In October 2017, Sen. Ron Wyden asked the Justice Department for information about when the department had used subpoenas, search warrants, or other law enforcement tools to collect journalists’ communications records in the past five years.
The department’s response letter dated March 5, 2018, obtained by BuzzFeed News, listed instances from “January 2012 to the present.” Not included: the seizure of New York Times reporter Ali Watkins’ email and phone records.
The department’s letter to Wyden predated the revelation last month that investigators had seized Watkins’ records as part of an investigation into former Senate Intelligence Committee staffer James Wolfe. According to the Times, Watkins, a former BuzzFeed News reporter, learned in February via a letter from the Justice Department that her records had been seized — appearing to put her case within the timeframe identified by the Justice Department in its March letter to Wyden.
A Justice Department spokesperson did not immediately return a request for comment on Wednesday. A spokesman for Wyden declined to comment.
Wyden’s October letter to Attorney General Jeff Sessions was prompted by a press conference Sessions held in August, when he vowed to crack down on leaks; at the time, Deputy Attorney General Rod Rosenstein said the department was reviewing its processes for seeking and seizing journalists’ records.
Wyden’s request to the Justice Department was twofold: First, he asked for information about how many times in the past five years the Justice Department had used subpoenas, search warrants, or other law enforcement tools to seek journalist communication records. Second, he asked if the department had changed internal guidelines adopted in 2015 for how the department should handle investigations that involve reporters.
Assistant Attorney General Stephen Boyd, who leads the department’s Office of Legislative Affairs, sent a response to Wyden dated March 5. Boyd wrote, “The Department takes very seriously the important role of the free press in our nation.” He said there had been no changes to the internal guidelines since Jan. 20, 2017.
From “January 2012 to the present” — the letter did not specify if that meant March 5, when the letter was stamped, or another date — Boyd identified two instances in which the Justice Department used law enforcement tools to gather communications records, geolocation information, or the contents of communications from reporters. The first was in 2013, during a national security leaks investigation. The letter did not provide details, but it appeared to refer to the subpoenaing of phone records of Associated Press journalists, which the AP revealed in May 2013. The department faced significant criticism after those subpoenas came to light, prompting Attorney General Eric Holder to adopt new procedures.
The second instance listed in Boyd’s letter was in 2014, when the department subpoenaed New York Times reporter James Risen to testify in the trial of former CIA officer Jeffrey Sterling; Risen testified at a pretrial hearing, Boyd noted, but ultimately was not called at trial.
According to a source familiar with the investigation, the letter to Watkins in February stated that her records had been seized pursuant to “legal process” — it did not specify if investigators used a subpoena, search warrant, or other law enforcement tool — and said that the seized records did not include the contents of her communications.
Justice Department spokeswoman Sarah Isgur Flores previously confirmed to BuzzFeed News that Watkins’ records were subpoenaed under the department’s guidelines for collecting information from reporters.
Watkins’ attorney Mark MacDougall declined to comment.
Wolfe was charged last month with lying to the FBI about his contacts with reporters. He was not charged with leaking classified information, although the charging papers suggest he disclosed nonpublic information. Wolfe pleaded not guilty to the charges, and his lawyers have said they will “vigorously defend Mr. Wolfe against this unfair and unjustified prosecution.”
According to the indictment, FBI agents told Wolfe at an Oct. 30, 2017, meeting that they were investigating the unauthorized disclosure of classified information provided to Senate Intelligence. On Dec. 15, he participated in a voluntary interview with the FBI and denied contacts with reporters other than a person referred to as “Reporter #2,” who has been identified as Watkins. Wolfe and Watkins had been in a romantic relationship and exchanged thousands of messages, according to the indictment. Wolfe at the time denied other contacts with reporters, and denied providing classified or other nonpublic information. Prosecutors allege this was a lie, and that he did have numerous contacts with multiple reporters.
According to the Times, the government secretly seized years of Watkins' phone and email records as part of its investigation; she was not notified until after they had obtained her information.
The Justice Department under Holder adopted additional protections for journalists following the AP surveillance controversy. The department’s internal manual requires prosecutors in most cases to get permission from the attorney general before subpoenaing a journalist or using a subpoena to seize a reporter’s records from a third party, such as a telecommunications or email service provider.
If the attorney general does authorize a subpoena to a third party, the manual says the journalist should be given notice “unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”
Emma Loop contributed to this report.