DOJ agrees to withdraw subpoenas for New York Times journalists

Lawyers with the Department of Justice on Thursday agreed to unilaterally withdraw a series of subpoenas that sought to compel New York Times journalists to testify about their sources and provide access their phone records.

U.S. District Judge Arun Subramanian said he would quash the subpoenas if the Department of Justice refused to withdraw them.

"It's a matter of basic compliance with the law," Judge Subramanian said.

Attorneys for the newspaper had asked the judge to quash the subpoenas, which they alleged were an attempt to retaliate against and intimidate reporters whose work angered President Donald Trump.

Sean Buckley, the chief counsel to the U.S. attorney for the Southern District of New York, said that prosecutors would return to the judge if they decide to seek new subpoenas in the future.

"Upon further consideration, the government is prepared unilaterally to withdraw the subpoenas at this time," he said.

Buckley acknowledged in open court that the Department of Justice served the subpoenas before carrying out some initial investigative steps -- a requirement imposed by the 2nd U.S. Circuit Court of Appeals.

"Doesn't that turn the law and regulations on its head?" Subramanian asked. "Subpoenas are the last step, not the first step."

"No one was trying to pull a fast one on the court," Buckley told the judge.

Regarding subpoenas for records related to journalists' family members, Buckley said, "That is an error, judge, which we own. That is a consequence of trying to move too quickly."

Following the hearing, a Justice Department spokesperson issued a statement rebuking the judge and pledging that the government's leak investigation remains open and active.

"This judge threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation," the DOJ statement said. "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."

"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," the statement said.

During Thursday's court proceedings, federal prosecutors also acknowledged a series of mistakes and "imprecise" wording that led the DOJ to seek additional subpoenas, even after lawyers for the New York Times raised concerns about the legality of the initial subpoenas.

"When you see something like this, if this were a civil proceeding ... what I would normally do is ask the parties to show cause why sanctions shouldn't issue or steps shouldn't be taken with respect to the incorrect statements and misstatements," Subramanian said about the errors and oversights made by the Department of Justice.

Lawyers for the New York Times criticized the actions of the Justice Department, saying the "record is replete with bad faith."

The Department of Justice had defended the subpoenas in court filings, arguing they were trying to identify if government employees are leaking classified information that impacts national security.

"The above-referenced articles presented a substantial national security concern, including because they indicated potential leaks of classified or national defense information that appeared to have been provided to the Times when the President of the United States, senior officials, and reporters were flying in foreign airspace during a time of hostilities with a foreign adversary that has made clear its intent to harm the President and U.S. interests," wrote Sean Buckley, the Deputy United States Attorney for the Southern District of New York.

However, lawyers for the New York Times argued that the subpoenas were unlawful and unconstitutional because they "were issued in a bad faith effort to harass," intimidate and retaliate against the newspaper, which they said, "has been a particular lightning rod for the President's ire."

"Every indication supports the conclusion that the Administration issued the Subpoenas because the reporting enraged the President and embarrassed him by resurfacing and reinforcing criticism about his acceptance of a jet from a foreign government and his insistence on quickly retrofitting it for use as Air Force One," the Times attorneys wrote.

The Qatari royal family donated the $400 million Boeing 747-8 to the United States last year, and the Air Force had estimated it would cost less than $400 million to retrofit the plane. It's unclear how much money has been spent on the plane so far, and the plane is expected to undergo further upgrades.

Shortly before Trump leaves office, the ownership of the plane is expected to be transferred to the Donald J. Trump Presidential Library Foundation, so Trump can continue using the luxury aircraft.

Lawyers for the New York Times also argued that the subpoenas violate the basic journalistic protections affirmed by the 2nd U.S. Circuit Court of Appeals, which established a three-part test to evaluate if a journalist must disclose their sources. Under that test, prosecutors would need to demonstrate that they have exhausted all other options to get the information.

"The timing compels the conclusion that the Government did not even try to comply with its own regulations governing media subpoenas," lawyers for the New York Times wrote in a court filing, highlighting that the subpoenas were served within a day of the investigation beginning. "In that brief period, the Government plainly did not have time to commence, much less conduct, an investigation of any suspected leak of classified or National Defense Information."

The Times has also accused the Department of Justice of violating their own guidelines for notifying reporters about the subpoenas, as well as issuing another subpoena after the outlet filed its motion to quash the initial subpoenas. According to a court filing last week, the Department of Justice served at least two subpoenas to phone providers after the New York Times raised concerns about the lawfulness of the first subpoenas.

Federal prosecutors deny that they violated DOJ policies, failed to carry out initial investigative steps, or lack a legal basis for the probe.

"We value and appreciate the important role that the press plays in this country, but DOJ also plays an important role to make sure that the people entrusted with our nation's secrets do what they're supposed to do with that information, which means not sharing classified information," a Department of Justice spokesperson said earlier this month.