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Deadline Legal Blog-Trump DOJ seeks control over search of Washington Post reporter's devices
A judge previously declined to leave “the government’s fox in charge of the Washington Post’s henhouse.”
Link to tweet
https://www.ms.now/deadline-white-house/deadline-legal-blog/trump-doj-hannah-natanson-appeal
The Justice Department escalated its bid to search a Washington Post reporter’s electronic devices pursuant to a warrant, seeking to overturn a magistrate judge’s order that the court — not the government — lead the initial review.
In a court filing Tuesday, the DOJ said it wants a judge in the Eastern District of Virginia to vacate Magistrate Judge William Porter’s order, which he said he reached in refusing to leave “the government’s fox in charge of the Washington Post’s henhouse.”
The DOJ obtained a search warrant for reporter Hannah Natanson’s devices as part of an investigation into Aurelio Luis Perez-Lugones, who was charged with unlawfully retaining national defense information. The government said he gave Natanson top secret and other classified information that later appeared in her published articles.
Perez-Lugones was charged in Maryland. The litigation over Natanson’s devices is proceeding in Virginia because the FBI seized them from her home there during a January search. It took two laptops, a mobile phone, a portable drive, a recording device and an exercise watch. In a sworn declaration later that month, Natanson said the seizure of all her devices “has eliminated my ability to collect information and publish news stories.”
In his Feb. 24 ruling, which the DOJ is challenging, Porter said the case presented difficult legal issues, sitting at “the intersection of the government’s compelling interest in prosecuting the unlawful disclosure of classified national security information and a working journalist’s First Amendment rights.” .....
The DOJ also identified several specific issues with a court-led review, including a lack of expertise on the court’s part in spotting classified information, as well as the risk that the judge or other court personnel reviewing sensitive materials could lead to the unintentional dissemination of classified information. The DOJ emphasized that it wasn’t criticizing the judge’s reliability but maintained that the risk remained inherent in the judge’s proposed method of review.
The government specified that it wants to use a “filter team” of personnel who are technically separate from the prosecution team. The filter team would screen for privileged materials that are outside the scope of the warrant and only send information within the scope of the warrant to the prosecution team.
In the ruling that the DOJ is challenging, Porter wrote that the concern that even such a theoretically independent review within the government “may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.”
In a court filing Tuesday, the DOJ said it wants a judge in the Eastern District of Virginia to vacate Magistrate Judge William Porter’s order, which he said he reached in refusing to leave “the government’s fox in charge of the Washington Post’s henhouse.”
The DOJ obtained a search warrant for reporter Hannah Natanson’s devices as part of an investigation into Aurelio Luis Perez-Lugones, who was charged with unlawfully retaining national defense information. The government said he gave Natanson top secret and other classified information that later appeared in her published articles.
Perez-Lugones was charged in Maryland. The litigation over Natanson’s devices is proceeding in Virginia because the FBI seized them from her home there during a January search. It took two laptops, a mobile phone, a portable drive, a recording device and an exercise watch. In a sworn declaration later that month, Natanson said the seizure of all her devices “has eliminated my ability to collect information and publish news stories.”
In his Feb. 24 ruling, which the DOJ is challenging, Porter said the case presented difficult legal issues, sitting at “the intersection of the government’s compelling interest in prosecuting the unlawful disclosure of classified national security information and a working journalist’s First Amendment rights.” .....
The DOJ also identified several specific issues with a court-led review, including a lack of expertise on the court’s part in spotting classified information, as well as the risk that the judge or other court personnel reviewing sensitive materials could lead to the unintentional dissemination of classified information. The DOJ emphasized that it wasn’t criticizing the judge’s reliability but maintained that the risk remained inherent in the judge’s proposed method of review.
The government specified that it wants to use a “filter team” of personnel who are technically separate from the prosecution team. The filter team would screen for privileged materials that are outside the scope of the warrant and only send information within the scope of the warrant to the prosecution team.
In the ruling that the DOJ is challenging, Porter wrote that the concern that even such a theoretically independent review within the government “may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.”