President Donald Trump’s subpoenas of The New York Times has been widely criticized for potentially violating the First Amendment, to the point where the prosecutors trying to force out the publication’s sources on weaknesses with Trump’s Qatari-gifted jet have been threatened with losing their Bar license. Now a recent report reveals a judge presiding over that case has humiliated a prosecutor trying to win it.
“The Times swiftly moved to quash the subpoenas, arguing that they were issued in a bad faith effort to harass and intimidate the journalists,” reported Lawfare's Anna Bower on Tuesday. “What’s more, the newspaper contended that the government hadn't come close to meeting the standard set out in New York Times v. Gonzales, the Second Circuit precedent establishing that prosecutors seeking a reporter's confidential sources must show, among other things, that the information can't be obtained by other means.”
Bower added, “The Justice Department, in response, didn't ask the court to deny the motion outright. Instead, it asked the court to hold the subpoenas in abeyance for two weeks while it pursued additional investigative steps—steps that, the government suggested, might bear on the scope of the subpoenas and on whether the Gonzales factors could ultimately be satisfied.”
She then discussed Judge Arun Subramanian, who blasted the government for failing to rise to the Gonzales standards.
“Given that the government has asked to hold the subpoenas in abeyance while it pursues further investigative steps, is the government willing to just withdraw them?” Bowers asked U.S. Attorney for the Southern District of New York Sean Buckley.
But Buckley said the government believes the ‘appropriate measure’ is to hold the subpoenas in abeyance while it takes unspecified additional investigative steps. In other words: the government wants to put enforcement of the subpoenas on pause rather than withdraw them entirely.
Subramanian then reportedly interjected, “[Let me] stop you right there. So the answer to my question is 'no'?” After some back and forth with Buckley, the government conceded it could not rise to that standard.
Subramanian then quoted from the Justice Department’s own filing, that to overcome the qualified reporter’s privilege recognized in Gonzales, the government must show that the information it wants is not obtainable from other sources.
"You agree, right?" the judge asked aloud. But Buckley had to acknowledge that Subramanian was correct, adding that he believed the steps have now been achieved even though they had not when the subpoenas were first issued.
“It’s the kind of admission that tends to end an argument before it starts, and Subramanian treats it that way,” Bowers reported. “‘Seems like you've got two options,’ he says to Buckley. ‘Either we can quash the subpoenas or you could withdraw the subpoenas.’”
The judge was similarly dismissive of the rest of the government's position because of its failure on that key question.
“Asked if he has anything to add, Buckley allows himself one small act of defiance: the government disputes any suggestion of bad faith, he says.
And that's where Buckley left it, Bowers reported.
