The Biden administration not only supported a secret legal effort to obtain the phone and email records of four New York Times reporters, but its Justice Department imposed a gag order on the Times “to shield it from public view” — a move the newspaper called “unprecedented” in journalistic history.
The revelation comes just weeks after President Joe Biden called such records requests “absolutely, positively wrong,” adding, “I will not let that happen.”
On January 5, the Trump administration petitioned a court to obtain the reporters’ email information from Google, which provides the Times’ email services. The newly inaugurated Biden administration continued the probe and added a new twist.
“While the Trump administration never informed the Times about the effort, the Biden administration continued waging the fight this year, telling a handful of top Times executives about it but imposing a gag order to shield it from public view, said the lawyer, David McCraw, who called the move unprecedented,” the Times reported.
Google refused to turn over the records, the Times reported, “apparently demanding that the Times be told” about the Justice Department’s request, “as its contract with the company requires.”
On March 3, the Biden administration allowed the court to notify McCraw, but the judge said that he “may not share the existence or substance of either of these Orders with any other person without further approval from this Court.”
Over the next few weeks, McCraw said he was allowed to inform a handful of people, including the company’s legal team and publisher — but not Executive Editor Dean Baquet or other newsroom leaders, much less the public.
McCraw called the order “stunning,” while Baquet noted the bipartisan nature of the email probe, which began “in the final 15 days of the Trump administration. And the Biden administration continued to pursue it. As I said before, it profoundly undermines press freedom.”
Such requests — launched to find out which administration officials leaked sensitive national security information to the media — amount to about one “case a year,” said Washington Post national security reporter Devlin Barrett. But the issuance of a gag order has reportedly never taken place before March.
“It’s completely unprecedented for the Justice Department to seek and obtain a gag order in a leak investigation,” Theodore J. Boutrous Jr., a lawyer who assisted the Times with its negotiations, told The Washington Post. “It adds insult to injury for the government to seek to muzzle the news organization fighting to protect its sources.”
The Times said it went public the moment the order was lifted on Friday. Strategic news decisions about releasing bad news just before the weekend are often derisively called the “Friday news dump.”
Meanwhile, the Biden administration — echoing the Obama administration — released a statement saying it knew nothing about its own DOJ’s activities until the media publicized them.
“No one at the White House was aware of the gag order until Friday night,” said White House press secretary Jen Psaki in a statement released on Saturday.
The Biden administration added it would put an end to the practice of asking for the records of bona fide journalists.
“While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the [p]resident’s policy direction to the [d]epartment, and the Department of Justice has reconfirmed it will not be used moving forward,” Psaki said.
DOJ spokesman Anthony Coley added that “going forward,” the Justice Department would make “a change to its longstanding practice” and “not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”
But The Associated Press noted that the DOJ’s new order “did not define who exactly would be counted as a member of the media for the purposes of the policy and how broadly the protection would apply.” For instance, would this apply to undercover journalists infiltrating abortion facilities, or bloggers?
The Biden administration’s deflection did not satisfy many members of the legacy media, including CNN’s Kaitlan Collins. “This statement comes weeks after Biden told me he wouldn’t allow DOJ to seize reporters’ records and hours after a top lawyer for NYT revealed that DOJ, under Trump & Biden, sought to obtain email logs of reporters to identify their sources and bound executives by a gag order,” she tweeted.
This statement comes weeks after Biden told me he wouldn't allow DOJ to seize reporters' records and hours after a top lawyer for NYT revealed that DOJ, under Trump & Biden, sought to obtain email logs of reporters to identify their sources and bound executives by a gag order.
— Kaitlan Collins (@kaitlancollins) June 5, 2021
CNN’s Jake Tapper pointed out, “The gag order happened *under Biden* who to @kaitlancollins decried such DOJ searches.” (Emphasis in original.)
— Jake Tapper (@jaketapper) June 5, 2021
And the Times’ Washington correspondent, Maggie Haberman, reiterated, “Again, this gag was imposed by the Biden DOJ.”
"There was no precedent, Mr. McCraw said, for the government to impose a gag order on New York Times personnel as part of a leak investigation." Again, this gag was imposed by the Biden DOJ https://t.co/ZbCB71hraq
— Maggie Haberman (@maggieNYT) June 5, 2021
But others sought to put the blame on the previous, Republican administration. Senator Richard Blumenthal (D-CT) omitted the Biden administration’s actions completely, tweeting, “This gag order unconscionably concealing DOJ’s legally dubious probe of reporters under Trump requires full public disclosure.”
This gag order unconscionably concealing DOJ’s legally dubious probe of reporters under Trump requires full public disclosure. DOJ now must come clean. Tell the public why prosecutors perpetuated these secret abuses & forced silence. https://t.co/aYD9fYslR1
— Richard Blumenthal (@SenBlumenthal) June 5, 2021
The Trump administration reportedly sought records from the early months of 2017 from New York Times reporters Matt Apuzzo, Adam Goldman, Eric Lichtblau, and Michael S. Schmidt. The Obama administration had similarly asked for officials to turn over the records of Apuzzo and Goldman during the course of nine separate investigations into White House leaks, actions that the AP said in 2013 constituted a “massive and unprecedented intrusion” into freedom of the press guaranteed by the First Amendment.