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The manhunt — which began in July 2020 under then-Attorney General William Barr with a two-month request of 2017 Pentagon reporter Barbara Starr’s email records — continued even after a federal judge told the Department of Justice of its argument for access to Starr’s. The internal emails were “speculative” and “unrelated to any facts”.
The Trump administration’s clandestine pursuit represents a highly unusual and relentless thrust to journalists’ records. This included placing CNN General Counsel David Vigilante under a gag order preventing him from sharing any details about the government’s efforts with anyone other than the network’s president, senior attorneys at CNN’s parent company and attorneys at an outside law firm.
Had Vigilante violated this order, he would have been in danger of being arrested for contempt of court or potentially facing criminal prosecution for obstruction of justice.
It is not uncommon for a media organization to receive a subpoena from the Department of Justice over reporter records and negotiate the protection of its journalists. What distinguishes it is the utter secrecy that surrounded the matter, the months-long court proceedings, and the Trump administration’s unwillingness to negotiate.
This spring, the Justice Department notified reporters for CNN, The Washington Post and The New York Times that records had been seized in various investigations. It was the first public acknowledgment of the Trump administration’s attempts to obtain journalists’ communications without their knowledge.
CNN’s court battle appears to be the most drawn-out effort that resulted in the network agreeing to hand over a limited set of email records after reaching a deal with the Justice Department just days after the Biden administration.
The Justice Department presented arguments and classified information to two judges. All the while, network lawyers couldn’t find out even basic information about the Justice Department’s pursuit of what appeared to be a national security leak investigation aimed at wiping out tens of thousands of Star email records from 2017.
It remains unclear what investigation the records request was linked to. Prosecutors were searching for email records from a period of time when Starr reported on US military options in North Korea she was ready to present to Trump, as well as stories about Syria and Afghanistan.
A Justice Department official previously confirmed that Starr was never the target of any investigation. There was no indication that Starr violated any laws.
On Wednesday, a federal judge revealed parts of the case, releasing Vigilante to reveal the details of the legal battle for the first time. Additional court records are still banned even from the CNN show.
The leaders of CNN, the New York Times and the Washington Post are scheduled to meet on Monday with current Attorney General Merrick Garland, who announced this weekend that his department will not demand journalists’ records in the leak investigation.
secret order
Vigilante was first informed of the DOJ manhunt on July 17, 2020 when a confidential order was sent from a federal magistrate which ruled that CNN must provide records of Starr’s emails stored on the company’s servers. The order was based on a confidential filing by the Department of Justice to the Virginia Magistrates’ Court and requesting the names and dates of emails sent to and from Starr between June and July 2017, Vigilante said Wednesday.
The judge’s decision meant saving more than 30,000 email records.
While it is not clear the extent of Attorney General Barr’s involvement, under DoJ practice, prosecutors have been informing political appointees at the highest levels of the Justice Department, including the attorney general, about the prosecution.
The request came with another directive: Vigilante could not reveal his presence to Grid or Starr, or else he would be in danger of being arrested for contempt of court or criminally prosecuted.
“I’ve never had a situation like this before,” Vigilante said this week. “I felt like there was a Damocles sword above me all year long.”
Vigilante immediately enlisted the help of experienced Washington attorneys Jimmy Gorelick, Aaron Zipley and Paul Wolfson of WilmerHale law firm. They were able to extract information from CNN President Jeff Zucker in limited detail early on, too.
Lawyers representing CNN attempted to negotiate with a Department of Justice attorney, as is customary in response to a broad order like this. But prosecutors were not interested in narrowing down what they sought, Vigilante said.
Vigilante was not allowed to know the target of the investigation, what Starr reports were under scrutiny or even when the investigation first began.
“In short, all the tools that lawyers use every day to navigate these situations have been rejected,” Vigilante said.
legal battle
CNN first filed in court in September 2020 seeking to have the order rescinded or narrowed. During a closed video hearing on October 7, Federal District Judge Teresa Buchanan of Virginia asked the Department of Justice to narrow the scope of her request. However, prosecutors returned to her court two days later, filed an affidavit – which CNN could not see – containing classified information and persuaded Buchanan to allow the order to proceed.
By November, CNN moved to appeal.
At an appeal hearing on December 16, a new judge, U.S. District Judge Anthony Trenga of Virginia’s Eastern District, sided with CNN. In response to the Justice Department’s argument about internal emails, the judge noted that “the information requested is inherently too weak and insufficiently correlated with any relevant, material, or useful evidence attributable to the Government’s investigation, particularly when considered in light of the First Amendment activities to which it relates.” , according to Vigilante.
“That was the first description of the evidence we saw, and it was amazing,” Vigilante said on Wednesday.
CNN’s lawyers tried to resolve the issue, but on January 15, five days before the Biden administration took office, the Justice Department again asked Trenga to reconsider.
It was the same day that the US attorney general overseeing the Virginia investigation, Zachary Terwilliger, left office and other top officials left the Trump administration. Prosecutors from the Justice Department’s National Security Division, which is still headed by Trump-appointed John Demers, were also involved in the matter and the investigation.
On January 26, a solution was found. The Justice Department agreed to a much narrower disclosure and agreed that the July order would no longer be in effect. This decision opened the door for Starr to participate in advance should there be any further requests.
In May, the Department of Justice notified Starr that her communications had been confiscated. In that letter, CNN first learned that the Department of Justice had also obtained records relating to Starr’s phone numbers and personal email account. Neither CNN nor parent company AT&T had any of these accounts.
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