The Justice Department informed CNN Pentagon correspondent Barbara Starr, in a May 13 letter, that prosecutors had obtained her phone and email records covering two months, between June 1, 2017 to July 31, 2017. The letter listed phone numbers for Starr’s Pentagon extension, the CNN Pentagon booth phone number and her home and cell phones, as well as Starr’s work and personal email accounts.
It is unclear when the investigation was opened, whether it happened under Attorney General Jeff Sessions or Attorney General William Barr, and what the Trump administration was looking for in Starr’s records. The Justice Department confirmed the records were sought through the courts last year but provided no further explanation or context.
A Justice Department official confirmed that Starr was never the target of any investigation.
The seizure of Starr’s records is the third disclosure in as many weeks where the Trump administration used its Justice Department to secretly obtain communications of journalists or to expose the identity of critics of former President Donald Trump’s allies.
“CNN strongly condemns the secret collection of any aspect of a journalist’s correspondence, which is clearly protected by the First Amendment,” said CNN President Jeff Zucker. “We are asking for an immediate meeting with the Justice Department for an explanation.”
The Obama administration also came under criticism for its heavy-handed tactics toward leak investigations involving journalists. But the Trump administration aggressively pursued leak investigations as the former President frequently railed against the leaks coming out of the government. The latest disclosures appear to show the Justice Department targeting news organizations and social media companies particularly loathed by the former President.
Three Washington Post reporters who covered the FBI’s Russia investigation were told earlier this month that last year the Justice Department had obtained their phone records from 2017. In 2018, the Justice Department disclosed it had also obtained 2017 phone and email communications from a reporter for Buzzfeed, Politico and the New York Times who had written stories about Russia.
Court filings revealed last week that the Justice Department under Barr also subpoenaed Twitter in late November 2020 to try to learn the identity of the user behind a parody account that criticized Rep. Devin Nunes, a California Republican and stalwart Trump ally, which Twitter suggested was part of an effort to try to unmask Nunes’ critics and chill their speech.
Anthony Coley, DOJ’s director of public affairs and a senior advisor to Attorney General Merrick Garland, said in a statement to CNN that the decision to use the legal process to obtain Starr’s communications was approved in 2020, during the Trump administration.
“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 commitment to a free and independent press,” Coley said.
Barr did not respond to a request for comment.
Free speech and government transparency advocates warn that the seizure of journalists’ records has a chilling impact on newsgathering and discourages whistleblowers from coming forward with government wrongdoing.
“Now for the second time in just about as many weeks we’ve seen these disclosures that the DOJ has gone about obtaining records without advance notice to the journalist or to the news organization to give the reporter a chance to contest what DOJ is seeking,” said Bruce Brown, Executive Director, Reporters Committee for Freedom of the Press.
“Twice now we’ve seen in the prior administration that toward the end of their time in office they used this route to intrude into the very heart of what newsgathering is about,” Brown continued. “It’s deeply disconcerting and the new team at DOJ has a real imperative in front of it now to very quickly explain to these newsrooms, and to press freedom advocates, what happened and how did it happen, and why did it happen and what they can do to ensure in this administration and future administrations this doesn’t happen again.”
The Justice Department said in the letter to Starr that it had obtained phone “toll records,” which would include calls made to and from the targeted phones and the length of the calls. The letter said that the Justice Department had received “non-content information” from Starr’s email accounts, meaning the recipient, sender, date and time would be included, but not the content of the emails.
The Justice Department did not say why Starr’s communications were being sought. During the two-month timeframe listed in the letter, Starr reported on US military options in North Korea that were ready to be presented to Trump, as well as stories on Syria and Afghanistan.
Under DOJ regulations, the department can secretly obtain journalists’ records through a court order, without the journalists knowing. The Justice Department laid out revised, slightly more stringent guidelines for issuing media subpoenas during the Obama administration in 2015, mandating that the attorney general had to authorize subpoenas when they related to the newsgathering activities of journalists.
But the policy still provides the attorney general and other top department officials wide latitude to seek communications from journalists — and to keep the matter secret initially.
“The level of secrecy is something we’ve been very focused on for years. From our perspective it impacts reporter source privilege and the protections for the reporter,” said Katie Townsend, legal director at the Reporters Committee for Freedom of the Press. “These things are routinely filed under seal and kept under seal and maintained under seal indefinitely.”
In some cases, members of the media are notified before a subpoena is issued, giving the news organization the ability to fight the subpoena in court. But DOJ policy also allows prosecutors to obtain journalists’ communications without their knowledge through the courts — if the attorney general signs off and the Justice Department determines the case falls under “extraordinary measures,” such as harm to national security, and after all other reasonable attempts have been made to obtain the information elsewhere.
“On paper, DOJ established these guidelines and levels of approval that appear fairly stringent,” CNN Senior Legal Analyst Elie Honig said. “But it is entirely and solely within DOJ’s discretion to seek issuance of a subpoena.”
The scope of these subpoenas can often be overly broad, Honig said, “because you’re going to get all of the journalists’ phone records, the vast amount of which do not pertain to their newsgathering activities at all.”
“A lot of this just rests on the judgment and good faith of Justice Department officials and it is subject to very few formal checks,” he added.
The process in some ways is similar to how federal investigators can secretly obtain communications under the Foreign Intelligence Surveillance Act through the FISA Court.
Ultimately, journalists must be informed that their records were obtained, as Starr was by the letter on May 13. But the timeline is fluid, as the guidelines mandate the notice must occur only after there is no longer a threat to the investigation or national security, or no longer than 90 days from the time the government has received the information sought from the subpoena.
The letter to Starr was signed by Raj Parekh, the acting US attorney for the Eastern District of Virginia, and John Demers, the assistant attorney general for the National Security Division.
Since the time he took office, Trump fumed about leaks from inside the government, beginning with a January 2017 Washington Post story that disclosed Trump’s first national security adviser Michael Flynn had discussed sanctions with the Russian ambassador to the US.
In July 2017, Trump scolded then-Attorney General Jeff Sessions to crack down on leaks from intelligence agencies, and the following month, Sessions announced the Justice Department was “reviewing policies affecting media subpoenas.”
In November 2017, Sessions announced that the Justice Department had opened 27 leak investigations. Several officials were charged by the Trump Justice Department for leaking information, including federal contractor Reality Winner in 2017, a Treasury Department official in 2018 and a counterterrorism analyst at the Defense Intelligence Agency in 2019.