When the news broke that U.S. attorney and nominee for director of national intelligence Jay Clayton subpoenaed New York Times journalists whose reporting embarrassed the president, press freedom advocates were quick to criticize the Justice Department for weaponizing the grand jury process. They also questioned the timing of the subpoenas, which Clayton issued just two days after the Times published its story on security concerns involving President Trump’s Qatari-gifted Air Force One.
It was clear from the start that the subpoenas were a form of retribution, but after a deluge of revelations regarding the handling and nature of those subpoenas surfaced this week, a federal judge reportedly grilled Justice Department lawyers at a U.S. District Court hearing on Thursday about the “inadvertent errors” they admittedly made. The Justice Department is now withdrawing its subpoenas. Judge Arun Subramanian, who presided over the hearing, said the government may reissue them, so long as it complies with the appropriate procedures.
Read: Clayton’s Trump loyalty becomes a problem for warrantless spying
There is little indication prosecutors followed department regulations in filing the subpoenas in the first place. This hasn’t hindered Clayton’s career advancement, but it may limit the tools he’ll have as the nation’s intelligence chief.
On Tuesday, all nine Republican members of a Senate Select Committee on Intelligence panel clinched a vote to advance Clayton’s nomination for director of national intelligence (DNI). Senate Majority Leader John Thune (R-SD) filed cloture on said nomination the following day, meaning the full Senate will likely vote on whether to confirm Trump’s pick for the top intelligence job next week. The nomination will only need a simple majority, and the 9-8 party-line committee vote suggests Clayton may fare similarly well in the coming days.
Democratic members of the panel did not need to look far for a good reason to vote against advancing the nomination, as Clayton repeatedly refused to say whether Joe Biden won the 2020 election at his confirmation hearing last week. In a statement fresh off the panel vote, Sen. Ron Wyden (D-OR) said there are credible allegations that Clayton “provided false testimony” about the subpoenas of Times journalists, which Wyden characterized as “intimidation subpoenas.”
There is little indication prosecutors followed department regulations in filing the subpoenas in the first place.
Clayton testified that “the procedures that we have in place to protect the First Amendment and protect the freedom of the press and not result in intimidation of journalists and the like were followed.” Counsel for the Times also questioned the accuracy of Clayton’s testimony in their motion to quash the subpoenas.
As it turns out, the inquiry was not limited to the July 10 grand jury subpoenas served to Times journalists Julian E. Barnes, Eric Lipton, Tyler Pager, and Eric Schmitt at their homes. The Justice Department also subpoenaed the journalists for their phone and text messaging records on July 14 and July 16, with the latter being accompanied by a non-disclosure order. According to counsel for the Times, the “identifiers” used by the Justice Department to seek those records yielded phone numbers belonging to one journalist’s mother and two of the journalists’ spouses.
Counsel for the Times argued that the Justice Department “did not even attempt to comply with its own regulations” in issuing both the grand jury and phone provider subpoenas. “Most glaringly,” counsel said, “the government failed to provide notice until more than a week after the first phone provider subpoenas were served and after the journalists had already moved to quash the testimonial subpoenas.”
They further asserted “there is no conceivable basis” for the government failing to provide advance notice. The only reason the Justice Department informed counsel of the existence of the phone provider subpoenas was because “prosecutors preparing the opposition to the motion to quash realized that the phone records subpoenas are ‘relevant’ under ‘Second Circuit decisions.’”
In a filing Clayton signed and submitted to Judge Subramanian on Monday night, the U.S. attorney appeared to willfully neglect the mountain of evidence suggesting that the Justice Department flouted internal procedures. Much like in his testimony before the Senate Intelligence Committee, one of the subheadings in that filing states “the government did and continues to comply with department regulations.”
If it did, then why in that same filing did the Justice Department place a two-week hold on the subpoenas?
“It’s one of those situations where the only available explanations are malice and incompetence,” Seth Stern, chief of advocacy at Freedom of the Press Foundation, told the Prospect. “He is either lying when he claims to have followed the procedures, or his reading comprehension is so poor that he thinks he actually did follow the procedures.”
Of course, that two-week hold is now null and void. According to Stern, the bar to subpoena journalists, both under the Justice Department’s own policy and applicable First Amendment law, is a high one. “That’s a process that takes time [and] certainly can’t be completed in two days, so it was infeasible from the beginning,” he said.
Clayton will likely be fine in a Senate floor vote. But intelligence hawks like Sen. Mark Warner (D-VA), vice-chair of the Senate Intelligence Committee, and Rep. Jim Himes (D-CT), the ranking member of the House Permanent Select Committee on Intelligence, might want to start thinking about how to Clayton-proof DNI.
Both Warner and Himes have been sounding the alarm about Trump’s election interference claims. For his part, Himes spoke with conviction about the subpoenas of Times journalists in a July 12 interview with CNN’s Jake Tapper, criticizing the administration for “using the tools of the government to attack one of the fundamental cornerstones of our democracy.”
As much as it may pain them to admit it, the only way to preserve democracy and Americans’ constitutional rights is through meaningful reform, starting with Section 702 of the Foreign Intelligence Surveillance Act (FISA), civil liberties advocates say. While intelligence hawks like Warner and Himes have been trying to extend Section 702 for months, and were hoping initially that Clayton’s appointment would unlock an impasse over the provision, Clayton showing his true colors complicates that effort.
“Clayton’s actions… are indicative of what kind of steward he will be over the immense surveillance powers of the intelligence community,” said Amanda Beckham, government relations director for Free Press Action. “Congress needs to implement meaningful reforms to Section 702… to meaningfully protect Americans from invasive government spying.”
