Trump’s DOJ Was Wrong to Seize My Phone Records

These are precarious times for journalists and their sources, as the seizure of my call records shows.

The Department of Justice building before dawn in Washington, D.C., U.S., on Tuesday, Feb. 9, 2021. The Senate begins Donald Trump's second impeachment trial today with a fight over whether the proceeding is constitutional, as a number of conservative lawyers reject the defense teams claim that a former president can't be convicted of a crime by Congress. Photographer: Stefani Reynolds/Bloomberg via Getty Images

The Department of Justice building before dawn in Washington, D.C., on Feb. 9, 2021.

Photo: Stefani Reynolds/Bloomberg via Getty Images

I was sitting at an awards ceremony at my son’s high school last week when I saw an email pop up on my cellphone with an ominous subject line: “The Government Obtained Your Phone Records.” It was from a lawyer at the New York Times, where I’d been a reporter for 15 years in the Washington bureau. Minutes later, a Justice Department official emailed me, following up afterward with formal notification that prosecutors had secretly seized my cellphone records stretching across three-and-a-half months in early 2017.

President Donald Trump has been gone from the White House for nearly five months, but, as I learned, he is still managing to continue his assault on the “enemy of the people,” better known as the free press.

Learning long after the fact that the Trump administration had been rummaging around in my phone records was disquieting, a confirmation of the precarious times for journalists in Washington these days. It’s a badge of honor, I suppose, but it’s not one I ever wanted to wear, considering the risk it represents for reporters and their sources. The secrecy was the thing I found most unsettling; I’d been involved in run-ins with the government before over sensitive stories, but never like this — with everything done so surreptitiously, without the chance to know what was seized, much less fight it in court. More than anything, the episode reveals just how far the Trump administration was willing to go in its relentless, four-year assault on the free press, using both public and covert means of attack.

Under then-Attorney General William Barr, who often acted as Trump’s personal fixer, the Justice Department in 2020 secretly went back more than three years to subpoena the phone records for myself and three other reporters at the Times as part of a leak investigation. The Justice Department was apparently focused on an 8,000-word story we did on the FBI’s outsize role in the 2016 election, including its dual investigations into Hillary Clinton’s emails and the Trump campaign’s possible ties to Russia. It doesn’t look like the leak investigation led anywhere, but the seizure of the records creates an inevitable chilling effect for reporters and skittish sources trying to discuss stories of national public interest.

We also learned that the Justice Department at the tail end of the Trump administration had tried, unsuccessfully, to gather our email records from Google and had obtained a gag order that kept the efforts secret for months. Even more troubling, Justice Department lawyers in the Biden administration continued waging that fight after Trump was gone. Those revelations followed the news weeks earlier that the Justice Department under Trump had secretly seized phone records from reporters at the Washington Post and CNN.

The episode reveals just how far the Trump administration was willing to go in its relentless, four-year assault on the free press.

Under both Presidents Barack Obama and George W. Bush, national security reporters in Washington were already on their heels after a series of aggressive steps against reporters. Under Bush, officials at the Justice Department took away my press pass for a time because they didn’t like some of the stories I wrote, and in 2008 they threatened to subpoena me to disclose my sources for other stories I wrote at the Times with James Risen that disclosed a secret NSA wiretapping program.

The Justice Department ultimately backed down on the subpoena threat, but only after several fraught months of uncertainty over whether I might have to make the decision to go to jail rather than reveal confidential sources. A few years earlier, another Times reporter had gone to jail for 85 days for refusing to reveal confidential sources regarding CIA operative Valerie Plame. I remember spending endless hours going over the minutiae of my case with the newspaper’s lawyers and trying to predict if prosecutors would blink first. Fortunately, they did.

Under Obama, the number of leak investigations rose, a trend that surprised many reporters because Obama had seemed more congenial to the press than Bush. The Justice Department had seized records from more than 20 phone lines at the Associated Press over a story on an Al Qaeda bomb plot, and it sought to compel Risen, with a threat of possible jail time, to disclose his sources for a CIA-related story. Risen, who is now a senior national security correspondent at The Intercept, stared down the DOJ.

But under Trump, the assault on the press escalated to another level — with a raw, belligerent tone unseen before. Trump himself frequently declared the press “the enemy of the people,” attacked one accurate story after another as “fake news,” and publicly mocked and badgered reporters asking him legitimate questions at his press conferences. The White House took away one journalist’s press credentials, and in just the first eight months of the administration, the number of leak investigations nearly tripled.

US Attorney General William Barr speaks during a news conference to provide an update on the investigation of the terrorist bombing of  Pan Am flight 103 on the 32nd anniversary of the attack, at the US Department of Justice in Washington, DC, on December 21, 2020. - The US Justice Department unveiled charges against the Libyan who allegedly built the bomb that exploded aboard Pan Am flight 103 over Scotland exactly 32 years ago. Attorney General Bill Barr said a former Libyan intelligence operative, "Abu Agela Mas'ud Kheir Al-Marimi," helped build the explosive device that blew up the aircraft -- killing 259 people, including 190 Americans, aboard the US-bound flight and 11 people on the ground. (Photo by MICHAEL REYNOLDS / POOL / AFP) (Photo by MICHAEL REYNOLDS/POOL/AFP via Getty Images)

Then-U.S. Attorney General William Barr speaks during a news conference at the Department of Justice in Washington, D.C., on Dec. 21, 2020.

Photo: Michael Reynolds/Pool/AFP via Getty Images

I was on the receiving end of Trump’s offensive even before the seizure of my phone records. In June 2017, after I had left the New York Times to become the Washington investigative editor at CNN, top Trump advisers pressured CNN to retract a story by one of my reporters that laid out possible ties between people in the Trump administration and a giant Russian investment fund, which had attracted the attention of Senate investigators. Trump’s then-adviser Anthony Scaramucci, who was mentioned in the story because he had met with the top executive of the Russian fund when it was facing U.S. sanctions, threatened to sue CNN and demanded a retraction, and there were concerns that Trump and the White House would seek to scuttle the cable network’s pending merger with AT&T if it did not pull the piece.

CNN buckled, retracting the story because it said it “did not meet CNN’s editorial standards.” CNN executives refused to say whether they considered the story accurate or not. In fact, the story had been reviewed and edited at multiple levels by at least eight editors and myself. Trump celebrated the retraction. I resigned from CNN, astounded that the network had capitulated, and dozens of journalists told me how dismayed they were at the outcome. The retraction was “a cowardly, panicked move,” Risen told the Washington Post, with CNN executives “easily intimidated by Trump.” A number of the core elements of the story involving contacts between the Russian investment fund and Trump’s transition team were later borne out in special counsel Robert S. Mueller’s report on the Trump-Russia investigation.

The specter of Russia and Trump surfaced for me again last October when I was served with another subpoena for my reporting records, this one coming from lawyers for Russian billionaire businessperson Mikhail Fridman, a founder of Russia’s Alfa Bank. At the Times, I had written about Alfa Bank and a chain of thousands of computer contacts between the servers for the Trump Tower in New York and Alfa Bank in Moscow during the 2016 campaign. Alfa Bank denied any connection to Trump, and lawyers for Fridman and others at Alfa with vast financial resources behind them have been using subpoenas to try to identify the computer scientists who discovered the mysterious connection. While it wasn’t clear whether Alfa Bank’s lawyers were actually working with the Trump administration in the litigation, they clearly shared a common interest in discrediting the computer evidence, and “there’s a unity of purpose,” one lawyer involved in the litigation told the New Yorker.

My lawyers objected to the subpoena, and that case is still dragging on in federal court.

In this latest episode, I don’t know what the FBI may have found in rummaging through my phone records. Nothing, I hope, except calls for routine reporting matters and calls to and from my wife and kids. Like many Washington reporters, I started using encrypted channels and other means long ago to communicate with sensitive sources. Confidential sources are the lifeblood of national security reporters in Washington. Without them, it becomes impossible to report stories of important national interest. Forty-nine states and the District of Columbia all have some form of a “shield law” protecting journalists against disclosure of their sources. Three decades ago, when I was a young reporter with the Los Angeles Times, California’s shield law protected me from being forced to disclose where I’d gotten a batch of audio tapes that were evidence in a big murder case. Yet for all the protection of journalists’ sources at the state level, the federal government — the place where it’s needed most — still doesn’t have a shield law after years of failed attempts in Congress. It’s a gaping hole in First Amendment protections for journalists, made even clearer by last week’s disclosures.

The seizure of our phone records may turn out to be a boon for journalists, however. The Justice Department announced last weekend, after two days of criticism over the seizure of our phone records, that it would no longer use subpoenas or other legal tools to obtain information about journalists’ sources. It was a major turnabout for the Biden administration, and if it holds, it’s a major boost for press freedom and the ability of journalists to get information out to the public. I just wish that had been the policy all along.

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