Gag Order Lifted On Yet Another Trump DOJ Leak Investigation That Targeted Journalists

Another leak investigation that involves the DOJ going after journalists' communications has been revealed. This would be the third time since Biden took office that subpoenas targeting journalists have had their gag orders removed, allowing the public to see what the DOJ was up to during Trump's unceremonious reign as president.

The previous revelations involved journalists employed by the Washington Post and CNN. This one targets one of Trump's favorite media punching bags, the "failing" New York Times. This investigation dates all the way back to James Comey's last months as the head of the FBI, a position he was ousted from when he failed to show Trump the required amount of obeisance.

The letter this week disclosing the seizure of phone records involving the Times reporters — Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt — had hinted at the existence of the separate fight over data that would show whom they had been in contact with over email.

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The Justice Department has not said what leak it was investigating, but the identity of the four reporters who were targeted and the date range of the communications sought strongly suggested that it centered on classified information in an April 2017 article about how James B. Comey Jr., the former F.B.I. director, handled politically charged investigations during the 2016 presidential campaign.

The article not specifically mentioned in the government's subpoena dealt with an email or memo not found in the Clinton email dump released by the State Department and available to search at Wikileaks -- one that said then-AG Loretta Lynch would throttle the investigation into Hillary Clinton's private email server. Comey, however, reopened that investigation shortly before the election, something that may have played a part in Trump's election win.

This memo, however, most likely prompted Comey to take the case public back in 2016. Comey held a press conference announcing the results of the investigation -- one that did not include criminal charges for Clinton. This is generally the sort of thing the DOJ and FBI rarely do, especially when the target of an investigation is a presidential candidate. Comey shrugged off appearances of politically-motivated impropriety twice, but still failed to satisfy his new boss' desire to be surrounded by loyalists.

The Biden Administration has placed Merrick Garland in charge of the DOJ and appears to be doing some house cleaning. Questionable investigative efforts involving leaks and journalists have been stripped of their gag orders and made public. But there's a delay here that doesn't square with the new administration's statement that it respects the First Amendment and has no interest in targeting journalists. This one rolled on for a few months after Biden's election, allowing the DOJ to continue pursuing these journalists' communications while swearing their supervisors to secrecy.

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 gag order prevented the executives from disclosing the government’s efforts to seize the records even to the executive editor, Dean Baquet, and other newsroom leaders.

Mr. McCraw said Friday that a federal court had lifted the order, which had been in effect since March 3, freeing him to reveal what had happened.

The DOJ was ultimately unable to obtain the email records it requested from Google. The company fought the subpoena, refusing to hand over the requested information. And with other DOJ officials recommending the case be closed because it was unlikely to result in criminal charges, the DOJ abandoned this effort and finally allowed the gag order to be lifted.

But even the lifting of the gag order was inexplicably delayed. The DOJ claimed in January that any notification would jeopardize the investigation and give targets an opportunity to destroy evidence. And in March, the DOJ continued to press for secrecy, asking a judge for permission to tell NYT's legal team but refusing to allow the targeted journalists to be notified about the government's desire to collect their email records.

While it's good to see the new DOJ express its support of journalists and the First Amendment, we need to remember Biden served two terms under Barack Obama -- a president who set records for leak investigations and prosecuted whistleblowers. Cleaning up Trump and Barr's mess is the right thing to do but the DOJ will continue to serve whoever's in charge and is always willing to wave aside constitutional concerns if it's politically expedient to do so.