'Subpoenas are the last step': DOJ withdraws subpoenas targeting NYT journalists after judge's rebuke

WASHINGTON, DC: The Justice Department on Thursday, July 23, agreed to withdraw grand jury subpoenas seeking testimony and phone records from New York Times reporters and some of their family members after facing pointed questions from a federal judge about its investigative process.

The subpoenas were part of an investigation into leaks surrounding the newspaper's reporting on security concerns involving President Donald Trump's new Air Force One aircraft. The department, however, said the underlying leak investigation remains ongoing and reserved the right to seek new subpoenas in the future if warranted.

Judge questions DOJ subpoenas targeting New York Times reporters

During a hearing before US District Judge Arun Subramanian in Manhattan, prosecutors initially sought to keep the subpoenas in abeyance rather than withdraw them, arguing the records should be preserved if they became necessary later in the investigation.

Subramanian repeatedly questioned that approach, emphasizing that subpoenas directed at journalists should only be used after all other investigative avenues have been exhausted.

"Doesn't the law indicate that subpoenas are the last step? Not the first step but the last step?" the judge asked. "They are not the first thing you do; they are the last thing you do," he added, citing the "profound First Amendment issues" involved.

During the hearing, prosecutor Sean Buckley also acknowledged that investigators had mistakenly obtained phone records linked to relatives of the reporters, including spouses and, in one case, a reporter's mother, after relying on an incorrect public-source database.

"That was an error," Buckley said. "It was a mistake; it was not in furtherance of the investigation."

Subramanian also warned that inaccurate and incomplete court submissions could expose the government to sanctions, though Buckley described the errors as inadvertent. The government ultimately agreed to withdraw the subpoenas while continuing other investigative efforts.

Air Force One leak investigation remains active after subpoena withdrawal

The subpoenas were issued after the outlet published articles citing anonymous sources about security concerns involving the new Air Force One, a Boeing 747-8 donated by Qatar. The reports said the Secret Service had advised Trump to return from an international trip aboard the older presidential aircraft because the new jet lacked certain defensive capabilities. 

Following Thursday's hearing, The New York Times Senior Vice President and Deputy General Counsel David McGraw welcomed the government's decision.

"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. "The Times and our journalists will continue to report and seek the truth without fear or favor. We will not be deterred in the face of tactics like these."

The Justice Department, however, disputed the court's handling of the matter. In a statement, a department spokesperson said, "This judge threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation."

The spokesperson added that the investigation remains active, saying, "Make no mistake, this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime."