On January 14, FBI agents, apparently seeking a shortcut in their investigation of a government contractor accused of illegally possessing classified materials, raided the home of a Washington Post reporter. Agents seized Hannah Natanson’s devices, including both personal and work-issued computers. Now the matter is in court with the government barred by judicial order from reviewing the seized data until litigation is resolved. Important constitutional issues hang in the balance.
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“Investigators told Natanson that she is not the focus of the probe,” according to The Washington Post. “The warrant said that law enforcement was investigating Aurelio Perez-Lugones, a system administrator in Maryland who has a top-secret security clearance and has been accused of accessing and taking home classified intelligence reports from secure government facilities that were later found in his lunch box and his basement.”
Shortly after the raid, President Donald Trump said the federal government had caught “a very bad leaker” regarding U.S. policy in Venezuela, where American forces recently deposed President (and dictator) Nicolás Maduro. Natanson has written extensively on the subject.
U.S. law forbids federal agents “to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” But it includes an exception allowing that “such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data.” Basically, despite ostensibly strong protections for people engaged in journalism, the government gave itself a free pass so long as it invokes magic words related to “national security.”
Further complicating the raid is that the FBI didn’t just seize files related to Perez-Lugones, who had messaged Natanson. It seized all her devices, which contain research on numerous stories across years, many of which offended or embarrassed federal officials. It also includes information intended to be used in stories yet to be written. That material is now accessible for government perusal, subject only to vague assurances that officials won’t act like snoopy houseguests pawing through the medicine cabinet.
“Over the past year on this beat, Natanson gained 1,169 confidential sources—federal employees from more than 120 agencies or subagencies who requested anonymity because they ‘fear retribution from the government due to their disclosures,'” the Post‘s attorneys object in an affidavit filed with the United States District Court for the Eastern District of Virginia that raises First Amendment concerns. “Natanson’s devices contain essentially her entire professional universe: more than 30,000 Post emails from the last year alone, confidential information from and about sources (including her sources and her colleagues’ sources), recordings of interviews, notes on story concepts and ideas, drafts of potential stories, communications with colleagues about sources and stories, and The Post’s content management system that houses all articles in progress.”
Further, the affidavit calls the seizure of stories in progress an exercise in unconstitutional prior restraint that results in “generally impairing her ability to publish the stories she otherwise would have published but for the raid.”
In support of the Post and Natanson, Bruce D. Brown, president of the Reporters Committee for Freedom of the Press, warned that “physical searches of reporters’ devices, homes, and belongings are some of the most invasive investigative steps law enforcement can take.” He added, “this is a tremendous escalation in the administration’s intrusions into the independence of the press.”
“Our First Amendment protects freedom of the press — including journalistic publication of leaked government secrets — as well as freedom for the public to access such information,” agreed a joint statement by 31 press and civil liberties organizations. The statement called for the reintroduction and passage by Congress of the PRESS Act, so-far unsuccessful legislation that “prohibits the federal government from compelling journalists and providers of telecommunications services (e.g., phone and internet companies) to disclose certain protected information, except in limited circumstances such as to prevent terrorism or imminent violence.”
The organizations also call for reform of the Espionage Act, which was reinterpreted by the Obama administration for use against journalists and their sources. The Trump administration subsequently used the World War I-era law to indict WikiLeaks founder Julian Assange.
Whatever the court’s ultimate reaction to arguments by The Washington Post and its supporters, federal officials can’t yet make use of Natanson’s seized information. In response to the Post‘s affidavit, on January 21, U.S. Magistrate Judge William B. Porter forbade federal agents to dig through Natanson’s seized devices, at least until a hearing on the dispute in February. “The government must preserve but must not review any of the materials that law enforcement seized pursuant to search warrants the Court issued,” reads his order.
Complicating the federal government’s case is that its own prosecutors don’t seem to believe they need Natanson’s data to proceed. On January 22, Kelly O. Hayes, U.S. Attorney for the District of Maryland, announced the indictment of Aurelio Luis Perez-Lugones on “five counts of unlawfully transmitting and one count of unlawfully retaining classified national defense information.”
The indictment makes clear that investigators retrieved a treasure trove of evidence from Perez-Lugones himself. That includes specific classified documents he retrieved and copied, messages to “Reporter1” found on his phone (presumably Natanson), and subsequent articles that cited the information.
Given that the Justice Department apparently has everything it needs to go forward with the prosecution of Perez-Lugones for leaking classified information, the raid on Natanson and seizure of her devices looks like harassment of a journalist who annoyed powerful people combined with a general search for anything the government might not want revealed.
The government doesn’t get to torment people who receive and publish information that’s inconvenient to the powers that be. It certainly isn’t entitled to go trawling through private property for information it doesn’t want to see the light of day. Hopefully, Natanson and The Washington Post will deliver a well-deserved slap to the Trump administration.
