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How The Justice Department Uses ‘Law Enforcement Tools’ Against Journalists

Attorney General Jeff Sessions authorized the Justice Department’s attorneys to apply for a warrant in 2017 to search freelance journalist Aaron Cantú’s phone.

Investigators at the Justice Department believed Cantú “incited” violence and acted in “concert” with protesters accused of “destroying property and menacing bystanders” in Washington, D.C., on January 20, when President Donald Trump was inaugurated.

“Law enforcement authorities intervened and arrested the freelance journalist, among others, and seized his smartphone, which investigators believed contained evidence of the freelance journalist’s coordination with other protesters,” a 2017 annual report from the Justice Department briefly describes. Investigators decided he likely committed crimes while engaged in newsgathering.

Charges against Cantú and others were dismissed, as the #J20 cases collapsed and it became clear that prosecutors withheld evidence.

This is one of several examples of the Trump administration questioning, arresting, or charging journalists in its first year in office. It also is one example of the administration seizing the records of members of the news media.

Changes to “news media guidelines,” which were implemented by Attorney General Eric Holder, committed the Justice Department to publishing reports on how it uses “law enforcement tools” against journalists.

The Reporters Committee for Freedom of the Press (RCFP) concluded the “overall number of subpoenas and applications for court orders or search warrants” do not appear to have “fluctuated much in the last four years.”

“Subpoenas, applications for court orders or search warrants, questioning, arrests, or charges authorized by the deputy assistant attorney general for the Criminal Division under the PPA’s ‘suspect exception’ increased from zero in 2014, to two in 2015, and to four each in 2016 and 2017.”

In an editorial for the Santa Fe Reporter, Cantú detailed what it was like to be criminalized as an “enemy of the people.”

“To my knowledge, the feds were never able to crack into my phone thanks to strong encryption—though they made clear that they were specifically interested in me, declaring in one motion from last October [2017] that they were undertaking ‘additional efforts’ to get my data,” Cantú wrote. “But I was sufficiently terrified by other fishing expeditions, including subpoenas issued to Apple, Facebook, and possibly Twitter for communications between and among co-defendants.”

“I never received a notice from any of these companies that my accounts had been subpoenaed—though apparently, they do not have to notify you or can be gagged from doing so—but others did, and I still treat my online presence as if it’s bugged.”

The Justice Department’s efforts against Cantú constituted a chilling attack on the First Amendment. He never expected to be charged with eight felonies for reporting on a “confrontational protest.” Nor did he imagine covering the inauguration protests would put him at risk of potentially serving decades in prison.

Another case mentioned in the 2017 report involves New York Times reporter Ali Watkins, who had her records seized when the government launched a leak investigation into James Wolfe, former director of security for the Senate intelligence committee. He pled guilty to lying to the FBI about his interactions with reporters.

Wolfe was in a relationship with Watkins, and the Justice Department applied for “historical, non-content information” related to her cell phone. That means, as RCFP notes, the Justice Department potentially collected cell-site information and were able to uncover details related to news gathering that had nothing to do with the case. She was working on national security stories so any number of confidential sources may have been compromised.

The Justice Department issued subpoenas to obtain “years of customer records and subscriber information” from companies, including Google and Verizon. The records included details from messages Watkins sent with her university email account when she was an undergraduate. They also targeted communications sent through “anonymizing message applications,” like Signal and WhatsApp.

It was not until February 2018 that Watkins was notified the government had seized her records.

“Seizing a journalist’s records sends a terrible message to the public and should never be considered except as the last resort in a truly essential investigation,” declared Bruce Brown, RCFP executive director.

Part of the Justice Department’s news media policies required the Attorney General to approve of an interview, even if a journalist is willing to talk to FBI agents. One example in the 2017 report highlights an instance when a journalist reported on alleged criminal conduct, was suspected of alleged involvement in the criminal conduct, and spoke to government agents about their newsgathering.

Also, when a reporter suspects someone is engaged in “cyber stalking,” the Justice Department must apply for a warrant to search that person’s records. Kurt Eichenwald accused a man of sending him a tweet that was meant to induce an epileptic seizure. The federal government was involved in this somewhat bizarre case until federal charges were dropped so a case at the state level in Texas could be pursued.

The 2016 annual report (when President Barack Obama was still in office) briefly describes how the Justice Department issued a subpoena to former Los Angeles Times reporter Robert Faturechi. He was forced to testify at the trial of former Los Angeles County Sheriff Leroy Baca, who was accused of charges related to a conspiracy to obstruct an FBI investigation into prisoner abuse and other corruption at the Los Angeles County Jail.

Baca, as well as the Los Angeles Times, viewed the subpoena as government overreach. “If sources view me as a potential investigative tool for the government, criminal defendants or private litigants, they may decline to provide information to me, impeding my ability to gather and provide information to the public about matters of significant public concern,” Faturechi contended.

Faturechi was unable to stop prosecutors from forcing him to testify about a 2011 interview with Baca, but  they never caved. “Our attorneys successfully fought back to ensure I would reveal absolutely nothing about anonymous sources or confidential materials,” according to Faturechi.

The report from 2016 additionally highlights the investigation into the standoff at Cliven Bundy’s ranch. Peter Santilli, a right-wing radio host, was accused of using his show to recruit people from militias to arm themselves and resist the Bureau of Land Management’s efforts to remove cattle owned by Bundy from public lands.

It is not mentioned in the report, but the FBI conducted an elaborate undercover operation to prosecute individuals involved in the Bundy standoff. Agents posed as journalists. They created a “fake film production company” and tricked people into doing interviews to collect incriminating evidence. A federal judge found “flagrant misconduct” was committed, and although Santilli pled guilty to a crime, Bundy and his sons escaped prosecution after a mistrial.

On at least one occasion, the Justice Department in 2016 sought communications of a journalist after they were abducted overseas. That required court orders and a search warrant.

“In an investigation concerning breach of security during a political protest, a United States Attorney authorized the issuance of a subpoena to a news media entity for broadcast footage of the security breach. The news media entity expressly agreed to provide the requested footage in response to a subpoena.”

There are no specific details so it is difficult to figure out what protest was the target of this investigation.

When local news affiliate, KMOV-TV in St. Louis chose to challenge a subpoena, the Justice Department withdrew the subpoena. Prosecutors were pursuing a case against police officer Steven Blakeney for allegedly violating the “civil rights of a political candidate by orchestrating a fake arrest.” Reporter Lindsey Katz apparently captured the “false arrest” on camera.

At the end of the 2017 report, it is noted that 113 “news media consultations” took place. It also is noted that 14 “friendly subpoenas,” were issued—as in the news media agreed to provide the information. (There were 22 “friendly subpoenas” in 2016.)

There are no details given as to what constitutes a “news media consultation.” This is new, when it comes to the Justice Department’s documentation. RCFP requested more information.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."