The Justice Department escalated its bid to search a Washington Post reporter’s electronic devices pursuant to a warrant, seeking to overturn a magistrate judge’s order that the court — not the government — lead the initial review.
In a court filing Tuesday, the DOJ said it wants a judge in the Eastern District of Virginia to vacate Magistrate Judge William Porter’s order, which he said he reached in refusing to leave “the government’s fox in charge of the Washington Post’s henhouse.”
The DOJ obtained a search warrant for reporter Hannah Natanson’s devices as part of an investigation into Aurelio Luis Perez-Lugones, who was charged with unlawfully retaining national defense information. The government said he gave Natanson top secret and other classified information that later appeared in her published articles.
Perez-Lugones was charged in Maryland. The litigation over Natanson’s devices is proceeding in Virginia because the FBI seized them from her home there during a January search. It took two laptops, a mobile phone, a portable drive, a recording device and an exercise watch. In a sworn declaration later that month, Natanson said the seizure of all her devices “has eliminated my ability to collect information and publish news stories.”
In his Feb. 24 ruling, which the DOJ is challenging, Porter said the case presented difficult legal issues, sitting at “the intersection of the government’s compelling interest in prosecuting the unlawful disclosure of classified national security information and a working journalist’s First Amendment rights.”
To guide his decision, the magistrate judge cited precedent from the federal appeals court that covers Virginia and nearby states, specifically a case regarding a Baltimore law firm’s challenge to a government search of privileged attorney-client materials. In that case, the appeals court said that agents and prosecutors “rummaging through law firm materials that are protected by attorney-client privilege and the work-product doctrine is at odds with the appearance of justice.”
Porter said the “appearance problem” in the Baltimore case is an even bigger problem here. “Given the documented reporting on government leak investigations and the government’s well-chronicled efforts to stop them, allowing the government’s filter team to search a reporter’s work product — most of which consists of unrelated information from confidential sources — is the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse,” he wrote.
Porter also took issue with the government’s conduct in securing the warrant. He called it a “significant concern” that the Justice Department had failed to identify and analyze a federal privacy law that’s relevant to seeking information from the press. “This omission has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding,” Porter wrote, making his complaint only one of the latest instances of judges in President Donald Trump’s second term questioning the “presumption of regularity” that presumes the government’s good faith.
“The government’s conduct has disturbed that baseline posture of deference,” Porter wrote.
Nonetheless, he couldn’t say, in retrospect, that he definitely wouldn’t have approved the warrant if the DOJ had disclosed all relevant information. But he allowed for that possibility and said that he would have at least “asked more questions” but that the government “deprived the Court of the opportunity to make those real-time decisions.”
In its challenge to Porter’s decision, the DOJ sought to distinguish the Baltimore law firm case as not applicable to this situation, in which the authorities are looking for classified information that the government owns.
The DOJ also draws on broader themes that have dominated litigation of all sorts over the past year, casting the matter as one about the separation of powers and the judiciary unduly intervening with executive authority.
“Once the Government obtained the signature of a magistrate judge regarding probable cause, the Government was authorized to search the devices for evidence within the warrant’s scope,” the DOJ said in its objections to the magistrate’s opinion. “That is the process that should have commenced once the Government obtained the signature of this magistrate judge, but he took on the search duties himself,” it said.
Further complaining that Porter granted special protections to a journalist, the DOJ wrote that reporters “are subject to lawful searches and seizures just like everyone else.”
The DOJ also identified several specific issues with a court-led review, including a lack of expertise on the court’s part in spotting classified information, as well as the risk that the judge or other court personnel reviewing sensitive materials could lead to the unintentional dissemination of classified information. The DOJ emphasized that it wasn’t criticizing the judge’s reliability but maintained that the risk remained inherent in the judge’s proposed method of review.
The government specified that it wants to use a “filter team” of personnel who are technically separate from the prosecution team. The filter team would screen for privileged materials that are outside the scope of the warrant and only send information within the scope of the warrant to the prosecution team.
In the ruling that the DOJ is challenging, Porter wrote that the concern that even such a theoretically independent review within the government “may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.”
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