The prosecution – which began in July 2020 under then-Attorney General William Barr with a claim for two months’ CNN Pentagon correspondent Barbara Starr’s email logs in 2017 – continued even after a federal judge told the Justice Department its argument for access to Starr’s internal e-mail emails were “speculative” and “unfounded in all facts.”
Had Vigilante violated this order, he would have risked being held in contempt of court or potentially facing a felony of prosecution.
It is not uncommon for a media organization to receive a subpoena from the Department of Justice for reporter records and negotiate protection for its journalists. What stands out is the total secrecy surrounding the order, the months-long trial and the Trump administration’s unwillingness to negotiate.
The CNN court battle appears to be the most protracted of the effort, resulting in the network agreeing to reverse a limited set of email logs after reaching an agreement with the Justice Department just days after the Biden administration.
The Department of Justice presented arguments and classified information confidentially to two judges. The network’s lawyers were not at all able to learn basic information about the Justice Department’s persecution in what appears to be a national security leak investigation aimed at sweeping tens of thousands of Starr’s 2017 email logs.
A Justice Department official confirmed earlier that Starr was never the target of any investigation. There was never any indication that Starr was violating any laws.
A federal judge on Wednesday sealed parts of the case, releasing Vigilante to release details of the legal battle for the first time. Additional court records are still blocked from even CNN’s point of view.
Leaders of CNN, The New York Times and The Washington Post are scheduled to meet Monday with current Attorney General Merrick Garland, who announced this weekend that his department would not require journalists’ records in leak investigations.
A secret order
Vigilante was first informed of the Justice Department’s persecution on July 17, 2020, when he was sent a secret order issued by a federal judge who ruled that CNN should provide records of Starr’s emails stored on the company’s servers. The ruling was based on a secret submission from the Department of Justice to the Virginia Magistrate’s Court and sought 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 giving more than 30,000 emails.
While it is not clear how involved Justice Minister Barr was, prosecutors during DOJ practice would have alerted political appointees to the highest levels of the Justice Department, including the Attorney General, about the prosecution.
The demand came with another directive: Vigilante could not reveal its existence to the network or to Starr, otherwise he would risk being held in contempt of court or prosecuted.
“I have never encountered a situation like this,” Vigilante said this week. “I felt like there was a Damocles sword over me this year.”
Vigilante immediately enlisted the help of experienced Washington attorneys Jamie Gorelick, Aaron Zebley and Paul Wolfson of the law firm WilmerHale. They were also able to distract CNN President Jeff Zucker with limited details too early.
The attorneys representing CNN tried to negotiate with attorneys from the Department of Justice, which would be typical in response to a broad order like this. But prosecutors were not interested in narrowing down what they were looking for, Vigilante said.
Vigilante was not allowed to learn the target of the probe, which reporting of Starr’s was under control or even when the investigation first began.
“In short, all the tools lawyers use every day to navigate these situations were denied us,” Vigilante said.
CNN first went to court in September 2020 to try to cancel or narrow down the order. During a closed-door hearing via video conference on October 7, Federal Judge Theresa Buchanan of Virginia told the Department of Justice to limit her request. Yet prosecutors returned to court two days later and confidentially shared a statement – which CNN could not see – that included classified information and convinced Buchanan to let the order go ahead.
In November, CNN moved to appeal.
During an appeal hearing on Dec. 16, a new judge, U.S. District Judge Anthony Trenga of the Eastern District of Virginia, sided with CNN. In response to the DOJ’s argument on internal e-mails, the judge noted: “The information requested is inherently too weak and not sufficiently linked to any relevant, substantial or useful evidence of the Government’s attributed investigation, in particular in the light of First Amendment activities, as it pertains, “according to Vigilante.
“This was the first characterization of the evidence we had seen, and it was astonishing,” Vigilante said Wednesday.
CNN’s lawyers tried to resolve the case, but still on January 15, five days before the Biden administration took over, the Justice Department again asked Trenga to reconsider.
It was the same day that the U.S. attorney overseeing the Virginia investigation, Zachary Terwilliger, resigned, and then other top officials left the Trump administration. Prosecutors from the Justice Department’s National Security Department, still headed by Trump-appointed John Demers, were also involved in the order and investigation.
On January 26, a decision was reached. The Ministry of Justice agreed to a much narrower publication and agreed that the July order would no longer be in force in the future. This decision opened the door for Starr to be involved in advance if there were further requests.
In May, the Justice Department notified Starr of the seizure of her communications. In this letter, CNN first became aware that the Department of Justice had also received records related to Starr’s phone numbers and personal email account. None of these accounts were held by CNN or its parent company AT&T.