The Justice Department’s investigative methods were aggressive but likely justifiably so and within legal bounds.
Earlier this morning, we ran my piece on the FBI’s search of the Virginia home of Washington Post reporter Hannah Natanson. The Post has provided more information in a report by its Justice Department correspondent, Perry Stein, also published this morning.
As I suspected, Natanson is not the target of the federal criminal investigation. She was reportedly told as much by the agents. In addition, Attorney General Pamela Bondi announced, in a post on X that is likely related, that at the request of the Defense Department (which, in the administration’s habit, Bondi calls “the Department of War”), the DOJ had the FBI execute a search warrant “earlier this week” at “the home of a Washington Post journalist who was obtaining and reporting classified and illegally leaked information from a Pentagon contractor. The leaker is currently behind bars.”
The search warrant should have been provided to Natanson (under Rule 41(f), Fed. R. Crim. P.); she was apparently at home during the search. The Post, moreover, has apparently reviewed the warrant affidavit. I must say, that is puzzling, especially in an investigation involving classified information. The affidavit supporting issuance of a warrant is generally filed under seal in court; it is not provided to the person living at the premises to be searched. Usually, it contains sensitive investigative information, including about informants, and is not disclosed at all unless there is an indictment as to which the seized evidence is part of the government’s proof in the case.
In any event, according to the Post’s report, the warrant affidavit says that the feds are
investigating Aurelio Perez-Lugones, a system administrator in Maryland who has a top secret clearance and has been accused of accessing and taking home classified intelligence reports that were found in his lunchbox and his basement.
The Post’s report also points out that, in April, AG Bondi rescinded a Biden-era policy that prevented investigators in leak probes from scrutinizing journalists’ phone records in attempting to identify government officials who’ve provided information to news organizations.
As explained in my earlier post, journalists do not enjoy a legally enforceable confidentiality privilege. Furthermore, there is no Fourth Amendment privacy protection for phone records, which set forth information about which phone numbers were in contact, when, and for how long (but do not relate the substance of any conversation).
Hence the Biden DOJ policy granted the media far more protection than the law requires, and Bondi’s rescission of it was well within her discretion. The Post also notes Bondi’s assurance that the Trump DOJ would search reporters’ communication records only after other investigative methods have been exhausted. This is consistent with longstanding Justice Department norms that I described in the post: the government compels information from journalists only when it is vital to the investigation of serious crimes and there are no other avenues for obtaining the information.
All that said, this is a very aggressive move. Instead of proceeding by warrant, the Justice Department could have issued a grand jury subpoena. That would have put the onus on Natanson and the Post to produce the information — including the devices — that investigators were seeking. Of course, had the DOJ gone that route, the Post would likely have tried to get the subpoena quashed in court or, at a minimum, tried to negotiate with the DOJ in order to limit the information it would produce. That would have taken weeks, if not months. From the government’s perspective, prosecutors were entitled to the information (a judge, after all, did find probable cause to issue the warrant) and wanted it quickly. When national defense information is at stake, it is not unreasonable to proceed that way.
Still, as the Post relates:
Federal agents searched [Natanson’s] home and her devices, seizing her phone, two laptops and a Garmin watch. One of the laptops was her personal computer, the other a Washington Post-issued laptop.
That amounts to more information than the DOJ would have gotten if it had subpoenaed the reporter and/or negotiated with the paper. Given the chance, the Post would have tried to narrow Natanson’s disclosure to information solely related to Aurelio Perez-Lugones, the target of the government’s investigation.
We don’t know what, if any, limitations the court put on what the government could seize from Natanson’s devices, but by the very act of searching for information pertinent to Perez-Lugones, the investigators would necessarily learn of other people — in particular, other government employees — who have provided information to the journalist.