WASHINGTON — The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.
In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.
Cameron Barr, The Post’s acting executive editor, said: “We are deeply troubled by this use of government power to seek access to the communications of journalists. The Department of Justice should immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.”
News organizations and First Amendment advocates have long decried the government practice of seizing journalists’ records in an effort to identify the sources of leaks, saying it unjustly chills critical newsgathering. The last such high-profile seizure of reporters’ communications records came several years ago as part of an investigation into the source of stories by a reporter who worked at BuzzFeed, Politico and the New York Times. The stories at issue there also centered around 2017 reporting on the investigation into Russian election interference.
It is rare for the Justice Department to use subpoenas to get records of reporters in leak investigations, and such moves must be approved by the attorney general. The letters do not say when Justice Department leadership approved the decision to seek the reporters' records, but a department spokesman said it happened in 2020, during the Trump administration. William Barr, who served as Trump's attorney general for nearly all of that year, before departing Dec. 23, declined to comment.
The Justice Department defended its decision to subpoena Post reporters' records as an investigative step of last resort that was not taken lightly.
“While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” said Marc Raimondi, a spokesman for the Justice Department. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
The phone records in question include who called whom when, and how long the call lasted, but do not include what was said in those phone calls. Investigators often hope such records will provide clues about possible sources the reporters were in contact with before a particular story published.
The letters to the three reporters also noted that prosecutors got a court order to obtain “non content communication records” for both reporters’ work email accounts, but did not obtain such records. The email records sought would have indicated who emailed whom and when, but would not have included the contents of the emails.
The letter does not state the purpose of the phone records seizure, but toward the end of the time period mentioned in the letters, those reporters wrote a story about classified U.S. intelligence intercepts indicating that in 2016, Sen. Jeff Sessions (R-Ala.) had discussed the Trump campaign with Sergey Kislyak, who was Russia's ambassador to the United States. Justice Department officials would not say if that reporting was the reason for the search of journalists' phone records. Sessions subsequently became President Donald Trump's first attorney general and was at the Justice Department when the article appeared.
About a month before that story published, the same three journalists also wrote a detailed story about the Obama administration's internal struggles to counter Russian interference in the 2016 election.
Entous, who now works at the New Yorker, declined to comment.
The two letters received at The Washington Post were signed by Channing D. Phillips, the acting U.S. Attorney for Washington, D.C., and John C. Demers, the head of the Justice Department's national security division. The correspondence listed five phones for which records had been seized: Nakashima's work, cell and home phones, and Miller's work phone and cellphone. The letter to Entous cited his cellphone number.
The seizure of reporters' phone records has been a controversial topic in recent years, as both the Trump and Obama administrations escalated efforts to stop leaks and prosecute government officials who disclose secrets to reporters.
In early August 2017 - days after the time period covered by the search of The Post reporters' phone records - Sessions held a news conference to announce an intensified effort to hunt and prosecute leakers in government.
“This culture of leaking must stop,” Sessions said, noting that the number of leak investigations had tripled since the end of the prior administration. That announcement seemed aimed at appeasing Trump, who had publicly complained about leaks that made him look bad, and branded Sessions “weak” on hunting leakers.
Justice Department policy dictates that investigators in leak cases should exhaust all other possible sources of information before considering trying to examine journalists' records.
During the Obama administration, the department prosecuted nine leak cases, more than all previous administrations combined. In one case, prosecutors called a reporter a criminal “co-conspirator” and secretly went after journalists’ phone records in a bid to identify reporters’ sources. Prosecutors also sought to compel a reporter to testify and identify a source, though they ultimately backed down from that effort.
In response to criticism about such tactics, in 2015 Attorney General Eric H. Holder Jr. issued updates to the rules about media leak investigations aimed at creating new internal checks on how often and how aggressively prosecutors seek reporters' records.
In response to Trump’s concerns, Sessions and others discussed changing the rules to seek journalists’ phone records earlier in leak investigations, but the regulations were never changed.