The prosecution – which began in July 2020 under then Attorney General William Barr calling for two months of 2017 email minutes from CNN Pentagon correspondent Barbara Starr – continued even after a federal judge presented his arguments to the Justice Department for access to Starrsr had communicated internal e-mails were “speculative” and “not anchored in some facts”.
If Vigilante had violated this order, he would have risked being detained in disregard of the court or possibly prosecuted for obstruction of justice.
It is not uncommon for a media organization to receive a Justice Department subpoena for reporter records and negotiate to protect its journalists. What sets it apart from others is the total secrecy of the order, the months-long legal process and the Trump administration’s unwillingness to negotiate.
The CNN court battle appears to be the longest of the effort, and resulted in the network agreeing to release a limited set of email logs after reaching an agreement with the Justice Department just days after the Biden administration.
The Ministry of Justice submitted confidential arguments and classified information to two judges. Throughout the period, the network’s lawyers have been unable to get any basic information on the Justice Department’s prosecution in a seemingly national security leak investigation that aimed to search tens of thousands of Starr’s 2017 email logs.
A Justice Department official previously confirmed that Starr was never the target of an investigation. There was never any indication that Starr broke the law.
A federal judge unsealed parts of the case on Wednesday and exempted Vigilante from disclosing details of the legal dispute for the first time. Additional court files are still banned, even from CNN’s point of view.
CNN, The New York Times and The Washington Post leaders are due to meet on Monday with current Attorney General Merrick Garland, who announced this weekend that his department would not require journalists to record any leak investigations.
A secret order
Vigilante was first informed of the Justice Department’s prosecution on July 17, 2020, when he was sent a secret warrant from a federal judge ruling that CNN must produce a record of Starr’s emails stored on corporate servers. The order was based on a secret filing by the Justice Department with the Virginia district court and looked up the names and dates of emails sent to and from Starr between June and July 2017, Vigilante said Wednesday.
The judge’s decision would have meant providing more than 30,000 email records.
While it is not clear how involved Attorney General Barr was, according to the DOJ’s practice, prosecutors would have alerted political officers at the highest levels of the Justice Department, including the Attorney General, to the persecution.
The demand came with another instruction: Vigilante was not allowed to reveal his existence to the network or Starr, otherwise he would run the risk of being brought to justice or prosecuted.
“I’ve never seen a situation like this,” Vigilante said this week. “I had the feeling that a sword of Damocles lay over me for a year.”
Vigilante immediately enlisted the help of veteran Washington attorneys Jamie Gorelick, Aaron Zebley, and Paul Wolfson of the WilmerHale law firm. They were also able to interview CNN President Jeff Zucker early on with limited details.
The attorneys representing CNN attempted to negotiate with attorneys from the Justice Department, as would be typical in response to a broad order such as this. But prosecutors weren’t interested in narrowing down their search, Vigilante said.
Vigilante was not allowed to know the purpose of the investigation, what coverage of Starr was being scrutinized or even when the investigation began.
“In short, we have been denied all of the tools lawyers use on a daily basis to deal with these situations,” Vigilante said.
CNN first went to court in September 2020 to overturn or restrict the order. During a closed video conference hearing on October 7, Virginia Federal Judge Theresa Buchanan urged the Justice Department to restrict his request. However, prosecutors returned to their court two days later and issued an affidavit in confidence – which CNN could not see – which contained classified information and convinced Buchanan to proceed with the order.
CNN appealed in November.
In an appeal hearing on December 16, a new judge, US District Judge Anthony Trenga of the Eastern District of Virginia, sided with CNN. In response to the DOJ’s argument for internal emails, the judge noted, “The information requested is too toned in nature and insufficiently tied to evidence relevant, material or useful to the government’s attributed investigation, particularly in the light of the First Amendment activity to which it relates, ”Vigilante said.
“This was the first characterization of the evidence we’d seen and it was breathtaking,” Vigilante said on Wednesday.
CNN’s lawyers tried to clear the matter up, but on January 15, five days before the Biden government took office, the Justice Department asked Trenga to reconsider it.
It was the same day that US attorney Zachary Terwilliger, who oversaw the Virginia investigation, left his post and other senior officials left the Trump administration. Prosecutors from the Department of Justice’s National Security Division, which is still headed by Trump-appointed John Demers, were also involved in the order and the investigation.
A resolution was passed on January 26th. The Justice Department agreed to a much closer disclosure, agreeing that the July order was no longer in force. This resolution opened the door for Starr to be included in advance in case there were further inquiries.
In May, the Justice Department notified Starr that their communications were confiscated. In that letter, CNN first learned that the Justice Department had also received a record of Starr’s phone numbers and personal email account. None of these accounts were held by CNN or its parent company AT&T.
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