The Trump administration battled with CNN for half a year to obtain the email records of a reporter and insisted it all take place under an extraordinary order of secrecy, CNN’s lead attorney revealed on Wednesday.
The pursuit – which started in July 2020 under then-Attorney General William Barr with a demand for two months’ of CNN Pentagon correspondent Barbara Starr’s 2017 email logs – continued even after a federal judge told the Justice Department its argument for access to Starr’s internal emails was “speculative” and “unanchored in any facts.”
The Trump administration’s secret pursuit represents a highly unusual and unrelenting push for journalists’ records. It included putting CNN general counsel David Vigilante under a gag order prohibiting him from sharing any details about the government’s efforts with anyone beyond the network’s president, top attorneys at CNN’s corporate parent and attorneys at an outside law firm.
Had Vigilante violated that order, he would have risked being held in contempt of court or potentially faced a felony prosecution for obstruction of justice.
It’s not uncommon for a media organization to receive a subpoena from the Justice Department for reporter records and to negotiate protections for its journalists. What stands apart is the total secrecy that surrounded the order, the months-long court proceeding and the Trump administration’s unwillingness to negotiate.
This spring, the Justice Department notified reporters at CNN, The Washington Post and The New York Times that records had been seized in different investigations. This was the first public acknowledgement of the Trump administration’s attempts to obtain journalists’ communications without their knowledge.
The CNN court battle appears to be the most protracted of the efforts and resulted in the network agreeing to turn over a limited set of email logs after reaching a deal with the Justice Department just days into the Biden administration.
The Justice Department submitted arguments and classified information confidentially to two judges. Throughout, the network’s lawyers were unable to learn even basic information about the Justice Department’s pursuit in what appears to be a national security leak investigation that aimed to sweep up tens of thousands of Starr’s email logs from 2017.
It’s still unclear which investigation the records demand was connected to. Prosecutors were seeking email records from a time period when Starr reported on US military options in North Korea that were ready to be presented to Trump, as well as stories on Syria and Afghanistan.
A Justice Department official previously confirmed that Starr was never the target of any investigation. There was never an indication that Starr violated any laws.
A federal judge on Wednesday unsealed parts of the case, freeing Vigilante to disclose details of the legal battle for the first time. Additional court records are still blocked from even CNN’s view.
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 his department would not demand journalists’ records in leak investigations.
A secret order
Vigilante was first informed about the Justice Department pursuit on July 17, 2020 when he was sent a secret order issued by a federal magistrate judge who ruled CNN must produce records of Starr’s emails kept on company servers. The order was based on a secret submission by the Justice Department to the magistrate court in Virginia and sought the names and dates of emails sent to and from Starr between June and July 2017, Vigilante said on Wednesday.
The judge’s decision would have meant providing more than 30,000 email records.
While it is not clear how involved Attorney General Barr was, under DOJ practice prosecutors would have made aware political appointees at the highest levels of the Justice Department, including the attorney general, about the pursuit.
The demand came with another directive: Vigilante couldn’t reveal its existence to the network or to Starr, or else he would risk being held in contempt of court or being criminally prosecuted.
“I’ve never encountered a situation like this,” Vigilante said this week. “I felt like there was a sword of Damocles over me for the year.”
Vigilante immediately enlisted the help of experienced Washington lawyers Jamie Gorelick, Aaron Zebley and Paul Wolfson from the law firm WilmerHale. They were able to debrief CNN President Jeff Zucker with limited details early on as well.
The lawyers representing CNN tried to negotiate with Justice Department attorneys, as would be typical in response to a broad order like this. But the prosecutors weren’t interested in narrowing what they sought, Vigilante said.
Vigilante was not allowed to learn the target of the probe, what reporting of Starr’s was under scrutiny or even when the investigation first began.
“In short, all the tools lawyers use every day to navigate these situations were refused to us,” Vigilante said.
CNN first went to court in September 2020 seeking to quash or narrow the order. During a closed-door hearing via video conference on October 7, federal Magistrate Judge Theresa Buchanan in Virginia told the Justice Department to narrow its request. Yet prosecutors returned to her court two days later, confidentially sharing an affidavit – that CNN could not see – that included classified information and convinced Buchanan to allow the order to move forward.
By November, CNN moved to appeal.
At an appeal hearing on December 16, a new judge, US District Judge Anthony Trenga of the Eastern District of Virginia, sided with CNN. In response to the DOJ’s argument for internal emails, the judge remarked, “The requested information by its nature is too attenuated and not sufficiently connected to any evidence relevant, material, or useful to the government’s ascribed investigation, particularly when considered in light of the First Amendment activities that it relates to,” according to Vigilante.
“This was the first characterization of the evidence we had seen, and it was stunning,” Vigilante said Wednesday.
CNN’s lawyers attempted to resolve the matter, yet on January 15, five days before the Biden administration took over, the Justice Department again asked Trenga to reconsider.
It was the same day the US attorney overseeing the investigation in Virginia, Zachary Terwilliger, left his post and as other top officials departed the Trump administration. Prosecutors from the Justice Department’s National Security Division, which is still led by Trump appointee John Demers, were also involved in the order and investigation.
On January 26, a resolution was reached. The Justice Department agreed to a much narrower disclosure and agreed that the July order would no longer be in effect going forward. This resolution opened the door for Starr to be involved in advance if there were any further requests.
In May, the Justice Department notified Starr of the seizure of her communications. In that letter, CNN became aware for the first time that the Justice Department had also obtained records related to Starr’s phone numbers and personal email account. None of those accounts were held by CNN or its parent company AT&T.