A reporter’s home is raided, and the Justice Department is admonished for withholding information

Should a judge be expected to know when a prosecutor’s request is illegal? I would have thought so. But that turns out to be not the case with regard to a Washington Post reporter whose home was raided by the FBI last month as part of a leak investigation targeting a Pentagon contractor.

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New York Times reporter Charlie Savage reported recently that the Justice Department had failed to tell a judge that a 1980 federal law prohibited the government from seeking a journalist’s reporting materials in most instances. Because of that failure, the judge issued a warrant to search the home of Post reporter Hannah Natanson — a shocking move given that journalists are generally summoned to court and given an opportunity argue against being forced to turn over their documents.

The Privacy Protection Act prohibits investigators from seeking or taking a journalist’s documents unless the journalists themselves are suspected of breaking the law. Savage quoted Gabe Rottman of the Reporters Committee for Freedom of the Press:

By not alerting the judge to the existence of a federal law that is supposed to limit searches for reporting materials, it may have greased the skids for the judge agreeing to the warrant when otherwise the judge might have scrutinized it more carefully.

Reprehensible as the Trump administration’s conduct was, I would have assumed that the judge was obliged to know about the law whether prosecutors chose to tell him or not. But when I made that point on social media, several lawyers told me that’s not how it works. And in a follow-up published last Friday, Savage and fellow Times reporter Erik Wemple reported that the judge blasted prosecutors for breaching their ethical duty. Savage writes:

“Why didn’t you raise it?” Judge William B. Porter of the Eastern District of Virginia asked during a heated stretch of a hearing at the federal courthouse in Alexandria, Va. “It’s a threshold question in this case.”

The assistant U.S. attorney who submitted the warrant application, Gordon D. Kromberg, later conceded that he had known about the law, but also said he had been following department policy in not bringing it to the judge’s attention.

“I apologize to you,” Mr. Kromberg said.

Earlier this week Judge Porter rejected the government’s request to search Natanson’s documents and electronic devices, ruling that the court would handle that task. This is not unusual in cases involving a reporter’s confidential materials.

Although the journalists do not have a First Amendment right to protect confidential sources and documents, judges in such situations generally try to balance freedom of the press with the government’s legitimate need to investigate crimes. Porter will presumably weigh factors such as relevance and whether the same information could be gathered from non-journalistic sources.

I’m actually familiar with the Privacy Protection Act. In August 2023, local law-enforcement officials raided the offices of the Marion County Record as well as the homes of the publisher and his elderly mother and of a city official. They were allegedly looking for documents that the Record improperly possessed, but it was later learned that the paper was looking into alleged misconduct on the part of the police chief.

The raid became a national story, with no less than Nobel Peace Prize winner Maria Ressa weighing in. Compounding all of this is that publisher Eric Meyer’s mother, Joan Meyer, died the day after the raid, possibly because of the ordeal to which she had been subjected.

It turned out that the then-police chief, Gideon Cody, had obtained a search warrant but not a subpoena, as the federal law requires in the case of journalists. Sherman Smith of the Kansas Reflector reported at the time that the police acknowledged their actions were prohibited by the law — but that the department was claiming an exemption because the newspaper itself was suspected of committing a crime.

Cody is long gone, and Eric Meyer and other journalists have received millions of dollars in settlements. We can only hope that everyone involved in the Trump regime’s illegal raid is subjected to similar penalties.

More: Boston College Law School Professor Jack Lu, a former Massachusetts Superior Court judge, writes: “There are two kinds of judges, generalists and specialists. Federal District judges as in this case are generalists as are most judges. Even specialists cannot be expected to know everything including the incredibly rare occurrence of search warrants for journalists. And this is ex parte so the adversary system is not educating the judge.”

Correction: Hannah Natanson’s name now fixed.