The Justice Department capitulated Thursday in its effort to compel New York Times journalists to testify before a grand jury, withdrawing subpoenas that had sparked a high-stakes clash over press freedom and government investigative overreach.
Federal Judge Arun Subramanian presided over the reversal in Manhattan, where he had repeatedly challenged prosecutor Sean Buckley on why the government had reached for subpoenas before exhausting other investigative avenues. The judge's skepticism proved decisive.
"Doesn't the law indicate that subpoenas are the last step? Not the first step but the last step?" Subramanian asked during the hearing. He emphasized that issuing subpoenas to journalists involves "profound First Amendment issues" and should be pursued only after all alternative methods have been attempted.
The subpoenas originally targeted reporters who had published stories about security vulnerabilities in Qatar's newly donated Air Force One. The Times' reporting revealed that the Secret Service had recommended President Donald Trump use the older presidential aircraft after Iran tensions escalated, partly because the new plane lacks anti-missile defenses.
Investigators sought to identify who had leaked those classified security concerns to the journalists. The Trump administration's approach was aggressive: federal agents appeared at reporters' homes to serve some of the subpoenas.
Prosecutors initially resisted the withdrawal, asking instead to place the subpoenas on indefinite hold so they could preserve the records for future use. Subramanian rejected this compromise, noting the government could always return to court with new applications if circumstances changed.
The exchange exposed other government missteps. Buckley acknowledged that prosecutors had mistakenly obtained phone records belonging to the reporters' spouses and mothers after a public database incorrectly linked the numbers to the investigation's target. "That was an error," Buckley conceded. "It was a mistake; it was not in furtherance of the investigation."
The judge warned that the government's incomplete and inaccurate court filings could result in sanctions. Subramanian indicated he would normally demand that parties explain why sanctions should not be imposed for misstatements to the court, though Buckley characterized the errors as unintentional.
David O'Neil, representing the New York Times, pushed back hard against allowing the subpoenas to remain pending. He argued the distinction between indefinitely holding and withdrawing the subpoenas was meaningless, and that the subpoenas had already chilled the reporters' work. "Given the chill these subpoenas have already produced, it is clear that having these subpoenas out there has been damaging to the reporters," O'Neil said.
The government had acted unilaterally in issuing the subpoenas and seeking phone records, O'Neil emphasized, without coordinating with the defense or the court.
Under the settlement, prosecutors agreed to abandon the subpoenas while retaining the right to seek new ones later if their investigation warrants it. Buckley said the reporters themselves are not targets, only the sources who leaked, and that the government stands ready to grant them immunity in exchange for their testimony.
David McGraw, the Times' senior vice president and deputy general counsel, hailed the reversal as validation of press protections. "We are pleased that the government finally conceded that the subpoenas violated the law, but they should never have been issued in the first place," McGraw said in a statement. "The Times and our journalists will continue to report and seek the truth without fear or favor."
The Justice Department struck a different tone, blaming Subramanian for blocking what it called core evidence in a national security probe. A department spokesperson said the judge "threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation," adding that the grand jury has a right to hear from all material witnesses. The investigation remains active, the department noted.
Subramanian closed the hearing on a lighter note, asking prosecutors whether they were watching the Hugh Jackman film "Sheep Detectives" at home and joking that the FBI would not be showing up at anyone's door. Justice Department attorneys laughed and agreed.
Author Sarah Mitchell: "This is a rare win for press freedom in an administration that has shown little patience for it, though the government's ability to return with new subpoenas keeps the sword of Damocles hanging over these reporters' heads."
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