Donald Trump’s justice department has abandoned, for now, efforts to subpoena New York Times reporters over their coverage of security risks involving the president’s Qatari-gifted Air Force One replacement.
Sean Buckley, a top-ranking official in the Manhattan federal prosecutor’s office, announced the decision on Thursday afternoon about an hour into a proceeding where he was repeatedly grilled on the appropriateness of the subpoenas. Buckley was in court because the New York Times filed paperwork to fight these subpoenas.
Shortly after the proceeding began, Judge Arun Subramanian asked Buckley whether the subpoenas met the strict criteria for mandating testimony from reporters. Such subpoenas, Subramanian said, would not be considered appropriate unless authorities could not get information from any other source.
“Doesn’t the law … indicate that subpoenas are the last step, not the first step?” Subramanian asked, adding at one point, “Why don’t you tell me what the exception is that you’re relying on?”
Subramanian added: “I’m just trying to make sure I’m not missing anything.” Buckley replied that the exception was triggered when the attorney general said that subpoenas could be sought right away.
“It specifically says that before you seek a subpoena you need to make all reasonable attempts to seek information” elsewhere, Subramanian said at another point. “It’s just a matter of basic compliance with the law.”
The justice department had issued grand jury subpoenas to several New York Times journalists after they reported that the $400m plane lacked anti-missile and other security measures. Older Air Force One models have these capabilities.
While this unorthodox gift has long raised eyebrows among accountability and security experts, concerns came to a head earlier this month, when Trump traveled on the new Air Force One to Turkey for a Nato summit.
But Trump rode the older Air Force One to leave Turkey, which shares a border with Iran. The trip came as a US-Iran ceasefire crumpled. The Times, citing anonymous sources, reported that Trump flew on the older Air Force One at the Secret Service’s request.
Trump told reporters that he didn’t opt out of flying on the new plane over safety concerns, asserting that he was always at risk from Iran. “I have a threat all the time,” Trump said. “I’m No 1 on their list.”
The Times also reported that before publishing a story on airplane security concerns, a high-ranking FBI official asked them to withhold the article for national security reasons. This official, the Times said, refused to provide details.
The journalists went forward with their report and on 10 July were subpoenaed for grand jury testimony.
“The subpoenas represent a brazen effort to intimidate the press into abandoning its critical, constitutionally protected role in securing and fostering our Republican system of self government,” Times attorneys said in court papers filed on 15 July. “Less than 24 hours after the Times published the second of two articles concerning the Boeing airplane gifted to the president by Qatar, the Department of Justice … dispatched armed federal agents to the journalists’ homes, serving them with the subpoenas to appear in the grand jury less than three business days later.”
The FBI director, the Times attorneys said, “orchestrated this activity from within the White House, in close coordination with top administration officials and in response to the president’s anger over the reporting”.
At one point when Subramanian admonished Buckley for his department’s failure to follow procedures, Buckley said: “I don’t review every piece of paper, judge – there’s multiple layers involved in the review of documents.”
As the proceeding wound on and Buckley withstood still more questioning from Subramanian, he asked for a brief recess to chat with the Times’ lawyers. Court resumed several minutes later.
“The government is prepared to unilaterally withdraw the subpoenas at this time,” Buckley said. And, should they pursue subpoenas in the future, Buckley added, they would take necessary steps to follow procedure.
“So moving forward, we’re not having the issues that have plagued this case from the outset?” Subramanian asked. Buckley answered in the affirmative.
“Do you pledge to follow that policy going forward?”
“Yes, judge,” Buckley said.
“We’re not gonna have a situation where, for instance, someone is watching Sheep Detectives and FBI agents show up at their door, right?” Subramanian also said, referring to the Hugh Jackman film. In Sheep Detectives, Jackman plays a kindhearted shepherd whose flock seeks justice for him.
One of the Times reporters subpoenaed was watching the film when federal agents arrived at his home. Subramanian said he couldn’t think of anything more inconsistent with the movie “than having an FBI agent show up at their door”.
“Today’s proceeding was an important affirmation of our country’s commitment to a free press,” said David McCraw, senior vice-president and deputy general counsel for the Times, in a statement to reporters. “We are pleased that the government finally conceded that the subpoenas violated the law, but they should never have been issued in the first place.”
“The Times and our journalists will continue to report and seek the truth without fear or favor. We will not be deterred in the face of tactics like these.”
Asked for comment on the withdrawal of these subpoenas, the justice department complained about Subramanian. “The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides clear longstanding principles and common sense – blocking the grand jury from receiving core evidence in a national security investigation,” the department said in a statement.
“Make no mistake, this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime.”
