the highest levels of the executive branch have unequivocally disavowed these investigative tactics and extolled the importance of the First Amendment . director of public affairs, Anthony Coley, told CNN that “ Department leadership will soon meet with reporters to hear their concerns about recent notices and further convey Attorney General Garland's staunch support of and
2 See DevlinBarrett, TrumpJustice Departmentsecretly obtainedPost reporters records, Wash. Post (May 7, 2021),https://www.washingtonpost.com/national-security/trump-justice-dept-seized-post reporters-phone-records/ 2021/ 05/07/ - - -c3b287e52a01_story.html.
3 See Adam Goldman, Justice Dept. Seized Washington Post's Records, N.Y. Times (May 7 , 2021), https://www.nytimes.com/2021/05/07/us/politics/justice-department-washington-post-phone-records.html ( quoting Bruce Brown, Executive Director of the Reporters Committee for Freedom of the Press ) .
4 See Katie Shepherd, Trump DOJtried to unmask a Twitter account behind mean tweets and badmemes that teased Rep . Devin Nunes, Wash. Post (May 18 , 2021) , https://www.washingtonpost.com/nation/2021/05/18/devin-nunes-twitter-doj .
5 See Jeremy Herb & Jessica Schneider , Trump administration secretly obtained CNN reporter's phone and email records, CNN (May 20, 2021), https://www.cnn.com/2021/05/20/politics/trump-secretly-obtained cnn reporter -records/ index.html.
6 We remainconcernedthat the DepartmentofJusticehassought NewYorkTimesrecordsandfailedto notifyus. On May 10, 2021, afterreadingaboutDOJobtainingWashingtonPostreporters records, we soughtconfirmationthat DOJhad not seizedphonerecordsofNewYorkTimes reporters, but have receivedno suchconfirmation. GIBSON DUNN
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commitment to a free and independent press. , when White House Press Secretary Jen Psaki was asked about the “ administration's view ofthe appropriateness ofseeking reporters phone records, ” she told reporters that “ this President is committed, strongly, to the rights of the freedom of press ...and to standing up for the rights ofjournalists, ” and reaffirmed the Biden Justice Department's inten[t] to meet with reporters to hear their concerns about recent notices."
President Biden himself has even seen fit to strongly weigh inon the issue. When asked whether the Government should seize reporters phone records and e-mails , he was emphatic : He told a reporter “Absolutely, positively , it's wrong. It's simply, simply wrong, and said in no uncertain terms that he “ will not let that happen . And rather than walk away from the implication that the Biden administration would not permit prosecutors to seize reporters phone and e-mail records , the White House Press Secretary told reporters that “ the President spoke clearly that he won't allow the abuse of power to intimidate journalists ” and “ thought it was right to speak out” quite publicly against the Trump Administration's abuse of “ the powers of the Department of Justice."
In short, the new Administration has publicly committed — at the highest levels— to reversing course on the Trump Administration's apparent practice of using the media to secretly investigate critics and whistleblowers . This Administration's seriousness about the issue is consistent with DOJ's News Media Guidelines which, as you know , require that decisions to obtain records from members of the news media be made at the highest levels— with the approval of the Attorney General himself. See 28 C.F.R. 50.10( ) . Pursuant to those Guidelines , and to this Administration's stated commitment to First Amendment values , there is no justification for continuing to pursue New York Times reporters records or continuing to impose a gag order .
7 Id.
8 Press Briefing by Press Secretary Jen Psaki, May , 2021, https://www.whitehouse.gov/briefing room / press-briefings / 2021/ 05 /21/press -briefing -by -press - secretary -jen -psaki -may-21-2021 id. (“ A ]gain , they are going to be meeting with journalists to hear their concerns. And certainly , we will continue to advocate for freedom of press, freedom of expression in the United States. . 9 CNN, President Biden : wrong’to seize reporters phone records, https://www.cnn.com/videos/politics/2021/05/21/biden-trump-doj-phone-email-records-collins-sot-ebof vpx.cnn;see Alexandra Jaffe, Biden won't allow Justice Dept. to seize reporters records,Assoc. Press (May 21, 2021), https://apnews.com/article/arts-and-entertainment-government-and-politics 27a0ab87662217be1989a2d5a7465610. 10 Press Briefing by Press Secretary Jen Psaki, May 24, 2021, https://www.whitehouse.gov/briefing room / press-briefings / 2021/ 05/24 / press-briefing-by -press -secretary - jen -psaki-may -24-2021/ GIBSON DUNN
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Accordingly , we respectfully reiterate the request in our March 26, 2021 letter that the Government withdraw its application for a 2703 (d) order for records pertaining to six New York Times e-mail accounts . We also reiterate the request in our March , 2021 letter that the Government withdraw its request for a Section 2705 (b ) order preventing disclosure of the existence or substance of its application and inform the Court that the order may be lifted . Finally, in keeping with DOJ's stated desire to listen to reporters ' concerns, we request a meeting with Department of Justice leadership to discuss the News Media Guidelines and their application here .
We look forwardto hearingback from you andwould appreciatea responseno later than Wednesday, June 2
Respectfullysubmitted,
TheodoreJ. BoutrousJr. AlexanderH. Southwell
Enclosed March 16, 2021 LetterfromT. Boutrous & A. Southwell March26, 2021 LetterfromT. Boutrous & A. Southwell Gibson, Dunn& CrutcherLLP GIBSONDUNN 1050 Connecticut Avenue , N.W. Washington , DC 20036-5306 Tel 202.955.8500 www.gibsondunn.com
TheodoreJ. BoutrousJr. Direct: +1213.229.7804 Fax: +1213.229.6804 [email protected]
March 16, 2021
VIA ELECTRONICMAIL
Tejpal Chawla Assistant United States Attorney U.S. Attorney's Office for the District of Columbia 555 4th Street NW Washington, DC20530
Adam Small Trial Attorney U.S. Department of Justice 950 Pennsylvania Avenue NW Washington , DC 20530-00001
Re: Application for 2703(d) Order for Six EmailAccounts Servicedby GoogleLLC
DearCounsel:
We representthe New York Times. Thank you for speaking earlier today.
As discussedonthe call, we do notbelieve there is a legitimatebasis for continued nondisclosureofthe Government'sabove- referenced applicationor the January 5 , 2021 Order directed to Google LLC. As you know , inDecember2020, the UnitedStates submittedan applicationpursuant to 18 U.S.C. (d) for anorder requiringGoogle to disclose records and other informationassociatedwith six e-mail accounts ofthe New York Times, which is an enterpriseclient of Google. Those accounts correspondto four current or formerNewYork Times reporters. The Governmentalso sought an order pursuantto 18 U.S.C. (b) preventingdisclosureofthe existenceor substance ofits applicationor the Court's order onthat application. OnJanuary 5 , 2021, MagistrateJudge Zia M.Faruqui granted both orders. Ingrantingnondisclosure, the Court reliedonthe Government's apparentrepresentationthat notification“ will seriouslyjeopardize the ongoinginvestigation, includingby givingtargets an opportunity to destroyor tamper with evidence.” See Jan. 5 , 2021 Order, InreApplicationofUSAfor 2703( d) Order forSix EmailAccounts Servicedby Google LLC forInvestigationofViolation of [Redacted] 20-sc -3361, Dkt 2 ( Order ). But any such representationmust have omittedthe relevant facts and context, whichcannot support ongoingnondisclosure. The Government'sapplicationappearsto relate to a well knownleak investigation an investigationthat has had intense media and public scrutiny
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for an extendedperiodoftime— such that no court examininga full andaccurate record could find a riskof seriousjeopardy to the investigationfrom disclosureofthe application. Accordingly, the order requiringnondisclosureis unjustifiedand unconstitutionalunderthe First Amendment. We thus respectfullyrequestthat you agree to withdraw the Government'snondisclosurerequest andpromptlyadvise the Court ofyour revisedposition on nondisclosure.
ApplicableLegalPrinciples
Courts uniformly have found that nondisclosure orders imposed under Section 2705 are both content-based restrictions on speech and prior restraints . See, e.g. , Matter of Search Warrant for redacted ] .com , 248 F. Supp. 3d 970, 980 (C.D. Cal . 2017 ) ( “ Courts considering the issue have almost uniformly found that Section 2705 (b ) NPOs [notice preclusion orders , or NPOs issued under analogous statutes, are prior restraints and / or content-based restrictions. “ G ] ag orders content-based because they effectively preclude speech on an entire topic — the ...underlying criminal investigation .” In re Sealing & Non Disclosure of Pen/Trap / 2703(d ) Orders, 562 F. Supp . 2d 876 , 881 ( S.D. Tex . 2008 ) . Such “ naked prohibition [ s] against disclosure [ are fairly characterized as a regulation of pure speech .” Bartnicki v . Vopper, 532 U.S. 514, 526 (2001 ). Orders prohibiting disclosure of Government electronic search and seizure applications are also paradigmatic prior restraints . See, e.g. , In re Sealing & Non - Disclosure of Pen/ Trap /2703(d ) Orders, 562 F. Supp. at 881 ; Microsoft Corp. v. U.S. Dep’t of Justice, 223 F. Supp. 3d 887 , 905 (W.D. Wash . 2017 ) .
Courts have also uniformly held that such prior restraints and content -based restrictions on pure speech are subject to the strictest form of First Amendment scrutiny and “ bear[] a heavy presumption against [their constitutional validity. ” Se Promotions, Ltd. v. Conrad, 420 U.S. 546 , 558 ( 1975) . As the Supreme Court has recognized “ prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass n Stuart, 427 U.S. 539, 559 ( 1976) ; see also, e.g., Alexander v . United States, 509 U.S. 544, 554 ( 1993) ( recognizing that the First Amendment “ provid [ es] greater protection from prior restraints than from subsequent punishments ”) . Under strict scrutiny, the Government must show that the prior restraint “ furthers a compelling interest and is narrowly tailored to achieve that interest. ” Reed v . Town of Gilbert, 576 U.S. 155, 171 (2015) .
Section 2705 (b) of the Stored Communications Act permits a governmental entity acting under Section 2703 to apply, in certain enumerated circumstances , for a protective order, prohibiting providers of electronic communications services from notifying others of their receipt of legal process. In particular, Section 2705 (b) provides that a court may enter such an order only if it determines that notification of the existence of the warrant, subpoena , or GIBSON DUNN
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court orderwould reasonablyresult in: “ ( 1) endangeringthe life or physicalsafety ofan individual; ( ) flight fromprosecution; (3) destructionofor tamperingwith evidence; (4) intimidationofpotentialwitnesses; or (5) otherwiseseriouslyjeopardizingan investigation or undulydelayinga trial. ” 18 U.S.C. 2705(b) .
There Is No Basis For Nondisclosure In These Circumstances
The uniquefacts andcircumstanceshere, whichwere likelynot fully providedto the Court, makeclearthatthe Governmentcannotsustainits heavyburdento justify ongoing nondisclosure.
While Section 2705 (b) is routinely invoked for gag orders , most of the statutory bases for nondisclosure are not implicated here . The Order was granted on the basis that there was purportedly “ reason to believe ” that disclosure would “ seriously jeopardize the ongoing investigation ,” which would giv [ e] targets an opportunity to destroy or tamper with evidence . ” Order at 1 (citing 18 U.S.C. (b) (3) , (b) (5)) . The Court did not find reason to believe disclosure presented a risk of harm to life or safety, of a flight from prosecution, or of intimidation of potential witnesses .
To be sure, whenever there is a criminal investigation , there is typically some chance that the investigation being made public could jeopardize that investigation. Indeed, there are likely many instances when the need to preserve secrecy around an ongoing investigation may constitute a compelling interest justifying a temporary nondisclosure order , as when the criminal conduct ongoing and there is a credible risk that disclosure would prompt tampering with easily-destroyed evidence or flight from prosecution . E.g., Matter of Subpoena 2018R00776 , 947 F.3d 148, 156 ( Cir. 2020 ); In re Search of Info. Associated With Specified E -Mail Accts ., 470 F. Supp . 3d 285, 291 (E.D.N.Y. 2019) (“Because the criminal conduct is ongoing , there is a danger that ifwitnesses and perpetrators learn of the Search Warrant, they will flee, alter or conceal their behavior, and destroy evidence . Secrecy of such an ongoing criminal investigation thus constitutes a compelling Government interest .
Eveninsuchinstances, courts haveseenfit to pushbackon the breadthofthe nondisclosureorders sought by the Government, inrecognitionofthe FirstAmendmentvalues at stake. For example, numerouscourts haverejectedindefinitegag orders as unconstitutional, imposingexpirationdates on sealingand non disclosureprovisions, see, e.g., In re Sealing& Non- Disclosure of Pen/ Trap/2703(d ) Orders, 562 F. Supp. 2d 876, 883 (S.D. Tex . 2008); In re Search WarrantIssuedto Google, Inc., 269 F. Supp. 3d 1205, 1216 (N.D.Ala. 2017); MatterofSearchWarrantfor redacted].com 248 F. Supp. 970, 983 (C.D. Cal . 2017), or simplydenyingapplicationsfor indefiniteorders, see, e.g., MatterofGrandJury Subpoenafor [Redacted] @ Yahoo.com, 79 F. Supp. 3d 1091, 1091(N.D. Cal. 2015). GIBSONDUNN
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Butunderthe specific and uniquecircumstancesof this case— where boththe obvioustargets ofthe investigationand the public at large have longknownabout the investigation's existence — there is no reasonto believethe investigationwill be seriouslycompromised, whichwas the onlypurportedbasis for nondisclosurehere.
The Order implicates the email accounts for four New York Times reporters Matt Apuzzo , Michael S. Schmidt, Adam Goldman, and Eric Lichtblau — between January 14, 2017, and April 30 , 2017. That time frame is a notable one in our recent political history and during that period, those four reporters co -wrote a widely -read article for The New York Times discussing how then -FBI director James Comey handled investigations related to the presidential candidates in the 2016 election (the “ Article ). Article’s sources included interviews with “ 30 current and former ” officials who “ discussed the investigations on the condition of anonymity because they were not authorized to speak to reporters.
It is patently clear that the Government's investigation is of the person or persons who were sources to The New York Times reporters whose records are sought by the Order. But the Government's interest in and investigation related such issues is publicly known and has been highly publicized . More than a year ago , multiple news outlets reported on the front page that “ [ ] enforcement officials are scrutinizing ” that very Article in an “ unusual ” investigation to determine who disclosed the allegedly classified information discussed therein .
2 MattApuzzoet al. , ComeyTriedto Shieldthe F.B.I.FromPolitics. ThenHeShapedan Election, N.Y. Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.
3 Id
4 The reportersactedentirely lawfully inreceivingand publishingthe information, however it was obtained. See, e.g., Smith v. DailyMailPublishingCo., 443 U.S. 97, 102 ( 1979) (“ S ]tate actionto punishthe publicationoftruthful informationseldomcan satisfy constitutionalstandards. ; Bartnickiv . Vopper, 532 U.S. 514, 535 (holdingthat even “ illegal conduct by the source that obtainedthe information“ does not suffice to removethe FirstAmendmentshieldfrom speechabout a matter ofpublic concern” ) . Further, the nondisclosureorder abridgesThe New York Times and its reporters legitimate First and Fourth Amendmentinterests, as it preventsthe attorneys coveredunder the order from conferringwith the reporterswhose recordsare being sought about, inter alia, the relevanceof the requested records, any confidential sources that may be disclosedby the records, and privacyinterests implicatedby disclosure. 5 Adam Goldman, Justice Dept.InvestigatingYears - OldLeaks andAppears Focusedon Comey, N.Y. Times ( Jan. 16, 2020), https://www.nytimes.com/2020/01/16/us/politics/leak-investigation-james-comey.html; see also, e.g., Matt Zapotosky,Federalprosecutors exploreyears-oldmedia disclosure, raisingfears Trump is using Justice Dept. for politicalgain, Wash. Post (Jan. 17, 2020), https://www.washingtonpost.com/national-security/federal-prosecutors-explore-years-old-media disclosure-raising -fears - trump-is-using-justice -dept- for -political- gain /2020 / 01/ 16 /6bc56b68-38c2-11ea bb7b-265f4554af6d_story.html; Alison Durkee, The DOJIs InvestigatingJames Comey Over Years Old ( nextpage) GIBSON DUNN
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Any target of the investigation has therefore known about it for over a year . As such, there is no reasonable basis to believe the investigation would be seriously jeopardized by the fact of the Government's application being known. Nor is there any risk that the information the Government seeks would be destroyed or tampered with, since the Government seeks electronic evidence that, to our knowledge, has been preserved by The New York Times ' service provider, and anyone who might be a target of the investigation has no control over or access to such electronic evidence . The Government thus does not have a compelling interest in nondisclosure of its application and related investigation and a gag order is unsupportable. See In re Grand Jury Subpoena Issued to Twitter, 2017 WL , at * 6 (holding that a gag order was notjustified where the investigation was already public, noting that a mere “ interest in grand jury secrecy does not, without more, provide a statutory basis for a nondisclosure order under Section 2705 (b ) ), report and recommendation adopted, 2017 WL 9287147 (N.D. Tex. Oct. 19, 2017) .
Even ifthe investigation to which the Government's 2703 (d) application pertains is in some way different from the investigation revealed in the January 2020 reporting, years of intense media attention have long put any potential suspect on notice that a criminal investigation was likely. Nearly 20 million people watching on live television heard Director Comey tell a Senate committee a few months after the Article published that he directed a friend to give a memo to the press .? The Department of Justice looked into whether Director Comey directed his friend to turn over the contents of a memo detailing Director Comey’s interactions with President Trump to The New York Times , but ultimately declined to
Leaks,Vanity Fair (Jan. 16, 2020), https://www.vanityfair.com/news/2020/01/james-comey-doj investigation-leaks 6 Lisa Richwine,About 19.5million U.S. viewers watchedComey testify about Trump, Reuters (June 9, 2017),https://www.reuters.com/article/us-usa-trump-russia-ratings/about-19-5-million-u-s-viewers watched -comey-testify-about-trump- idUSKBN1902X6. 7 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence , S. Hrg. 115–99 ( June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf; see Erik Ortiz and Dafna Linzer, Who Is Daniel Richman, the Columbia Professor Who Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM), https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leaked comey -s -private-n769846 ; Ken Dilanian, Dafna Linzer, and Alex Johnson, Comey Wrote Memo Saying Trump Urged Him to Drop Flynn Investigation : Sources, NBC News (May 17, 2017 , 3:58 AM ), https://www.nbcnews.com/news/us-news/comey-wrote-memo-saying-trump-urged-him-drop-flynn investigation -n760471; Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred, N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comey firing.html
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prosecute Director Comey. The Department of Justice's inspector general, moreover, conducted two highly publicized investigations of Director Comey’s actions that resulted in public reports and foretold further investigations . The first report detailed the decisions described inthe Article related to the 2016 election, warning that “ a culture of unauthorized media contacts” permeated the FBI and recommended that the FBI consider whether disciplinary provisions and penalties are sufficient to deter such improper conduct. The second report, while noting that the DOJ decided not to prosecute Director Comey, concluded that disclosing the memo “ set a dangerous example for personnel who the FBI “ depends on ... not to disclose sensitive information.
Moreover, the then -Presidentexplicitlyand quite publiclycalledfor a criminalinvestigation as he repeatedlycriticizedDirectorComey, tweetingthat he shouldbe prosecuted” becausehe violatedthe EspionageAct . And then-AttorneyGeneralJeffSessionshad publiclyannouncedin 2017 that the administrationhad “ tripledthe numberofactiveleak investigations andwarnedthat “ criminals” who disclosesensitiveinformation“ are, in fact, beinginvestigatedand prosecuted
8 AdamGoldman& KatieBenner, JusticeDept.Declinedto ProsecuteComey OverMemosAboutTrump, N.Y.Times( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html.
9 Off. of The InspectorGen., U.S. Dep’tof Justice, 18-04, A ReviewofVarious Actions by the Federal BureauofInvestigationand Departmentof Justice in Advance of the 2016 Election(2018) at 430, 500, https://oig.justice.gov/news/doj-oig-releases-report-various-actions-federal-bureau-investigation-and department-justice.
10 Off of The Inspector Gen. , U.S. Dep’t of Justice , 19-02, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda (2019 ) , at 60, https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf .
11 DonaldTrump @realDonaldTrump), Twitter ( April 13, 2018) , https://twitter.com/realDonaldTrump/status/984763579210633216 [ https://web.archive.org/web/20180619011759/https://twitter.com/realDonaldTrump/status/984763579210 633216
12 DonaldTrump ( @realDonaldTrump), Twitter, (Aug. 31, 2019) , https://twitter.com/realdonaldtrump/status/1167771834059755520 [ https://web.archive.org/web/20190831143616/https://twitter.com/realdonaldtrump/status/1167771834059 755520 13 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaks of Classified Materials Threatening National Security (Aug. , 2017), https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-delivers-remarks-briefing-leaks-classified materials see generally Ken Klippenstein, Trump Administration Referred a Record Number of Leaksfor Criminal Investigation, The Intercept (Mar. 2, 2021, 6:51 PM), https://theintercept.com/2021/03/02/trump leaks-criminal-investigation
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Inshort, anypotentialtarget indeed, the entirepublic hasknownfor years, from congressionalinquiries, agencyprobes, intensemediacoverage, and former President Trump's own words, ofthe existenceand threat ofcriminalinvestigationsrelatedto alleged leaks. Thus, on the specificfacts relevantto the investigationhere, the Governmentcannot meetits burdenofshowingthat disclosureof the instantapplicationwould seriously jeopardizeits investigation, as it mustunder the relevantstatuteand the FirstAmendment.
Conclusion
Whilewe recognizethat the Courtmade the requisitestatutoryfindings, we submitthe Government'sapplicationlikelydidnot providethe Courtwith the full andnecessary context as laid out hereinand that, inlightofthese facts, there is no reasonablebasis to believedisclosurewould seriouslyjeopardizethe investigation. Forall ofthese reasons, nondisclosureofthe existenceand substanceofthe Government's2703 d) applicationand the order grantingthat applicationis entirely unjustified. The law and interests of justice mandatethat the nondisclosureorderbe withdrawn.
Please confirm by 12pm ET on Friday, March 19 that the Government will withdraw its request for the nondisclosure order in this matter. As discussed, we would appreciate the opportunity to meet with you and any appropriate supervisors within your respective offices to discuss this further.
Thank you for your consideration .
Respectfullysubmitted,
Theodore J. Boutrous Jr. AlexanderH. Southwell
14 Openness regarding Section 2703 orders and applications enhances the basic fairness” of the criminal system and “ the appearance of fairness so essential to public confidence in the system .” Press -Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 ( 1984) ; see also Inre Sealing & Non- Disclosure of Pen/ Trap / 2703( ) Orders, 562 F. Supp. 2d at 891 ( recognizingthat “ documentsauthored or generatedby the court itselfin discharging its public duties,” such as Section 2703 d) orders, are “ [ i ]n the top drawer of judicial records” and “ hardly ever closed to the public ) ; Mills v . Alabama, 384 U.S. 213 , 219 ( 1966) ( recognizingthat the First Amendment interests in free and informed“ discussionof governmental affairs” are paramount) Gibson, Dunn& CrutcherLLP GIBSON DUNN 1050ConnecticutAvenue N.W. Washington, DC 20036-5306 Tel 202.955.8500
www.gibsondunn.com
TheodoreJ. BoutrousJr. Direct: +1213.229.7804 Fax: +1213.229.6804 [email protected]
March 26 ,
VIA ELECTRONICMAIL
Tejpal Chawla Assistant United States Attorney U.S. Attorney's Office for the District of Columbia 555 4th Street NW Washington, DC 20530
Adam Small Trial Attorney U.S. Department of Justice 950 Pennsylvania Avenue NW Washington , DC 20530-00001
Re : In re 2703 ( d ) Order for Six New York Times EmailAccounts Serviced by Google LLC
DearCounsel
We write as counsel to The New York Times Company to respectfully request that the Government withdraw its application for a 2703(d) order for six New York Times e -mail accounts . See Jan. 5 , 2021 Order , In re Application of USA for 2703 (d ) Order for Six Email Accounts Serviced by Google LLC for Investigation of Violation of [ Redacted ], No. 20 -sc 3361, Dkt. 2 ( Order .
As you know , on March 16, 2021, we wrote to object to the nondisclosure order , which we believe is improper under both 18 U.S.C. (b ) and the First Amendment. The nondisclosure order is initself an impermissible restraint on the press's freedom to discuss and report on an issue of significant public concern . But it also represents an attempt to shroud in secrecy a more significant problem with the underlying Section 2703 d) application and order . That order is both legally improper and contrary to this Administration's stated positions on the News Media Guidelines and the constitutional guarantee of a free and independent press . Using the press as an arm of an investigation runs rough-shod over the First Amendment and flouts the reporter's privilege and the Department of Justice's own guidelines .
Beijing Brussels Century City Denver Frankfurt Kong London Los Angeles
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As nominee for his current position , Attorney General Merrick Garland testified that he is “ deeply committed” to the News Media Guidelines . As a D.C. Circuit judge , he reminded his colleagues that, unless the reporter's privilege is vigorously protected , confidential sources will be reluctant to disclose any confidential information to reporters ” —a result, he cautioned , that would “ undermine the Founders intention to protect the press.” Lee v. Dep't of Justice , 428 F.3d 299 , 303 (D.C. Cir. 2004) (Garland, J., dissenting) ( citations omitted ). In keeping with these important principles , we urge the Department to reconsider and withdraw its Section 2703 d) application .
Background
The investigation and Section 2703 d ) order at issue here sit at the intersection of two frequent targets of former President Trump: former FBIDirector James Comey and the media
Former President Trump has long harbored animosity toward Director Comey. A few days after Comey refused to tell Congress whether Trump or members of his campaign were under criminal investigation for possible collusion with Russia, Trump fired him . And when Trump suggested he had tape recordings of his conversations with Comey , Comey leaked a memo to the press that sparked the special counsel's investigation2 and, it seems , this leak investigation as well.3 Trump's vendetta against Comey grew even further from there . When reports emerged that the FBI had opened an investigation into whether Trump was a Russian agent, Trump lashed out, tweeting that Comey and others had “ tried to do a number on your President and that he was a liar “caught in the act. ” Over the years , Trump
1 Eric Tucker, The Comeyfiring,as retoldby the Mueller report, Associated Press (Apr. 23, 2019), https://apnews.com/article/4fflecb621884a728b25e62661257ef0. 2 Open Hearingwith Former FBIDirector James ComeyBefore S. Comm. On Intelligence, S. Hrg. 115–99 (June 8, 2017), at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf. 3 Matt Zapotosky, Federal prosecutors explore years old media disclosure , raisingfears Trump is using Justice Dept. for politicalgain, Wash . Post (Jan. 16, 2020) https://www.washingtonpost.com/national security / federal -prosecutors -explore -years -old -media -disclosure -raising -fears - trump -is -using -justice -dept for -political -gain /2020 / 01/ 16 / 6bc56b68-38c2-11ea 265f4554af6d_story.html.
4 Richard Gonzales & Sasha Ingber, Trump Lashes Out At FBIAfter NY Times ' Reported On Inquiry Into His Intentions, Public Radio (Jan. 11, 2019 10:40 PM), https://www.npr.org/2019/01/11/684737549/white-house-denounces-ny-times-report-on-fbi-investigation of-trump -russia - s.
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not only lobbed insults at Comey calling him, among other things, a “ DIRTY COP” " crazy a real nut job also threatened him with imprisonment and suggested he committed treason. Indeed, former officials told The Washington Post that they worried that this very investigation's purpose was to “ dredg [ e ] up old allegations of wrongdoing to help Trump go after” Comey. Insofar as this investigation is tied up with Trump's campaign of retaliation against Comey, it was improper from the start and, certainly , ought no longer to be pursued now that Trump is no longer in office and the Department of Justice has new leadership .
The investigationalso appears to be another salvo in former PresidentTrump’s war on the press. Indeed, former officials have said his hatred of the media” fueled this very investigation. 10 In his first two years in office, eleven percentofTrump's thousands of tweets “ insulted or criticizedjournalists and outlets, or condemnedand denigrated the news media as a whole. He told CBS News that he did so to “ discredit and demean” the
5 DonaldTrump ( @realDonaldTrump), Twitter(Apr. 30, 2020) , https://web.archive.org/web/20200501095446/https://twitter.com/realdonaldtrump/status/12558321175834 95169
6 Matt Apuzzo, Maggie Haberman, and Matthew Rosenberg, Trump Told Russians That Firing Job Comey EasedPressure From Investigation, N.Y. Times (May 19, 2017) , https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html.
7 Donald Trump ( @realDonaldTrump), Twitter (Dec. 15 , 2019) , https://twitter.com/realDonaldTrump/status/1206281389991219200 , [ https://web.archive.org/web/20200111121930/https://twitter.com/realDonaldTrump/status/120628138999 1219200
8 DylanStableford, Trump calls treason’on Comey, McCabe and a number of people', Yahoo (May 23 , 2019) , https://news.yahoo.com/trump-comey-mc-cabe-strzok-page-guilty-of-treason-214458786.html.
9 Matt Zapotosky , Federal prosecutors explore years old media disclosure , raisingfears Trump is using Justice Dept. for politicalgain, Wash . Post ( Jan. 16, 2020 ), https://www.washingtonpost.com/national security / federal-prosecutors -explore -years -old -media - disclosure -raising - fears -trump -is -using - for -political-gain / 2020 /01/ 16 /6bc56b68-38c2-1 bb7b -265f4554af6d_story.html .
10 Matt Zapotosky, Federalprosecutors exploreyears -oldmedia disclosure,raisingfears Trump is using Justice Dept. for politicalgain, Wash. Post ( Jan. 16, 2020), https://www.washingtonpost.com/national security / federal-prosecutors-explore-years-old-media-disclosure -raising-fears -trump - is-using-justice -dept for- political-gain / 2020 /01/ 16 /6bc56b68-38c2-11ea-bb7b -265f4554af6d_story.html.
11 Stephanie Sugars, Fromfake news to enemy of thepeople:An anatomy ofTrump's tweets,Committee to Protect Journalists (Jan. 30, 2019 10:00 AM), https://cpj.org/2019/01/trump-twitter-press-fake-news enemy-people
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media. He has directed particular ire at The New York Times and The Washington Post, whose stories are at the heart of this investigation calling them “ two of the most dishonest media outlets around. Truly, the Enemy of the People ! And these attacks were not merely rhetorical : his re-election campaign filed libel lawsuits against both The Times and The Post, while his administration “ stepped up prosecutions of news sources , interfered in the business of media owners , [ and] harassed journalists crossing U.S. borders.
In short, this investigation appears to be inextricably intertwined with former President Trump's personal grievances against Director Comey and The New York Times . Since the investigation launched, President Biden has taken office, touting his “ commitment to reaffirming the Department of Justice as a pillar of independence and integrity ” and to ensuring that it functions as the American lawyer's not the President's law firm . In keeping with that commitment , the Department should withdraw the 2703 (d) application , which is contrary to the Department of Justice's own News Media Guidelines and Enterprise Data Guidelines , as well as to the protections of the reporter's privilege under both the First Amendment and the common law.
The Section 2703 ( d ) Order Contravenes the NewsMedia Guidelines
own guidelines for seeking information from the news media in criminal investigations (the News Media Guidelines) prohibit the Government from doing exactly what it has tried to do here — unjustifiably conscript the press into serving as an investigative arm ofthe Government.
12 Lesley Stahl: Trump admitted mission to “discredit press, CBS News (May 23, 2018 5:39 AM) , https://www.cbsnews.com/news/lesley-stahl-donald-trump-said-attacking-press-to-discredit-negative stories /
13 Donald Trump ( @realDonaldTrump , Twitter ( Apr. 19, 2020 ) , https://web.archive.org/web/20190421100338/https://twitter.com/realdonaldtrump/status/11193507500967 85409
14 See Complaint, DonaldJ. Trump for President, Inc. v . TheNew York Times Co., No. 152099/2020( Cnty. Supreme Ct. Feb. 26, 2020) ; Complaint, DonaldJ. Trump for President, Inc. v . WP Co. LLC, No. 1: 20 -cv - 00626 -KBJ (D.D.C. Mar. 3 , 2020) . The New York Times action has since been dismissed. See also DonaldJ. Trump for President, Inc.v . The New York Times Co., 2021WL 938979, at * 1-2 (N.Y. . Sup. Ct. Mar. 9, 2021) .
15 The TrumpAdministrationandthe Media, Committeeto ProtectJournalists( April 16, 2020) , https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/.
16 Biden vows to restore faith in U.S. law with Justice Dept nominees, Reuters ( Jan. 7, 2021), https://www.reuters.com/article/us-usa-biden-attorney-general/biden-vows-to-restore-faith-in-u-s-law-with justice-dept- nominees-idUSKBN29C1FY.
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The News Media Guidelines were introduced by the Department of Justice — and codified into federal regulations nearly fifty years ago , in response to concerns about the growing number of subpoenas to compel journalists to divulge confidential sources . Recognizing the important principle that the freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, ” the guidelines serve as an important bulwark against law enforcement encroachments on that freedom , by allowing prosecutors to seek information from the media only when doing so is “ essential ” and all other avenues have been exhausted . 28 C.F.R. 50.10 a )(1), ( )(4)(ii)(A ) .
Significantly, the News Media Guidelines were strengthened in 2015 in response to two highly controversial incidents that, like this one, exploited the press in service of leak investigations first, subpoena of phone records belonging to the Associated Press, in connection with its investigation of leaked information regarding a Yemeni terrorist plot, 19 and second, DOJ's seizure of the contents of an email account belonging to Fox News reporter James Rosen, as part of an investigation into leaked information about North Korean missile tests.20 One of the key changes introduced in 2015 was to extend the News Media Guidelines to Section 2703 (d) orders , such that applications for such orders require the approval of the Attorney General , are subject to a presumption of notice, and can be made only upon a showing “ that the information sought is essential to a successful investigation , that other reasonable alternative investigative steps to obtain the information have been exhausted, and that the request has been narrowly tailored to obtain only the information
17 Although the Guidelines do not create substantive or procedural rights, see 28 C.F.R. 50.10( ), they nonetheless represent the stated policies and practices” of the Department regarding use of law enforcement tools to obtain records from the news media, see Dep’t of Justice, Report on Review of News Media Policies, at 1 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news media.pdf, and the Department has emphasized the need “ to ensure consistent ...application of the policy,” Gen. Eric Holder, Memorandum to all Department Employees on Updated Policy Regarding Obtaining Information from , or Records of, Members ofthe News Media; and Regarding Questioning, Arresting, or Charging Member[ s ] of the News Media, at 1 ( Jan. 14, 2015 ), https://fas.org/sgp/othergov/doj-media-rev.pdf. It sets a dangerous precedent for the Department to simply ignore settled and carefully crafted DOJ policies when convenient.
18 Josh Gerstein, Holder broadens protectionsfor media, Politico (Jan. 14, 2015 3:04 PM), https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071.
19 Ewen MacAskill, Eric Holder Defends AP Seizure Citing Major Security Threat to Public, The Guardian (May 15 , 2013), https://www.theguardian.com/world/2013/may/14/ap-phone-records-subpoena-holder
20 N.Y. Times Editorial Board, Another Chilling Leak Investigation , N.Y. Times (May 21 , 2013), http://www.nytimes.com/2013/05/22/opinion/another-chilling-leak-investigation.html.
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necessary for the investigation . 21 The guidelines remained intact throughout the Trump Administration , even after a review by then - Attorney General Jeff Sessions in 2017.22
Inseekingthe Section2703(d) order at issue, the Governmentappears to have ignored virtuallyevery aspect ofthe guidelines.23 Eachviolationdetailedbelow shows the improprietyofthe order and, collectively, they paint a telling and disconcertingpictureofthe Department'smotivesininitiallypursuingthe order.
First, News Media Guidelines are meant to prevent news organizations from being surprised by subpoenas , 2703 d orders, or search warrants- -as The Times was here — by requiring prosecutors to notify journalists first. 24 That notice requirement is a critical safeguard , guaranteeing that journalists — who rely on promises of confidentiality to encourage sources to come forward with newsworthy information — know if and when the Government is scrutinizing their communications or records , and are able to potentially petition the court for relief, as appropriate . The guidelines prohibit prosecutors from seeking a 2703 ( d) order until after they have “ pursued negotiations with the affected member of the news media. ” 28 C.F.R. 50.10( (5)(iv) (A ) ; see also 50.10 a )( 3 )-( 4 ). Rather than abide by that policy, DOJ inexplicably did not notify or engage with The New York Times about the information DOJ was interested in; indeed, The New York Times found out about the order only after its issuance and after its service provider fought to notify a designated individual at The Times, Deputy General Counsel David McCraw .
To be sure, the News Media Guidelines permit prosecutors to forgo negotiation ifthere are “compelling reasons, ” such as if“negotiations would pose a clear and substantial threat to the integrity ofthe investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” 28 C.F.R. ( )( 5 ) (iv)( A ); see also 50.10 a) (3 ) ( ) . There is no serious assertion that there is a risk ofdeath or harm to individuals or national security here. Theoretically, the Government has an interest in keeping its investigation secret, but the public knowledge about the investigation makes it plainthat
21 Dep’t of Justice, Report on Review ofNewsMedia Policies, at 3 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news-media.pdf; see 28 C.F.R. 50.10 (2015 )
22 Josh Gerstein& MadelineConway, Sessions: DOJreviewingpolicieson mediasubpoenas, Politico( Aug. 4,2017 1:45 PM), https://www.politico.com/story/2017/08/04/doj-reviewing-policies-on-media subpoenas -sessions -says -241329 .
23 We canonly assumethat, at a minimum, the Departmentfollowedthe guidelines' basicrequirementto obtain the authorization of the Attorney General or Acting Attorney General in place at the time.
24 Josh Gerstein, Holder broadens protections formedia , Politico (Jan. 14, 2015 3:04 PM), https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071 . GIBSONDUNN
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negotiation with The New York Times would not have led to a “ clear and substantial threat
to the integrity of the investigation ,” which is the regulatory requirement . The target of the investigation is not The New York Times nor any of its journalists , and the e-mail records for the four journalists implicated by the order are all electronic records that are fully preserved (which prosecutors would have learned had they engaged with The Times directly ). There is no basis to conclude that The Times would undermine the investigation . Indeed, The New York Times routinely works cooperatively with law enforcement and prosecutors , for example to authenticate published articles and photographs for evidentiary purposes , and regularly negotiates in confidence over DOJ requests for assistance , including in the prosecution of attorney Greg Craig, in a leak investigation arising from the securities investigation of Billy Walters , and in the FBI investigation of the attack on a Times journalist inside the Capitol on January 6. Moreover , if any “ compelling reasons ” not to notify The Times existed in January when the court issued the order to prevent notification , they seem to have quickly evaporated : By March , prosecutors acquiesced and permitted Google to notify The Times of the order . Plainly, there was never any compelling reason not to contact The Times first
Second, the News Media Guidelines expressly guard against requests that implicate confidential sources . Indeed, the guidelines is among other things, to “ protect confidential news media sources .” 28 C.F.R. 50.10 ( )(3 )(ii) ( emphasis added). This Section 2703(d) order, by contrast, is improperly designed purely to ferret out such confidential sources . Critically, compliance with the order could reveal not only the identity of the purported leaker or leakers who are presumably the target of the investigation, also the identities of other confidential sources with no connection to the activity under investigation. The order therefore undermines the trust that confidential sources place in reporters and jeopardizes the free flow of truthful information about government activities, in stark defiance of the requirement that “ [ r] equests ...be treated with care to avoid interference with newsgathering activities .... 50.10 ( ) 5 )(vii) .
Third, the News Media Guidelines place narrow limits on what information may properly be sought from the press. Inparticular, the guidelines provide that requests for information from the news media “ generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information . ” Id. 50.10( )( )( iv) . The guidelines also underscore that requests always “ should be narrowly drawn,” should avoid requiring production of a large volume of material,” and should not be used to obtain peripheral, nonessential , or speculative ” information . Id. (c)(4)(ii)(A) (viii) . Plainly, this Section 2703 (d) order for all non content records and other information relating to six New York Times e-mail addresses , including “ [ i ]information about each electronic communication sent or received by the Account( s) ” over the course of many months, goes well beyond these limits. See Order, GIBSONDUNN
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AttachmentA , at 2 ( emphasisadded). The breadthofthe Section2703(d) order, which goes wellbeyondpublishedinformationand strikes at the most sensitiveinformationin the custodyofthe newsmedia — the identitiesof confidentialsources— makes a mockeryofthe guidelines.
Fourth, the News Media Guidelines make clear that using law enforcement tools, including Section 2703 d) orders, to seek records from the news media should be considered an extraordinary measure [ ], not [ a] standard investigatory practice[ ] ” id 50.10 a ) ( 3) reserved only for when the information sought is “ essential ” to the investigation and the Government has “made all reasonable attempts to obtain the information from alternative, non-media sources, 50.10( )(4) ii)(A ), (iii). Here, however, there are plentiful alternative sources. As discussed inour March 16, 2021 letter, the investigation plainly relates to an article about how former FBI director James Comey handled investigations related to the presidential candidates in the 2016 election; Comey himself therefore represents at least one “ alternative, non-media source ” of information about who knew about the investigations and may have spoken to reporters. Moreover, all of the individuals Comey interacted with in the relevant time period, who are likely well known to the Government given Comey’s prominent role and security requirements , are additional alternative sources . And further alternative sources are all of the electronic communication repositories of Comey and the non media individuals he communicated with. A Section 2703( d) order for multiple New York Times email accounts is therefore hardly “ essential” to this investigation. 28 C.F.R. 50.10( )(4)(ii) (A ) .
In short, by seeking to gather journalists' information as a first resort, not a last resort; by refusing to negotiate directly and openly with The New York Times over the scope of the request ; and by jeopardizing the constitutionally protected flow of information from confidential sources to reporters, the Section 2703 (d) application at issue shows disdain for the News Media Guidelines . It also flies in the face of the Biden Administration’s paeans to the importance of “ a free and independent press ” and commitment to “ sharing accurate information with the American people. 25
In fact, as noted, at his confirmationhearingjust weeks ago, Attorney General Garland testified that he is “ deeply committed” to the News Media Guidelines and “ would expect to
25 Annie Karni, Jen Psaki'sDebut: No Attacks, No Lectures, No Crowd Size Fixation, N.Y. Times ( Jan. 20, 2021) , https://www.nytimes.com/2021/01/20/us/politics/jen-psaki-press-secretary.html; see also, e.g., Kamala Harris ( @KamalaHarris , Twitter ( Jul. 2, 2017) , https://twitter.com/kamalaharris/status/881622505840103424?lang=en ( “ The First Amendment & freedom of the press are critical to our democracy. ” ).
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re- up them.26 The Department should make good on that commitment by withdrawing its application for the Section 2703 d) order .
TheSection 2703 ( d ) Application Contravenes the Enterprise Data Guidelines
In addition to the multiple violations of the News Media Guidelines , seeking the order also violated separate DOJ guidelines on seeking enterprise data ( the Enterprise Data Guidelines ) that similarly prohibit the Department from engaging in an end -run around The New York Times.27 The failure to abide by the Enterprise Data Guidelines yet again illustrates why the 2703 (d) application is improper and must be withdrawn .
DOJ's guidelines for requesting enterprise customer data held by cloud service providers direct that law enforcement should seek data directly from the enterprise ” this case, the news media — whose records are being sought, rather than surreptitiously attempting to dodge the First and Fourth Amendment issues, as it did here.29 Notably the Enterprise Data Guidelines expressly advise prosecutors to go directly to the enterprise rather than to the cloud-storage provider when seeking information from the email accounts for a group of employees precisely what the Section 2703 (d) application seeks.30 The Enterprise Data Guidelines also recommend going directly to the enterprise's general counsel in such a circumstance. Only ifprosecutors have “ no choice but to seek disclosure directly from the provider ” —such as when the “ enterprise is essentially devoted to criminal activity” or where there are practical obstacles such as when “ the enterprise's is not capable of isolating and disclosing the necessary information ” or when law enforcement is “ unable to find a trustworthy point of contact the enterprise ” —should they bypass the enterprise.31
None ofthose exceptions applies, and prosecutors hadplenty of other choices here. They could have gone directly to The Times's general counsel ( whose contact information is
26 AttorneyGeneralConfirmationHearing, Day 1 , C - SPAN, at 1:35:35to 1:36:20(Feb.22, 2021) , https://www.c-span.org/video/?508877-1/attorney-general-confirmation-hearing-day-1.
27 SeekingEnterprise CustomerData Heldby CloudService Providers, U.S. Dep’t of Justice Dec. 2017 , https://www.justice.gov/criminal-ccips/file/1017511/download. 28 Like the NewsMediaGuidelines, the EnterpriseDataGuidelinesdo not create a cause ofaction. But the very fact that the Department failed to abide by both sets of guidelines is revelatory of the Department's reluctance to openly and directly seek records belongingto the news media— an act that, as it is well aware, raises grave FirstAmendment concerns.
29 Enterprise Data Guidelines, at 1 .
30 Id at 2 .
31 Id at 2–3.
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readily available ) rather than waiting for Google to force them to do so . And none of the circumstances that the Enterprise Data Guidelines suggest might warrant bypassing the enterprise are present here. The Times is not, for example, “ an enterprise ...essentially devoted to criminal activity target of the investigation.32 did prosecutors have any concern that The Times would destroy evidence , as demonstrated by the fact that they have not sent a formal 2703( f) preservation request to The Times or, as we understand , to Google . All e-mail records at issue have been preserved, which, again, the Government would have learned, had it notified and negotiated directly with The Times . There also was not a risk of jeopardizing the investigation because, as explained in our March 16, 2021 letter, this investigation was already public and anyone who might be a target of the investigation has no access to the data sought. 34
The First Amendment Prohibits Compelled Disclosure of The Times's Records
The Department's failure to seek records directly from The New York Times , as required under the News Media Guidelines and Enterprise Data Guidelines , is telling. Evidently , the Department knows that turning reporters into pawns in a leak investigation violates the First Amendment the attempt to cut out The New York Times and to shroud the operation in secrecy when seeking the order . But the Department cannot simply avoid reckoning with the First Amendment problems associated with compelled disclosure of news media records implicating confidential sources .
Then-Judge Garland's statements on the importance of the reporter's privilege are instructive. Dissenting from the denial of rehearing en banc in Lee v . Department of Justice , Judge Garland recognized that issuing subpoenas to reporters to gather information in connection with a leak investigation raised serious First Amendment concerns, and reminded his colleagues to “ be mindful of the preferred position of the First Amendment and the importance of a vigorous press. ” 428 F.3d 299, 303 (D.C. Cir. 2004 ) (Garland , J. , dissenting from the denial of rehearing en banc) (quoting Zerilli v. Smith, 656 F.2d 705 , 712 (D.C. Cir. 1981)). He wrote :
“ [ ] the [ reporter's privilege does not prevail in all but the most exceptional cases , its value will be substantially diminished . Unless potential sources are confident that compelled disclosure is unlikely , they will be reluctant to disclose any confidential information to reporters . ” [ Zerilli, 656 F.2d at 712. And if our case law has that consequence , it will undermine the Founders intention to protect the press “ that it
32 Id at 2
33 See id at 2
34 See id at 3 GIBSONDUNN
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couldbare the secrets of governmentandinformthe people.” New York Times Co. v. UnitedStates, 403 U.S. 713, 717 (Black, J., concurring) .
Lee, 428 F.3d at 303.
Judge Garland's caution applies with full force here . Compelling disclosure of records from reporters Matt Apuzzo, Adam Goldman , Eric Lichtblau, and Michael Schmidt in the service of this particular investigation chills other confidential sources from speaking to reporters and undermines the constitutionally protected freedom of the press. Cf. United States v . Ahn , 231 F.3d 26, 37 (D.C. Cir. 2000) (recognizing a qualified First Amendment privilege in criminal proceedings and affirming the district court’s grant of the reporter's motion to quash )
Indeed, the Government's 2703 d) application is precisely the kind of circumstance that Justice Powell, inBranzburg v. Hayes, suggested would justify the grant of a motion to quash on the basis of the reporter's privilege. See Branzburg v. Hayes, 408 U.S. 665 , 709–10 ( 1972) (Powell, J., concurring ). Justice Powell noted that “ no harassment ofnewsmen will be tolerated ” and “ ifthe newsman ... has ... reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash .” Id. Unlike inBranzburg or in In re Miller, which both involved grand jury subpoenas , here there is no “ legitimate need of law enforcement. Id see In re Miller, 397 F.3d 964 (D.C. Cir. 2005 ) , superseded by 438 F.3d 1141 (D.C. Cir. 2006) . Whereas, in a typical leak investigation, the Government is searching for any clue as to who may have leaked the information , the Government in this case has known for years where to begin looking: Insofar as its investigation is into the source or sources for the April 2017 article discussing how Comey handled investigations related to the presidential candidates in the 2016 election, the Government could seek records from Comey himself regarding the investigations and with whom he shared information . Moreover, the years-long delay between the article's publication and the Government's attempt to seek the information undermines any argument that the Government need [ s ] ” the information . it Particularly in lightof theTrump Administration's history of antagonism toward the press , is difficult to see this Section 2703 d) order as anything more than “harassment of newsmen ” and an attempt to “ annex news media as an investigative arm of the government. Branzburg, 408 U.S. at 709 .
35 We notethatthe individualreporterswhoserecordsare at issuemayhaveotherobjectionsto disclosure. Since they have not been permitted to know about the Section 2703 d) order , nothing in this letter should be construed as a waiver of any of their rights . GIBSONDUNN
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TheCommon- Law Reporter'sPrivilegeAlso ProhibitsCompelledDisclosureof The Times'sRecords
The common- law reporter'sprivilegesimilarlyprotectsagainstthe compelleddisclosureof confidentialsources.
Although the D.C. Circuit not squarely addressed the issue, a reporter's privilege exists under the common law , see Jaffee v . Redmond, 518 U.S. 1 8 ( 1996) (“ [ ]he common law is not immutable but flexible , and by its own principles adapts itself to varying conditions. ( quoting Funk v . United States, 290 U.S. 371, 383 ( 1933)) , and shields against compelled disclosure of records by members of the news media. See In re Miller, 397 964 (D.C. Cir. 2005) ( Tatel, J., concurring in thejudgment) ( advocating for a common law privilege); In re Miller, 405 F.3d 17 (D.C. Cir. 2005 ) ( Tatel, J. concurring in the denial of rehearing en banc) ( same)
In determining whether to recognize an evidentiary privilege , courts look to whether the privilege serves important private and public interests ; whether those interests outweigh the benefits of compelling disclosure ; and whether a consensus on recognizing the privilege exists among the states . Jaffee, 518 U.S. at 10–13 .
First, a reporter's privilege unquestionably serves crucial public and private interests. ] he press, shielded by the First Amendment has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . In re Miller, 438 1141, 1163 (D.C. Cir. 2006) ( Tatel, J., concurring) (quoting Estes v. Texas, 381 U.S. 532, 539 ( 1965)). Journalists thus serve “ as a powerful antidote to any abuses of power by governmental officials, and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve .” Mills v. Alabama, 384 U.S. 214, 219 ( 1966) In order to fulfill this vital function , journalists must be able to rely on and protect confidential sources : “ A journalist's inability to protect the confidentiality of sources s/ he must use willjeopardize the journalist's ability to obtain information on a confidential basis . This inturn will seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public. ” Riley v. Chester, 612 F.2d 708 , 714 (3d Cir. 1979). Absent a privilege, allowing government officials to compel the disclosure of confidential sources can no doubt constitute a significant intrusion into and, certainly , a chilling effect upon the newsgathering and editorial processes . ” Maughan v . NL Indus., 524 F. Supp. 93 , 95 (D.D.C. 1981). The reporter's privilege is thus essential to preserving both a press that is free to investigate and report and a public that is well- informed on important issues . GIBSONDUNN
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Second , these important interests favoring a reporter's privilege outweigh any alleged evidentiary benefits from compelling reporters to disclose confidential sources . “Compelling a reporter to disclose the identity of a source may significantly interfere with reporter's news gathering ability ” because, “ [ u ]nless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to any confidential information to reporters.” Zerilli, 656 F.2d at 711–12 . As a result “much of the desirable evidence to which the government] seek[ s ] access unlikely to come into being. ” In re Miller, 438 F.3d at 1168 (Tatel, J., concurring) ( quoting Jaffee, 518 U.S. at 12). In addition, the Government does not need to rely on journalists to conduct its investigatory business : In most cases, it “ can learn what reporters know by replicating their investigative efforts, e.g., speaking to the same witnesses and examining the same documents ,” at 1174, and a journalist's disclosure “ is therefore very rarely essential a government inquiry, N.Y. Times Co. v. Gonzales, 459 F.3d 160, 183 (2d Cir. 2006) (Sack, J., dissenting) .
Third, the vast majority of states and the District of Columbia recognize a reporter's privilege, demonstrating a “ consensus among the States ” that “ indicates that reason and experience support recognition of the privilege. ” Jaffee, 518 U.S. at 13. Judge Tatel in In re Miller found undisputed evidence ” that forty -nine states plus the District of Columbia offer at least qualified protection to reporters sources . 438 F.3d at 1170. In thirty -one states and the District of Columbia, state legislatures have passed “ shield laws” granting these protections. N.Y. Times Co., 459 F.3d at 182 ( Sack, J., dissenting). D.C.'s law , for instance, prohibits any court from “ compel ling any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose . . . [ he source of any news or information procured by the person . D.C. Code Ann. The widespread nature of reporters' privileges at the state level indicates that such protection “ has not interfered with effective law enforcement.” N.Y. Times Co., 459 at 182 ( Sack, J., dissenting)
Applying a common law reporter's privilege to the facts at hand protects The New York Times against the unnecessary compelled disclosure of the information that the Government's 2703 (d) application seeks . “When a privilege is grounded in constitutional policy, a demonstrated , specific need for evidence must be shown before it can be overcome.” Riley, 612 F.2d at 716 ( quoting United States v. Nixon, 418 U.S. 683, 713 ( 1974)) . In a case involving leaks of confidential government information such as this one, the application of the privilege depends on the government's need for the information and exhaustion of alternative sources ,” the public interest in compelling disclosure , measured by the harm the leak caused ” and “ the public interest in newsgathering, measured by the leaked information's value.” In re Miller, 438 F.3d at 1175 ( Tatel, J. , concurring). This approach " prevent s] discovery when no public interest supports it and only allows law enforcement to override the privilege “ when the leaked information does more harm than good. ” Id. This GIBSONDUNN
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fact- specific balancingis particularlyimportantin leakcases such as this one: “ [ ] f leaks revealmistakesthat high-levelofficialswouldhave preferredto keep secret, the administrationmaypursuethe source withexcessivezeal, regardlessofthe leaked information’spublicvalue. ” Id. at 1176.
Under the particular circumstances of this case , the Government has no need to pursue information from The New York Times's journalists . “ All courts which have considered this issue have agreed that the federal common law privilege of news writers shall not be breached without a strong showing by those seeking to elicit the information that there is no other source for the information requested .” Riley, 612 F.2d at 716. Again, unlike the typical leak of confidential government information, which may be “ extremely difficult to prove without the reporter's , ” In re Miller, 438 F.3d at 1166 ( Tatel, J., concurring ), the Government has alternative means of gleaning information about the Comey-related leaks. James Comey testified to the Senate on live television that he directed his friend Daniel Richman to leak his memos to the press36. The Governmenthas two ample avenues through whichit canpursuethe evidence itmayneed — and, in fact, it has already investigated Director Comey in conjunctionwith the leaks.37 As a result, any informationthe Governmentmayneedcan readilybeobtainedthrough other sources, without breachingthe confidentialityofreporter-source relationships.
In addition, the public interest here strongly favors protecting the newsgathering activities of The New York Times. The information leaked in this case does not implicate highly
36 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence, S. Hrg. 115–99 (June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG 115shrg25890.pdf ; see also Erik Ortiz & Dafna Linzer , Who Is Daniel Richman , the Columbia Professor Who Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM), https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leaked comey - s -private -n769846 ; Ken Dilanian at al., Comey Wrote Memo Saying Trump Urged Him to Drop Flynn Investigation : Sources, NBC News May 17, 2017 , 3:58 AM) https://www.nbcnews.com/news/us news / comey -wrote -memo - saying -trump -urged - him -drop -flynn -investigation -n760471; Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred , N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html .
37 Adam Goldman & KatieBenner, Justice Dept.Declinedto ProsecuteComey Over MemosAbout Trump, N.Y. Times ( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html; see also Off. of the InspectorGen., Dep’tof Justice, 18-04, A ReviewofVarious Actions by the Federal BureauofInvestigationand Department of Justicein Advance of the 2016 Election( 2018), https://www.justice.gov/file/1071991/download; Off of The InspectorGen., U.S. Dep’tof Justice, 19-02, ReportofInvestigationofFormer Federal BureauofInvestigationDirector James Comey’sDisclosureof SensitiveInvestigativeInformationand HandlingofCertainMemoranda (2019), https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf.
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sensitive matters of national security, like military strategies or the identities of undercover operatives. See In re Miller, 438 F.3d at 1173 ( Tatel, J., concurring ). The Department of Justice's Office of Inspector General, while concluding that Director Comey violated department and FBI policies through his leaks, did not identify any concrete harms that his disclosure caused to any government interests or ongoing investigations .38 And the lack of urgency associated with this investigation — which seemingly began years after the article was first published — belies the notion that the leak caused any real harm . The public interest in disclosure of the reporters now is thus quite limited. On the other hand, The New York Times's coverage of the leaked memos provided significant public value on topics of paramount importance: the conduct of the President of the United States and investigations into the two candidates in the 2016 presidential election.39 Stories like these, which shed light on the operation of government and the political process , serve weighty public interests, as there is “ practically universal agreement that a major purpose of [the First] Amendment [is] to protect the free discussion of governmental affairs.” Brown v. Hartlage, 456 U.S. 45, 52 ( 1982) .
The Government's Section 2703 (d) request an attempt to compel identification of reporters confidential sources — would chill the press's vital newsgathering role while providing limited public value in light of the availability of alternative channels of evidence . There is simply no basis to conclude that the records sought are indispensable to the investigation and could not be obtained elsewhere. Nor is there any public interest in disclosure sufficient to override the press’s interests in protecting information about its sources from government intrusion . Accordingly , the invasive and damaging order must give way to the reporter's privilege under both the First Amendment and the common law.
Conclusion
For all of these reasons , we respectfully request that the Government withdraw its Section 2703( d ) application, in addition to its non - disclosure request, as detailed in our March 16, 2021 letter.
38 See Off of The Inspector Gen., U.S. Dep’t of Justice, 19-02, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Investigative Information and Handling of Certain Memoranda (2019), at 60–61, https://www.oversight.gov/sites/default/files/oig reports /01902.pdf.
39 See MattApuzzoet al., Comey Triedto Shieldthe F.B.I.FromPolitics. Then HeShapedan Election, N.Y. Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html. GIBSONDUNN
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We look forward to discussingboththis request and our prior request to liftthe gag order with you and your colleagues. Please informus of position on these issues by Friday, April 2 as we intendto petition the Court for reliefshould we not reach an agreement.
Respectfully submitted,
Theodore J. BoutrousJr. AlexanderH. Southwell