Attorneys for The New York Times are challenging a series of grand jury subpoenas in federal court, alleging they represent an attempt to retaliate against and intimidate reporters whose work has drawn criticism from President Donald Trump. The newspaper's legal team is seeking to quash the subpoenas, which demand that journalists testify about their sources and also seek access to the phone records of reporters and some of their family members.
In a court filing, the Times' lawyers argued that the government's actions infringe upon fundamental First Amendment protections for newsgathering. They described the subpoenas as "the latest salvo in an escalating series of attacks on journalists to intimidate them from engaging in reporting that the Trump Administration openly detests."
The legal dispute originates from The New York Times' reporting on security concerns associated with a new Air Force One airplane, a Boeing 747-8 reportedly donated to the United States by the Qatari government. The newspaper, citing unnamed sources, reported that the newly commissioned aircraft lacked defensive countermeasures present on the previous model, including advanced antimissile capabilities.
Following the publication of this report, the Department of Justice issued subpoenas compelling the reporters to testify before a grand jury. Additional subpoenas were sent to telecommunications companies requesting the phone records of the reporters and certain relatives, according to court documents.
The Department of Justice has defended the subpoenas, asserting in court filings that they are necessary to identify government employees who may be leaking classified information that jeopardizes national security. Sean Buckley, Deputy United States Attorney for the Southern District of New York, stated in a filing that the articles in question presented "a substantial national security concern, including because they indicated potential leaks of classified or national defense information... 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."
However, The New York Times' attorneys contend that the subpoenas are unlawful and unconstitutional, asserting they were issued in a "bad faith effort to harass," intimidate, and retaliate against the newspaper, which they note has been a frequent target of the President's criticism. The filing suggests 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 $400 million Boeing 747-8 was donated by the Qatari royal family. The Air Force had initially estimated the cost to retrofit the plane at less than $400 million, though the total amount spent to date remains unclear. Further upgrades are anticipated.
Attorneys for The New York Times also argue that the subpoenas violate established journalistic protections, specifically referencing a three-part test affirmed by the 2nd U.S. Circuit Court of Appeals. This test requires prosecutors to demonstrate they have exhausted all other avenues for obtaining information before compelling journalists to disclose their sources.
"The timing compels the conclusion that the Government did not even try to comply with its own regulations governing media subpoenas," the Times' lawyers wrote, pointing out that the subpoenas were issued within a day of the investigation's commencement. They argue that in such a short period, the government could not have reasonably investigated potential leaks of classified or National Defense Information.
The newspaper has further accused the Department of Justice of failing to adhere to its own guidelines for notifying reporters about subpoenas and of issuing additional subpoenas even after the Times had raised legal objections to the initial ones. Court filings indicate that the Department of Justice served at least two subpoenas to phone providers after The New York Times voiced concerns about the lawfulness of the first set of subpoenas.
Federal prosecutors deny these claims, maintaining they have not violated DOJ policies, neglected initial investigative steps, or lacked a legal basis for the probe. A Department of Justice spokesperson stated earlier this month, "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."