Federal prosecutors on Thursday urged a judge to overturn a ruling barring the Justice Department from directly searching a Washington Post reporter’s electronic devices seized as part of an investigation into a government contractor accused of leaking classified materials.
The hearing in front of U.S. District Judge Anthony J. Trenga in the Eastern District of Virginia marked the government’s latest attempt to convince the court that it should have the authority to conduct a tailored search of Post reporter Hannah Natanson’s phone, computers and other devices to look for information relevant to its investigation of the contractor.
Magistrate Judge William Porter had ruled in February that the government could not search the devices, which all sides have agreed contain years of Natanson’s materials that she’s gathered covering the federal government. Instead, he ruled, the court would conduct a search on behalf of the government, citing the possibility that the Justice Department could wrongly look at more information than the warrant allows either by “neglect, by malice, or by honest difference of opinion.”
The Justice Department appealed that ruling, kicking the case to Trenga’s courtroom.
The arguments presented in court Thursday were similar to those made in previous court filings and hearings. Federal prosecutors say applying for a warrant and executing a search are core functions of the executive branch — and reporters should not be subject to what it sees as preferential treatment. The Post and Natanson have said the reporter used the devices to connect with more than 1,200 confidential government sources and searching them could chill future sources who may want to speak with the press.
Attorneys for The Post contend the warrant represented a massive overreach by the government, saying a search of a journalist’s home to seize reporting materials is unprecedented.
“The government should not receive permission to rummage through a reporter’s professional universe,” said Simon Latcovich, an attorney representing The Post.
The government asserted that it was not seeking to broadly dig through Natanson’s devices. Rather, it said it would conduct a narrow examination with a filter team, which would be responsible for sifting out information that is either protected or not compliant with the parameters of the warrant. Porter had previously denied the government’s request to conduct the search in that manner.
Trenga on Thursday seemed skeptical that Porter’s ruling would inhibit the government’s ability to build its case against the contractor. The judge said he would “get a decision shortly.” He has so far not put a pause on Porter’s ongoing efforts to hash out a detailed plan for the court to conduct the search.
After Trenga’s 45-minute hearing, Porter held a hearing of his own to continue building the plan for the court to review the seized materials. The government is in possession of Natanson’s devices, though Porter has barred investigators from accessing those devices since February.
Porter said Thursday the government could resume processing the materials— essentially getting readable copies of the information — on Natanson’s computer, Garmin watch and recording device. Prosecutors said they have been unable to access Natanson’s phone because they do not have the pin to unlock it.
The magistrate judge said that the processing could occur at FBI facilities by a team of workers walled off from other aspects of the investigation. The actual review of the materials would then fall to Porter.
Prosecutors asked Porter to halt the processing and searching of the devices until Trenga rules on the matter. Porter said he would not agree to that and wants to move fast so that prosecutors in Maryland, where the contractor faces charges, could get the information they need.
If Trenga overturns Porter’s ruling, then Porter’s effort to carry out the search would likely end.
“I’m going to keep going until someone tells me to stop,” Porter said, adding that he wanted a status update by next Friday.
The federal government executed the search of Natanson’s homein Virginia on Jan. 14. In addition to the computers, recorder, Garmin watch and phone, federal agents also seized a portable hard drive.
Law enforcement officials said it was part of their investigation into Aurelio Perez-Lugones, a systems administrator with a top-secret clearance who was indicted in Maryland in January on charges of unlawfully obtaining and sharing classified materials. President Donald Trump has referred to Perez-Lugones as “the leaker” of classified information regarding 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. The government contractor has pleaded not guilty to the charges.
The Post attorneys have argued that the search amounted to a “prior restraint” of Natanson’s materials because it prevents her doing her job as a journalist while the government has her electronic devices. Without those devices, the attorneys said, Natanson cannot access her sources and other critical work materials on her phone.
The government denied that this qualified as a prior restraint since it is not stopping Natanson from publishing articles.
“She is able to report right now if she likes,” Justice Department trial attorney Christian Dibblee said on Thursday.
The post DOJ presses for its own search of Post reporter’s phone, laptops appeared first on Washington Post.
