A press freedom organization has filed a disciplinary complaint with the Virginia State Bar against a federal prosecutor who applied for a warrant last month to search the home of a Washington Post reporter as part of a leak investigation.
The group, Freedom of the Press Foundation, cited the failure of the prosecutor, Gordon D. Kromberg, to alert the magistrate judge who approved the search about the Privacy Protection Act of 1980, which limits searches for journalistic work product.
“The omission could not have been a mere oversight — the warrant in question was, predictably, a subject of national news, given that raids of journalists’ homes during investigations of alleged leaks by government personnel are, according to experts, unprecedented,” Seth Stern, the foundation’s chief of advocacy, wrote in the complaint.
The Justice Department press office and Mr. Kromberg did not respond to a request for comment.
The letter cited comments by three law professors who specialize in legal ethics, quoted in a New York Times article that was published on Thursday. They had said that if Mr. Kromberg knew about the 1980 law, he was obliged by Virginia’s rules of professional conduct to disclose the existence of adverse authority in the application materials he submitted so the judge could evaluate how it applied.
The Privacy Protection Act says “it shall be unlawful” for the government to search for and seize journalistic work product unless the reporter is personally suspected of committing a crime to which the materials relate.
The statute also says the act of possessing the material itself cannot be that crime, but it lists two exceptions: if the crime violates a law against child sexual abuse imagery or the Espionage Act, which criminalizes the unauthorized retention and dissemination of national security information.
In the search of the home of the Post reporter, Hannah Natanson, the Justice Department was conducting an Espionage Act investigation into Aurelio Perez-Lugones, a government contractor accused of leaking classified information to her. The warrant was approved by William B. Porter, a magistrate judge in the Eastern District of Virginia.
Lawyers for The Post and Ms. Natanson have filed a lawsuit demanding the return of her devices and data. They are arguing that the Privacy Protection Act makes it illegal, at a minimum, for the government to review her reporting work product that is unrelated to the investigation of Mr. Perez-Lugones. (Ms. Natanson, who covers the federal bureaucracy, wrote in December that 1,169 officials across the executive branch had reached out to her during the first year of President Trump’s second term.)
Another legal issue related to the search and the Privacy Protection Act is an untested First Amendment question: whether ordinary news-gathering activity can constitutionally be criminalized under the Espionage Act.
Congress enacted the Espionage Act in 1917. It has been used against spies for generations, and especially in the 21st century, prosecutors have also applied it to officials and contractors with security clearances who leak classified information.
But in part because applying it to journalism would raise First Amendment issues — that part of the Constitution says Congress shall make no law abridging the freedom of the press — the government has never charged traditional reporters with violating it for ordinary news gathering activity.
(In the first Trump term, the Justice Department took the unprecedented step of charging the WikiLeaks founder Julian Assange under the Espionage Act. While Mr. Assange is not a traditional reporter, his charged actions — soliciting and publishing classified information — mirror investigative reporting activities. Mr. Assange struck a plea deal, so the constitutionality of the charges was never tested.)
There is only one known precedent of the government getting a search warrant for reporting materials as part of an Espionage Act leak investigation. In 2010, the Justice Department sought a warrant to read emails in the Google account of James Rosen, then a Fox News reporter, who had written about North Korea’s plans for a nuclear test.
In that investigation, the prosecutor submitted an F.B.I. agent’s affidavit that — unlike the materials Mr. Kromberg submitted last month — flagged the Privacy Protection Act and discussed it extensively.
The 2010 materials argued that searching Mr. Rosen’s email account fell within the act’s exception for when a reporter is suspected of a crime. The department presented facts to the judge that it said were sufficient to show probable cause that Mr. Rosen had violated the Espionage Act along with his source.
Still, the 2010 application did not raise the untested First Amendment issues of treating traditional news gathering as a criminal offense.
The judge issued a warrant approving the search. But in 2013, when the search and application materials came to light, they were treated as a scandal across party lines.
Attorney General Eric H. Holder Jr. issued a rule barring investigators from portraying reporters as criminals to circumvent the Privacy Protection Act’s ban unless they intended to bring charges. Last year, however, Attorney General Pam Bondi rescinded that rule.
Charlie Savage writes about national security and legal policy for The Times.
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