Thread by @mattzap

Interesting new disclosure today, in that CNN had been secretly negotiating for months - mostly in the Trump administration - over a Justice Dept. request for one of its journalists' records. A few points worthy of highlighting... washingtonpost.com/national-secur…

Only a few at CNN (including lawyers & President Jeff Zucker) knew about this, and they say they were bound by a court from informing the news network's journalists or even the journalist whose records were at issue: Pentagon Correspondent Barbara Starr

Back in May, The Justice Department formally notified Starr of the request, and a successful effort to get her phone records. At the time, Zucker said “CNN strongly condemns the secret collection of any aspect of a journalist’s correspondence." washingtonpost.com/national-secur…

But in January, the early days of the Biden administration, CNN had *agreed* (without, apparently, telling Starr) to turn over some of Starr's email records. The news network says it was less than what Justice Department wanted, and there are some reasons for taking such a step.

The law is generally not on news organizations' side in disputes like these. CNN was waging a fight in court, but by December, according to a newly unsealed transcript of a hearing, it was about narrowing Justice's request, not rejecting it altogether.

In that hearing, a lawyer for CNN argued the department's request was way too broad - sweeping up 34,000 email records, 26,000 of them internal to CNN/Warner Media. At one point, a CNN lawyer asked why the department didn't just work with its lawyers to "refine the investigation"

A federal prosecutor in the Eastern District of Virginia shot back that the law would allow prosecutors to just force Starr to give up her source. This step, he asserted, was actually less invasive.

Ultimately, the judge ruled CNN had to give up records, but just of contacts with government and military email accounts. And the government was only seeking non-content information, meaning they couldn't see actual email text.

Theoretically, CNN or the department could have kept fighting. But on Jan. 26, per CNN, they reached a deal where CNN would turn over a "limited" set of emails logs. And the first CNN's lawyer could tell Starr about it, per CNN, was after she got her letter on May 13.

There has been a lot of discussion about whether DOJ followed its media policy in this and other recent similar moves on WaPo and CNN. At the hearing, prosecutors argued they did. And we reported today then-AG Bill Barr approved this move & the move to get WaPo reporter records.

I don't know who approved the move to get NYT records. A court order for those came when Jeff Rosen was acting AG. Career prosecutors have insisted to Times lawyers they followed the media policies, which generally require AG approval.

That policy in some ways is moot. The department has said it won't use legal process to seek reporter records in leak cases to ID sources anymore. At a congressional hearing today, Garland reiterated that commitment in very strong terms & said a formal memo was forthcoming

WaPo, the NYT & CNN are meeting with AG Garland on Monday to talk about these issues. We'll be represented by publisher Fred Ryan, executive editor Sally Buzbee and general counsel Jay Kennedy.

While these moves started in the Trump DOJ - which contemplated trashing the old media policy to take the gloves off prosecutors (but never ultimately did), and proudly launched a crackdown on leaks - the cases were driven by career prosecutors.

In the Times case, Gregg Maisel, Tejpal Chawla, Jay Bratt and Adam Small argued the department's side. In CNN's case, Gordon Kromberg, Neil Hammerstrom, Julie Edelstein, and David Lim appeared for the government.

Those lawyers come from the U.S. Attorney's Offices in D.C. and the Eastern District of Virginia, and the National Security Division at Main Justice. The leader of the National Security Division is John Demers - a Trump appointee who Biden has held over.

Trump and his attorneys general definitely pushed a leaks crackdown. But these kind of tactics - going after reporters' records - have gone on for years, in Republican and Democratic administrations. That is because they have support among career folks.

New orgs obviously welcome a policy change, which Garland has done. But a subsequent AG can tear up a policy. A more substantive change would be Congress passing a law protecting reporters & sources, or career prosecutors deciding to care less about leaks. Neither seems likely.