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...…
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."…
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.

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More from @mattzap

21 Jan
The Biden administration has tapped a whole slate of folks to serve in acting capacities at the Justice Department while their nominees await confirmation. Here are the names we know so far:
The acting AG is Monty Wilkinson. He had most recently been working as a human resources official at the department, and before that, worked as a counselor in Eric Holder's office and as the head of the Executive Office Office for U.S. Attorneys.…
The acting deputy AG is John Carlin. He was head of the Justice Department's National Security Division in the Obama administration and had been a lawyer in private practice at Morrison & Foerster. He's also a former chief of staff to Robert Mueller.
Read 23 tweets
17 Sep 20
Barr delivering a broadside to career prosecutors tonight, & making the case that the AG intervening in cases is appropriate and proper. Says letting junior people set agenda "might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency.”
Of FBI agents, Barr says, "These people are agents of the attorney general ... whose agents do you think you are? I don't say this in a pompous way. But that is the chain of authority and legitimacy in the Department of Justice."
Barr argues that politically appointed leaders (like himself) are accountable to POTUS & Congress. Line prosecutors are not. And they have political views, too. "The Justice Dept. is not a Praetorian guard that watches over society, impervious to the ebbs and flows of politics."
Read 8 tweets
5 Aug 20
Like Rod Rosenstein, former DAG Sally Yates says she wouldn't have signed Carter Page FISAs if she knew of the errors uncovered by the IG. "If I had known that it contained incorrect information, I certainly wouldn’t have signed it."
Also of note: Yates has been quite critical of Flynn. She said his call with Kislyak "essentially neutered" the Obama administration's attempt to deter Russia from election interference with sanctions.
She said again she was upset with how Comey dispatched agents to interview Flynn w/o coordinating with Justice. Asked if Comey had gone "rogue," she said "You could use that term, yes." But she says law enforcement had legitimate basis to interview Flynn.
Read 13 tweets
28 May 20
AG spox tells @seanhannity that Bill Barr has appointed another US Attorney to probe issue of interest to POTUS. At Barr request, @USAttyBash will look at “unmasking.” AG spox notes unmasking “inherently isn’t wrong,” but “frequency” & “reasoning behind unmasking” can problematic
In total for Trump admin...
US Atty Huber tapped to investigate Clinton & other GOP concerns
US Atty Durham to investigate Russia investigators
US Attys Donoghue & Brady to handle Ukraine/Giuliani
US Atty Jensen to probe Flynn & other DC cases
US Atty Bash to explore “unmasking”
This doesn’t count, after public Trump request, expansion of Justice Dept. IG investigation of Russia probe…
Read 6 tweets
13 May 20
Asked on Fox News last night about the letter from more than 2,000 former Justice employees calling on AG Barr to resign, a DOJ spokeswoman said: "I don’t think anyone’s losing any sleep over it at the Department of Justice."…
The spokeswoman, @KerriKupecDOJ, also confirmed John Durham is looking at the issue of "unmasking" and that, if relevant, he's consider the list ODNI just gave Justice. But Kupec said it will be up to ODNI to release that list, not Justice.
"They are the owner of this document, so if they want to release it, they are free to do so, but it’s not ours to release," Kupec told Fox News. Some background:…
Read 4 tweets
21 Apr 20
In interview with @hughhewitt, AG Barr says "the idea that you have to stay in your house is disturbingly close to house arrest." But he quickly adds, "I’m not saying it wasn’t justified," & talks extensively about balance between powers during emergency & constitutional rights
Here is the full transcript:…
Unrelated to coronavirus, Barr also offered a bit about the Durham investigation. He says the investigation remains on track and - b/c it doesn't target a political candidate - suggests it wouldn't be impacted by rules discouraging public steps in a case close to an election.
Read 4 tweets

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