The Justice Department said in court Wednesday that it plans to appeal a judge’s decision that blocked the government from searching through a Washington Post reporter’s electronic devices as part of a leak investigation.
A federal prosecutor told Magistrate Judge William Porter that he would probably ask a district judge in Virginia to review the decision, which is standard protocol in an appeal of a magistrate judge’s ruling.
Justice Department trial attorney Christian Dibblee did not say when the appeal would land, but the government has about 14 days from the magistrate judge’s Feb. 24 decision to file its appeal.
In his decision, Porter rejected the government’s request to search through Post reporter Hannah Natanson’s seized electronic devices and ruled that the court, instead, would be responsible for searching them.
Porter convened the hearing Wednesday to discuss the logistics and parameters of the court’s search. If the Justice Department appeals his decision, the court’s search would probably be put on hold until the appeal is settled.
Still, Porter said he wanted to continue devising a plan with both sides until he is told to put it on pause. He said it’s critical to move expeditiously with the search so that the government can return the devices to Natanson and she can continue her job as a journalist.
The search must also be done quickly, Porter said, so that the government contractor who was charged with leaking information to Natanson can receive the materials as part of his court proceedings.
Porter acknowledged how rare it is for the government to seize a reporter’s devices and said he has little precedent to work from as he devises a plan to search the materials.
“As it turns out, there are very few footsteps for us to follow,” Porter said. “We’re blazing a new trail.”
The government executed its unprecedented search of Natanson’s home in Virginia on Jan. 14. 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 Luis 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.
Federal prosecutors have said 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 team would then hand over the responsive information to prosecutors.
But attorneys for Natanson and The Post said that allowing the government to search through the reporter’s phone could compromise the identities of more than 1,200 government sources and have a chilling effect on any future sources.
Natanson wrote in a declaration to the court last month that she typically receives dozens to upward of 100 tips from sources per day on Signal, a secure messaging app. Since the seizure, the number of tips has fallen to zero.
Porter wrote in his opinion last month that the government’s interests are at odds with the freedom of the press and that allowing the Justice Department to conduct the search could risk exposing Natanson’s 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 Justice Department said Wednesday that Natanson’s devices are in a protected FBI facility in Manassas. The judge said he would prefer to review the materials in a protected facility — known as a SCIF — in his Alexandria courthouse in the Eastern District of Virginia.
Attorneys for The Post said they also would prefer more neutral grounds than the FBI facility.
One of the major questions left unanswered at the hearing is what would happen if the court finds additional classified materials as it searches Natanson’s phone beyond the ones that are directly responsive to the search warrant tied to the government contractor’s case.
Porter said he wants to search the devices only for the period that is responsive to the search warrant. He also asked the government to provide some relevant search terms to help him narrow his search.
Dibblee, the government attorney, said, however, that the government would want to retain any additional classified materials found on the devices.
“It would be contraband and cannot be returned,” he said.
Porter asked both parties to submit filings detailing how they think the court’s search of the devices should unfold. He asked the Post attorneys to speak with Natanson about the “file architecture” of her devices so he can determine how best to structure his search.
A potential appeal from the government could shift Porter’s March 18 deadline.
“We have to take it as it comes,” the judge said. “This likely won’t be our last get-together.”
It is exceptionally rare for law enforcement officials to search reporters’ homes. A 1980 federal law limits the government’s ability to conduct searches of a reporter’s work. In addition, 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 articles around the U.S. capture of Venezuelan leader Nicolás Maduro in January.
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