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U.S. Attorney Jay Clayton, who signed the now-withdrawn subpoenas for several New York Times reporters, testified in front of Congress last week as Donald Trump’s nominee for the director of national intelligence.
Under questioning from Sen. Michael Bennet, Clayton said that he followed the Trump administration’s media guidelines before signing the Times subpoenas. These guidelines include the following: “The government should have made all reasonable attempts to obtain the information, communications records, or business records from alternative sources.”
Clayton proactively called out this “all reasonable attempts” plank in his testimony:
“I’m confident that the procedures we have in place to protect the First Amendment and protect the freedom of the press … were followed. They depend on the facts and circumstances, how much time you have.
“Those matters include … ‘Are there other available sources for the information we seek?’ And have we sought that.”
He later repeated, “We followed the protocols” and “I want to assure this committee that … that concept of ‘least intrusive possible’ is front of mind for me.”
As we pointed out at the time, this was likely impossible. Given the Times’ story came out on a Wednesday and the subpoenas were issued on a Friday (after an hourslong White House meeting discussing the case with FBI Director Kash Patel), there was almost no way “all reasonable attempts” were made before the subpoenas were issued. These investigations usually take months.
It sure seemed like false testimony to us.
But on Friday, the Department of Justice itself seems to have confirmed that Clayton lied to Congress when he indicated they had pursued “all reasonable attempts” before issuing the subpoenas to the reporters.
In a court hearing in the Times subpoena case, a federal judge castigated government lawyers for an hour for making a multitude of errors when issuing the subpoenas, misleading the court, and not following the law, including the legal test in NY Times v. Gonzales that determines reporter’s privilege in the Second Circuit.
The judge specifically and repeatedly brought up the “all reasonable attempts” language, and how it was clear the government did not follow it:
Judge: I’m just asking you, am I wrong that the regulations and cases like Gonzales say that subpoenas issued to reporters and for the reporter’s records are not the first thing you do, they are the last thing you do? That is the reason why not obtainable from other sources is part of the Gonzales test. It’s the reason why in the regulation it specifically says that before you seek a subpoena, you need to make “all reasonable attempts to obtain the information from alternative sources.” It’s not a matter of classified or Rule 6 information. It’s a matter of just complying — basic compliance with the law.
The DOJ didn’t even attempt to argue they took any investigative steps before issuing the subpoenas. Instead, they claimed there was an “exception” to that rule that allowed them to bypass it entirely, which left the judge flabbergasted:
Judge: No, which language within this provision is clear that it’s an exception to the rule that’s stated two provisions above this that says, “The government should have made all reasonable attempts to obtain the information, communication records, or business records from alternative sources?” Maybe I’m missing it. You’re familiar with the regulations, so I just want to see where that is where it says except where it’s in this category, then subpoenas are the first thing you do, and you don’t do anything else. You go right to the subpoenas, and you don’t try to investigate otherwise, as Gonzales and the regulations otherwise provide.
The DOJ lawyer Sean Buckley responded:
Buckley: I would distinguish the language “should” in Section (4) from the language “must” in Section (c)(1) through (3). “Should” is advisory. And if the Attorney General authorizes the issuance of these subpoenas, it’s not a violation of the rule.
So DOJ is admitting: We did not actually do any investigation before issuing the subpoenas; we don’t have to, the rules only say we should. And the attorney general can just disregard them any time he wants.
The judge was not buying it, to say the least. He said he would quash the subpoenas unless the government withdrew them, and said if this was a civil case, he would be considering sanctions against the DOJ. The government ultimately withdrew them in disgrace.
You can read the full court transcript below.
It makes crystal clear that Clayton either lied to Congress that “all reasonable attempts” were made; or 2) he was purposefully misleading Congress by neglecting to mention that the Trump administration is manufacturing a magical exception to the DOJ guidelines that allows the attorney general to disregard them whenever he wants.
Clayton should be immediately called back to the Senate to answer for his seemingly false statement, and to tell lawmakers what other policies he believes agency heads don’t need to follow because they include the word “should.” And if you want to make your voice heard, use our action center to tell the Senate “No” on Clayton’s nomination.
stLouIST