A federal judge in Virginia rejected the Justice Department’s request to search through a Washington Post reporter’s electronic devices as part of a national security leak investigation, ruling that the court would instead be responsible for conducting the search.
In a 22-page opinion, Magistrate Judge William Porter admonished the Justice Department, saying the government could not be trusted to conduct the search on its own and that prosecutors’ actions in obtaining a search warrant for reporter Hannah Natanson’s home had shaken the deference and latitude that judges typically afford to government attorneys.
The ruling Tuesday afternoon is a victory, at least in part, for The Post and Natanson, who said that allowing the government to search through her phone and laptop computer would risk exposing the identities of her sources and could have a chilling effect on future sources who wish to speak to reporters.
The court, however, did not order an immediate return of the devices to Natanson.
On Jan. 14, the federal government executed an unprecedented search of Natanson’s home in Virginia. Federal agents seized a phone, two laptops, a recorder, a portable hard drive and a Garmin watch. Law enforcement officials said the search was part of their investigation into government contractor Aurelio Perez-Lugones, a systems administrator with a top-secret clearance who was indicted in Maryland last month on charges of unlawfully obtaining and sharing classified materials.
President Donald Trump last month identified Perez-Lugones as a “leaker” who had divulged information about U.S. actions in Venezuela.
Federal prosecutors say Perez-Lugones exchanged messages with Natanson before his arrest. They acknowledged that only a small portion of the information on the devices seized from Natanson would be relevant to the case against Perez-Lugones. They asked Porter to allow a government filter team to search through the devices for relevant information. The filter team would then hand over the responsive information to prosecutors.
But Porter wrote in his Tuesday opinion that the government’s interests are at odds with freedom of the press and that allowing the Justice Department to conduct the search could risk exposing more than 1,000 of the reporter’s government sources to investigators who want to stop leaks to the news media.
“Given the documented reporting on government leak investigations and the government’s well chronicled efforts to stop them, allowing the government’s filter team to search a reporter’s work product — most of which consists of unrelated information from confidential sources — is the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse,” Porter wrote.
“The concern that a filter team may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.”
Porter also sharply criticized prosecutors for not briefing him in their search warrant application on a federal law that protects reporters against searches in many situations: the Privacy Protection Act (PPA) of 1980. Their failure to inform him about the law before he approved the warrant in the case “has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding,” he wrote.
Porter had first scolded prosecutors about this omission at a hearing on the search warrant in an Alexandria courthouse Friday. Prosecutor Gordon Kromberg, a veteran attorney in the Eastern District of Virginia, said he did not mention the law because he does not believe it applied to the case.
The law was intended to restrict the government’s ability to search a reporter’s notes and other “work product.” It says a reporter’s possessions can be seized in certain situations if investigators suspect the reporter has committed a crime or if the reporter possesses certain materials related to sensitive national security information.
The magistrate judge wrote if the government had told him about the law, it might not have changed his decision to approve the search warrant, but that he had a right to weigh its relevance in advance.
Porter said he was unaware of the law. Because it rarely comes into play and he handles a range of legal matters, he said it should not have been surprising to the government that he was unaware of it. During the week of the search of warrant, he wrote, the Justice Department had requested 46 warrants in his court.
According to Porter, the Justice Department also did not inform him that Natanson was not the target of the investigation and that he only learned that in subsequent media reports. Porter has said that he had discussions with the Justice Department over two days, including with top agency officials, before he approved the warrant.
“Even so, had the government disclosed the PPA, the Court may well have rejected the search warrant application and directed the government to proceed by subpoena instead. At the very least, it would have asked more questions. The government deprived the Court of the opportunity to make those real-time decisions,” he wrote.
It is exceptionally rare for law enforcement officials to search reporters’ homes. In addition to the 1980 law, federal regulations intended to protect a free press are designed to make it more difficult to use aggressive law enforcement tactics against reporters to obtain the identities of their sources.
Natanson covers the federal workforce and has been part of The Post’s most high-profile and sensitive coverage related to government firings, national security and diplomacy during the first year of the second Trump administration. She contributed reporting to a number of recent articles around the United States’ capture of Venezuela’s leader, Nicolás Maduro.
In December, Natanson wrote a first-person account about her experience covering the federal workforce as the Trump administration created upheaval across the government. She detailed how she posted her secure phone number to an online forum for government workers and amassed more than 1,000 sources, with federal workers frequently contacting her to share frustrations and accounts from their offices.
Natanson wrote in a declaration to the court last month that she typically receives anywhere from dozens to upward of 100 tips from sources per day on Signal. Since the seizure, the number of tips has fallen to zero.
In a statement, The Post said “we applaud the court’s recognition of core First Amendment protections.”
Natanson and The Post had argued that the seizure of her devices amounts to silencing her speech since she cannot work as a journalist without the physical devices and the sources and applications on them.
The judge agreed, but did not say in his opinion when the devices would be returned. He scheduled a status hearing next week where the timing of the court-directed search will likely be discussed.
“The Court’s genuine hope is that this search was conducted — as the government contends — to gather evidence of a crime in a single case, not to collect information about confidential sources from a reporter who has published articles critical of the administration,” Porter wrote. “The Court further hopes the record ultimately bears out the government’s representations.”
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