NYT: Trump-era DoJ seized reporters' phone records to probe Comey-related leak

(AP Photo/J. Scott Applewhite, File)

That makes Donald Trump’s administration the third in a row to seize reporters’ communication records in a leak probe. The New York Times acknowledges this toward the end of its report on the Department of Justice’s disclosure regarding four of its reporters, who wrote about James Comey’s handling of the Hillary Clinton investigation. At the heart of the probe was the publication of classified material that painted Comey’s decision to bypass then-AG Loretta Lynch in dispensing with the Clinton case in a more favorable light:

The Justice Department did not say which article was being investigated. But the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James B. Comey, then the F.B.I. director, handled politically charged investigations during the 2016 presidential election.

Discussing Mr. Comey’s unorthodox decision to announce in July 2016 that the F.B.I. was recommending against charging Hillary Clinton in relation to her use of a private email server to conduct government business while secretary of state, the April 2017 article mentioned a document obtained from Russia by hackers working for Dutch intelligence officials. The document, whose existence was classified, was said to have played a key role in Mr. Comey’s thinking about the Clinton case.

The document has been described as a memo or email written by a Democratic operative who expressed confidence that the attorney general at the time, Loretta Lynch, would keep the Clinton investigation from going too far. Russian hackers had obtained the document, but it is apparently not among those that Russia sent to WikiLeaks, intelligence officials concluded.

Mr. Comey was said to be worried that if Ms. Lynch were to be the one who announced a decision not to charge Mrs. Clinton, and Russia then made the document public, it would be used to raise doubts about the independence of the investigation and the legitimacy of the outcome.

The article appeared just a few weeks before Trump cashiered Comey as FBI director, and set off a special counsel probe that would eat up most of his presidency. Russians had come into possession of a document which might have painted Lynch as quashing any prosecution of the Clinton probe, and the NYT’s team reported that Comey worried about what would happen if the Russians leaked it in the summer of 2016:

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation. …

Mr. Comey’s defenders regard this as one of the untold stories of the Clinton investigation, one they say helps explain his decision-making. But former Justice Department officials say the F.B.I. never uncovered evidence tying Ms. Lynch to the document’s author, and are convinced that Mr. Comey wanted an excuse to put himself in the spotlight.

The problem was that no one outside of the FBI should have read this document at all. It had been classified, perhaps as part of the effort to blunt Russian hacking, although the justification for the classification seems obscure at this point. Still, the document was not supposed to get out, and the fact that it did — and in a manner which painted Comey in the most favorable light — made the FBI and Department of Justice mighty suspicious at the time. What if it came from Comey’s most prominent defender — Comey himself?

The FBI’s suspicions didn’t extend to just at the time, either:

But by November 2020, some prosecutors felt that the F.B.I. had not found evidence that could support any charges against Mr. Comey, and they discussed whether the investigation should be closed.

At the beginning of this year, prosecutors were informed that the F.B.I. was not willing to close the case — in part because agents still wanted to interview Mr. Comey, according to a person familiar with the F.B.I.’s inquiry. Interviewing the subject of an investigation is typically considered a final step before closing a matter or bringing charges.

Last month, the F.B.I. asked Mr. Comey’s lawyer whether he would be willing to sit down for an interview, a request that Mr. Comey declined, according to a person familiar with the case.

Last month? That would have been four months into the Biden presidency, and two-plus into the stewardship of new AG Merrick Garland. It’s notable that the DoJ’s confessionals about seizing reporter records came only after Comey refused to cooperate with investigators, too. (They also went after reporters at CNN and the Washington Post.) Whatever anyone says about Trump, this probe doesn’t appear to have been primarily political.

Regardless, this is just as suspect as when the Barack Obama DoJ went after Fox’s James Rosen. Reporters shouldn’t be entirely immune from espionage laws, but they should only be targeted when they themselves are suspected of espionage or acting on behalf of foreign interests. These actions are intended to intimidate reporters, but much more so to intimidate people who might have a real need to blow whistles on official wrongdoing. There are better ways of doing that than going to the media, of course, but even then reporters are intrinsically passive actors in this process. And at the core, the government shouldn’t be snooping in anyone’s records without reasonable suspicion that they themselves broke the law.

We did a lot of damage to ourselves in Russia’s interference attempts, much more so than Russia did on its own. It’s time to take stock of the needless hysteria and political posturing that took place over the past five years on all sides, and to rein in the abuses that resulted from it.

Update: I’ve edited the headline for better precision. No one has shown Comey was the leaker in this case, at least not so far.