Case 1 :20- 03361- ZME * SEALED* Document 2 Filed 01/05/21 Page 1 of 5

UNITEDSTATESDISTRICTCOURT

FORTHEDISTRICTOF COLUMBIA

SC No.20- - 3361

INRE APPLICATIONOF USA FOR

2703(d ) ORDERFORSIX EMAILACCOUNTSSERVICEDBY GOOGLE

LLCFORINVESTIGATIONOF

VIOLATIONOFFiled Under Seal

ORDER

The United States has submitted an Application pursuant to 18 U.S.C. 2703( d ) ,

requestingthat the Court issue an Order requiringGoogle LLC ( “ PROVIDER” ), an electronic

communication and/or remote computing service provider located in MountainView, California,

to disclose the records and other informationdescribed inAttachmentA to this Order. The Court

finds that the United States has offered specific and articulable facts showing that are

reasonable grounds to believethat the recordsor other informationsought are relevantand material

to an ongoing criminal investigation. Furthermore, the Court determines that there reason to

believe that notification of the existence of this Order will seriously jeopardize the ongoing

investigation, includingby giving targets an opportunity to destroy or tamper with evidence. See

18 U.S.C. ( b ) ( 3) and ( 5 ).

IT IS THEREFORE ORDERED, pursuant to 18 U.S.C. 2703 d ) , that PROVIDERshall,

within ten days of receipt of this Order, disclose to the UnitedStates the records and other

informationdescribed inAttachment A to this Order.

IT IS FURTHERORDERED, pursuantto 18 U.S.C. ( b ), thatPROVIDERshallnot

disclose the existence of the application of the United States or this Order ofthe Court to any other

person ( except attorneys for PROVIDERfor the purpose ofreceiving legal advice) for a period of

Case 1 :20- - 03361- SEALED* Document 2 Filed 01/05/21 Page 2 of 5

one year ( commencing on the date of this Order), unless the period of nondisclosure is later

modifiedby the Court.

ITIS FURTHERORDEREDthat the Applicationand this Order are sealeduntilotherwise

ordered by the Court, except that the United States may disclose the existence and /or contents of

the Applicationand this Order to appropriate law enforcement authorities.

2020.12.30

21:53:44 'Date:

UNITED STATESMAGISTRATEJUDGE

2

Case 1 :20- 03361- * SEALED* Document 2 Filed 01/05/21 Page 3 of 5

ATTACHMENT A

TheAccount( s)

The Order applies to certain records and other information for any Google LLC

( “ PROVIDER ) account( s) associated with the followingidentifier( )

matt.apuzzo@nytimes.com(TARGET ACCOUNT 1) ;

schmidtm@nytimes.com( TARGETACCOUNT2 ) ;

michael.schmidt@nytimes.com( TARGET ACCOUNT 3 ) ;

adam.goldman@nytimes.com( TARGET ACCOUNT 4 ) ;

elichtblau@nytimes.com( TARGET ACCOUNT 5 ) ;

ericl@nytimes.com( TARGET ACCOUNT 6 ) ;

and any preserved data and/or preservation numbers associated therewith.

II. Recordsand other informationto be disclosed

A. Information about the customer or subscriber of the Account( s )

PROVIDER is required to disclose to the United States the following records and other

information, if available, for each account or identifier listed in Part of this Attachment ( the

“ Account( s) ” ) constituting informationabout the customer or subscriberofthe Account( s) for the

time period from January 14, 2017, through April 30, 2017:

1. Names includingsubscribernames, usernames, and screen names) ;

2. Addresses ( including mailing addresses, residential addresses, business addresses, and

email addresses );

3. Localand longdistancetelephoneconnectionrecords;

4. Records of session times and durations, and the temporarily assigned network

addresses ( such as Internet Protocol ( IP ) addresses) associatedwith those sessions;

Case 1 :20- - 03361- * SEALED* Document 2 Filed 01/05/21 Page 4 of 5

5. Length of service ( including start date) and types of service utilized;

6. The identity ofany cookies associatedwith each account;

7. Telephone or instrument numbers ( including MAC addresses) Electronic Serial

Numbers (“ ESN ), Mobile Electronic Identity Numbers (“ MEIN ” ), Mobile Equipment

Identifier ( “MEID ” ) Mobile Identification Numbers (“MIN ” ), Subscriber Identity

Modules (“ SIM ” ), Mobile Subscriber Integrated Services Digital Network Number

(“MSISDN , International Mobile Subscriber Identifiers ( “ IMSI” ), or International

Mobile Equipment Identities (“ IMEI” ) associated with the accounts ;

8. Other subscriber numbersor identities( including the registrationIP address) , including

any current or past accounts linkedto the Account(s) by telephonenumber, recovery

or alternatee-mailaddress, IP address, or other uniquedevice or user identifier; and

9. Means and source of payment for such service ( including any credit card or bank

account number) and billingrecords.

10. A statement as to whether the Account( s ) or any devices associatedwith the Account( s )

had locationservices or GPS activated or enabled, and if so,whether PROVIDERdoes

or does not have geolocation available for the Account(s) or any devices

associatedwith the Account(s) for the time periodfromJanuary 14,2017 throughApril

30, 2017

B. All records and other information relating to the Account( s) ( except the contents of

communications )

PROVIDER is required to disclose to the United States the following records and other

information, ifavailable, for the Account( s ) for the time period from January 14, 2017, through

April 30, 2017, constituting all records and other informationrelating to the Account( s) ( except

the contents of communications ), including :

1. Records of user activity for each connection made to or from the Account (s), including

log files; messaging logs; the date, time, length, and method of connections; data

transfervolume; user names and source and destinationInternetProtocoladdresses;

2. Informationabout each electronic communication sent or received by the Account( s ) ,

including the date and time of the communication, the methodof communication, and

2

Case 1 :20- 03361- ZME * SEALED* Document 2 Filed 01/05/21 Page 5 of 5

the source and destinationofthe communication(suchas sourceand destinationemail

addresses, IP addresses, and telephone numbers), and any other associated header or

routing information; and

3. Identification of any PROVIDER account( s ) that are linked to the Account( s ) by

cookies, includingallPROVIDERuserIDs that loggedinto PROVIDER'sservicesby

the same machineas the Account( s) .

4. Identificationofany forwarding email services used to or from the Account, including

the header identificationand metadata information associated with communications

forwarded to PROVIDERAccounts from other email accounts or forwardingservices.

5. Identificationofall services and features activated on the Account(s), including use of

Google Drive and related features .

A. Definitions :

1. As usedherein, “unique device or user identifier ” refers to any uniquenumberor set of

characters stored or generated by Google that may be used to identify or track users or

devices , including but not limited to cookies , unique application number, universally

unique identifier or “ UUID , ” globally unique identifier or “GUID ” Advertising ID,

Android ID, MAC address , IMEI number , MEID number, and electronic serial number

or ”

2. As used herein , “ cookies” refers to any cookie technology used by Google, includingcookies related to user preferences (such as NID), security cookies , process cookies ,

cookies used for advertising (such as NID, SID, IDE, DSID, FLC, AID, TAID , and

exchange_uid ) cookies linking activity across devices (such as AID and TAID),session state cookies , and cookies pertaining to Google Analytics .

3

Case 1 :20- 03361- ZME * SEALED* Document 4 Filed 03/03/21 Page 1 of 1

UNITEDSTATESDISTRICTCOURT

FORTHEDISTRICTOF COLUMBIA

SC No.20- - 3361

INRE APPLICATIONOF USA FOR

2703(d ) ORDERFORSIX EMAILACCOUNTSSERVICEDBY GOOGLE

LLCFORINVESTIGATIONOF

VIOLATIONOFFiled Under Seal

ORDER

Upon consideration of the Government's ex parte Motionto Modify Order in this matter,

the Courtagreesto providethe reliefrequested.

IT IS THEREFORE ORDERED, that the United States serve this Order onto Goolge LLC

( “ Google” ) and that Google may disclose the existence and substance of this Order and the

January 5 , 2021 Order to Deputy General Counsel for the New York Times, David McCraw , but

that Google, its counsel, and Mr. McCraw may not share the existence or substance of either of

these Orders any other personwithout further approval from this Court ( untilJanuary 5 , 2022

unless later modified by the Court).

IT IS FURTHERORDERED that Google shall promptlyprovide the Governmentwith all

records responsive to this Court's January 5 , 2021 Order by March 11, 2021.

AND IT IS FURTHER ORDERED the Government's Motion to Modify Order and this

Orderbe sealeduntilotherwiseorderedby the Court, exceptthatthe UnitedStatesmaydisclose

the existence and /or contents of this Order to appropriate law enforcement authorities.

2021.03.02

17:49:40Date :

UNITED STATESMAGISTRATEJUDGE

Gibson, Dunn& CrutcherLLP

GIBSONDUNN1050 Connecticut Avenue , N.W.

Washington , DC 20036-5306Tel 202.955.8500

www.gibsondunn.com

TheodoreJ. BoutrousJr.

Direct: +1213.229.7804

Fax: +1213.229.6804

TBoutrous@gibsondunn.com

March 16, 2021

VIAELECTRONICMAIL

Tejpal ChawlaAssistant United States AttorneyU.S. Attorney's Office for the District of Columbia555 4th Street NW

Washington, DC20530

Adam Small

Trial Attorney

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington , DC 20530-00001

Re: Application for 2703(d) Order for Six EmailAccounts ServicedbyGoogleLLC

DearCounsel:

We represent the New York Times. Thank you for speaking earlier today.

As discussedonthe call, we do notbelieve there is a legitimatebasis for continued

nondisclosureofthe Government'sabove-referenced applicationor the January 5 , 2021Order directed to Google LLC. As youknow , inDecember2020, the UnitedStatessubmittedan applicationpursuant to 18 U.S.C. (d) for anorder requiringGoogle todisclose records and other informationassociatedwith six e-mail accountsofthe New York

Times, which isan enterpriseclient of Google. Those accounts correspondto four current orformerNewYork Times reporters. The Governmentalso sought an order pursuantto 18U.S.C. (b) preventingdisclosureofthe existenceor substanceofits applicationor theCourt's orderonthat application. OnJanuary 5 , 2021, MagistrateJudge Zia M.Faruquigranted both orders. Ingrantingnondisclosure, the Court reliedonthe Government'sapparentrepresentationthat notification“ will seriouslyjeopardize the ongoing investigation,

includingby givingtargets an opportunity to destroyor tamper with evidence.” See Jan. 5 ,

2021Order, InreApplicationofUSAfor 2703(d) Order forSixEmailAccounts ServicedbyGoogle LLC forInvestigationofViolation of [Redacted] 20-sc -3361, Dkt 2 ( Order ).But any such representationmust have omittedthe relevant facts and context, whichcannot

support ongoingnondisclosure. The Government'sapplicationappearsto relate to a wellknownleak investigation an investigationthat has had intensemedia and public scrutiny

Beijing Brussels City Dubai Frankfurt Kong Angeles

NewYork County Alto Francisco Paulo , D.C.

GIBSONDUNN

March 16, 2021

Page 2

for an extendedperiodoftime— such that no court examininga full andaccurate record

could find a riskof seriousjeopardy to the investigationfrom disclosureofthe application.

Accordingly, the order requiringnondisclosureisunjustifiedand unconstitutionalunderthe

First Amendment. We thus respectfullyrequestthat you agree to withdraw the

Government'snondisclosurerequest andpromptlyadvise the Court ofyour revisedpositionon nondisclosure.

ApplicableLegalPrinciples

Courts uniformly have found that nondisclosure orders imposed under Section 2705 are both

content-based restrictions on speech and prior restraints . See, e.g. , Matter of Search Warrantfor redacted ] .com , 248 F. Supp. 3d 970, 980 (C.D. Cal . 2017 ) (“ Courts considering theissue have almost uniformly found that Section 2705 (b ) NPOs [notice preclusion orders , orNPOs issued under analogous statutes, are prior restraints and / or content-based

restrictions. “ G ] ag orders content-based because they effectively preclude speechon an entire topic — the ...underlying criminal investigation .” In re Sealing & NonDisclosure of Pen/Trap / 2703(d ) Orders, 562 F. Supp . 2d 876 , 881 (S.D. Tex . 2008 ) . Such“ naked prohibition [ s] against disclosure [ are fairly characterized as a regulation of purespeech .” Bartnicki v . Vopper, 532 U.S. 514, 526 (2001 ). Orders prohibiting disclosure ofGovernment electronic search and seizure applications are also paradigmatic prior restraints .

See, e.g. , In re Sealing & Non - Disclosure of Pen/ Trap /2703(d ) Orders, 562 F. Supp. at 881 ;Microsoft Corp. v. U.S. Dep’t of Justice, 223 F. Supp. 3d 887 , 905 (W.D. Wash . 2017 ) .

Courts have also uniformly held that such prior restraints and content -based restrictions on

pure speech are subject to the strictest form of First Amendment scrutiny and “ bear[] a heavy

presumption against [their constitutional validity. ” Se Promotions, Ltd. v. Conrad, 420

U.S. 546 , 558 ( 1975) . As the Supreme Court has recognized “ prior restraints on speech and

publication are the most serious and the least tolerable infringement on First Amendmentrights.” Nebraska Press Ass n Stuart, 427 U.S. 539, 559 (1976) ; see also, e.g. , Alexander

v . United States, 509 U.S. 544, 554 ( 1993) ( recognizing that the First Amendment

“ provid [ es] greater protection from prior restraints than from subsequent punishments ”) .Under strict scrutiny, the Government must show that the prior restraint “ furthers a

compelling interest and is narrowly tailored to achieve that interest. ” Reed v . Town ofGilbert , 576 U.S. 155, 171 (2015) .

Section 2705 (b) of the Stored Communications Act permits a governmental entity acting

under Section 2703 to apply, in certain enumerated circumstances , for a protective order,

prohibiting providers of electronic communications services from notifying others of their

receipt of legal process. In particular, Section 2705 (b) provides that a court may enter suchan order only if it determines that notification of the existence of the warrant, subpoena , or

GIBSONDUNN

March 16, 2021

Page 3

court orderwould reasonablyresult in: “ ( 1) endangeringthe life or physicalsafety ofan

individual; ( ) flight fromprosecution; (3) destructionofor tamperingwith evidence; (4)

intimidationofpotentialwitnesses; or (5) otherwiseseriouslyjeopardizingan investigation

or undulydelayinga trial. ” 18 U.S.C. 2705(b) .

There Is No Basis For Nondisclosure In These Circumstances

The uniquefacts andcircumstanceshere, whichwere likelynot fully providedto the Court,

makeclearthatthe Governmentcannotsustainits heavyburdento justifyongoingnondisclosure.

While Section 2705 (b) is routinely invoked for gag orders , most of the statutory bases fornondisclosure are not implicated here . The Order was granted on the basis that there was

purportedly “ reason to believe ” that disclosure would “ seriously jeopardize the ongoing

investigation ,” which would giv [ e] targets an opportunity to destroy or tamper withevidence . ” Order at 1 (citing 18 U.S.C. (b) (3) , (b) (5)) . The Court did not find reason

to believe disclosure presented a risk of harm to life or safety, of a flight from prosecution, orof intimidation of potential witnesses .

To be sure, whenever there is a criminal investigation , there is typically some chance that theinvestigation being made public could jeopardize that investigation. Indeed, there are likely

many instances when the need to preserve secrecy around an ongoing investigation may

constitute a compelling interest justifying a temporary nondisclosure order , as when the

criminal conduct ongoing and there is a credible risk that disclosure would prompttampering with easily-destroyed evidence or flight from prosecution . E.g., Matter of

Subpoena 2018R00776 , 947 F.3d 148, 156 ( Cir. 2020 ); In re Search of Info. AssociatedWith Specified E -Mail Accts ., 470 F. Supp . 3d 285, 291 (E.D.N.Y. 2019) (“Because the

criminal conduct is ongoing , there is a danger that ifwitnesses and perpetrators learn of theSearch Warrant, they will flee, alter or conceal their behavior, and destroy evidence . Secrecy

of such an ongoing criminal investigation thus constitutes a compelling Government

interest .

Eveninsuchinstances, courts haveseenfit to pushbackonthe breadthofthe nondisclosureorders sought

by the Government, inrecognitionof the FirstAmendmentvalues at stake. Forexample, numerouscourtshaverejected indefinitegag orders as unconstitutional, imposingexpirationdates on sealingand nondisclosureprovisions, see, e.g., In reSealing& Non-Disclosure of Pen/ Trap/2703(d ) Orders, 562 F. Supp.2d 876, 883 (S.D. Tex . 2008) ; In re Search WarrantIssuedto Google, Inc., 269 F. Supp. 3d 1205, 1216(N.D.Ala. 2017) ; MatterofSearchWarrantfor redacted].com 248 F. Supp. 970, 983 (C.D. Cal.2017) , or simplydenyingapplicationsfor indefiniteorders, see, e.g., MatterofGrandJury Subpoenafor[Redacted] @ Yahoo.com, 79 F. Supp. 3d 1091, 1091(N.D.Cal. 2015) .

GIBSONDUNN

March 16, 2021

Page 4

Butunderthe specificand uniquecircumstancesof this case— where boththe obvioustargets

ofthe investigationand the publicat large have longknownabout the investigation's

existence — there is no reasonto believethe investigationwill be seriouslycompromised,

whichwas the onlypurportedbasis for nondisclosurehere.

The Order implicates the email accounts for four New York Times reporters Matt Apuzzo ,Michael S. Schmidt, Adam Goldman, and Eric Lichtblau — between January 14, 2017, and

April 30 , 2017. That time frame is a notable one in our recent political history and during

that period, those four reporters co -wrote a widely -read article for The New York Times

discussing how then -FBI director James Comey handled investigations related to thepresidential candidates in the 2016 election (the “ Article ). Article’s sources includedinterviews with “ 30 current and former ” officials who “ discussed the investigations on the

condition of anonymity because they were not authorized to speak to reporters.

It is patently clear that the Government's investigation is of the person or persons who weresources to The New York Times reporters whose records are sought by the Order. But theGovernment's interest in and investigation related such issues is publicly known and has

been highly publicized . More than a year ago , multiple news outlets reported on the front

page that “ [ ] enforcement officials are scrutinizing ” that very Article in an “ unusual ”

investigation to determine who disclosed the allegedly classified information discussedtherein .

2

MattApuzzoet al. , ComeyTriedto Shieldthe F.B.I.FromPolitics. ThenHeShapedanElection, N.Y.

Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.

3Id

4

The reportersactedentirely lawfully inreceivingand publishingthe information, however it was obtained.See, e.g., Smith v. DailyMailPublishingCo., 443 U.S. 97, 102 ( 1979) (“ S ] tate action to punishthe

publicationof truthful informationseldomcan satisfy constitutionalstandards. ; Bartnickiv . Vopper, 532

U.S. 514, 535 (holdingthat even “ illegal conduct by the source that obtainedthe information“ does notsuffice to removethe FirstAmendmentshield from speechabout a matterofpublic concern”) . Further, thenondisclosureorder abridgesThe NewYork Times and its reporters legitimate First and Fourth

Amendmentinterests, as it preventsthe attorneys coveredunder the order from conferringwith thereporterswhose recordsare being sought about, inter alia, the relevanceof the requested records, any

confidential sources that may be disclosedby the records, and privacy interests implicatedby disclosure.

5 Adam Goldman, Justice Dept.InvestigatingYears - OldLeaks andAppears Focusedon Comey, N.Y. Times( Jan. 16, 2020), https://www.nytimes.com/2020/01/16/us/politics/leak-investigation-james-comey.html; seealso, e.g., Matt Zapotosky,Federalprosecutors exploreyears-oldmedia disclosure, raisingfears Trump isusingJustice Dept. for politicalgain, Wash.Post (Jan. 17, 2020),https://www.washingtonpost.com/national-security/federal-prosecutors-explore-years-old-mediadisclosure-raising-fears - trump-is-using-justice -dept- for -political- gain /2020 /01/ 16 /6bc56b68-38c2-11eabb7b-265f4554af6d_story.html; Alison Durkee, TheDOJIs InvestigatingJames Comey Over Years Old

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GIBSONDUNN

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Any target of the investigation has therefore known about it for over a year . As such, there is

no reasonable basis to believe the investigation would be seriously jeopardized by the fact of

the Government's application being known. Nor is there any risk that the information the

Government seeks would be destroyed or tampered with, since the Government seekselectronic evidence that , to our knowledge, has been preserved by The New York Times '

service provider, and anyone who might be a target of the investigation has no control over

or access to such electronic evidence . The Government thus does not have a compelling

interest in nondisclosure of its application and related investigation and a gag order is

unsupportable. See In re Grand Jury Subpoena Issued to Twitter, 2017 WL , at * 6

(holding that a gag order was not justified where the investigation was already public, notingthat a mere “ interest ingrand jury secrecy does not, without more, provide a statutory basis

for a nondisclosure order under Section 2705 (b ) ), report and recommendation adopted,2017 WL 9287147 (N.D. Tex. Oct. 19, 2017) .

Even ifthe investigation to which the Government's 2703 (d) application pertains is in someway different from the investigation revealed in the January 2020 reporting, years of intense

media attention have long put any potential suspect on notice that a criminal investigation

was likely. Nearly 20 million people watching on live television heard Director Comey tella Senate committee a few months after the Article published that he directed a friend to givea memo to the press .? The Department of Justice looked into whether Director Comey

directed his friend to turn over the contents of a memo detailing Director Comey’sinteractions with President Trump to The New York Times , but ultimately declined to

Leaks,Vanity Fair (Jan. 16, 2020), https://www.vanityfair.com/news/2020/01/james-comey-dojinvestigation-leaks

6 Lisa Richwine,About 19.5million U.S. viewers watchedComey testify about Trump, Reuters (June 9,2017),https://www.reuters.com/article/us-usa-trump-russia-ratings/about-19-5-million-u-s-viewerswatched-comey-testify-about-trump- idUSKBN1902X6.

7 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence , S. Hrg. 115–99( June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf; see Erik Ortiz and Dafna Linzer, Who Is Daniel Richman, the Columbia Professor WhoLeaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM),https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leakedcomey -s-private-n769846 ; Ken Dilanian, Dafna Linzer, and Alex Johnson, Comey Wrote Memo SayingTrump Urged Him to Drop Flynn Investigation : Sources, NBC News (May 17, 2017, 3:58 AM ),https://www.nbcnews.com/news/us-news/comey-wrote-memo-saying-trump-urged-him-drop-flynninvestigation -n760471; Michael S. Schmidt, Ina Private Dinner , Trump Demanded Loyalty. ComeyDemurred, N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comeyfiring.html

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GIBSONDUNN

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prosecute Director Comey. The Department ofJustice's inspector general, moreover,conducted two highly publicized investigations ofDirector Comey’s actions that resulted in

public reports and foretold further investigations . The first report detailed the decisions

described inthe Article related to the 2016 election, warning that “ a culture of unauthorized

media contacts” permeated the FBI and recommended that the FBI consider whetherdisciplinary provisions and penalties are sufficient to deter such improper conduct. The

second report, while noting that the DOJ decided not to prosecute Director Comey,

concluded that disclosing the memo “ set a dangerous example for personnel who the FBI

“ depends on ...not to disclose sensitive information.

Moreover, the then -Presidentexplicitlyand quitepubliclycalledfor a criminalinvestigation

as he repeatedlycriticizedDirectorComey, tweetingthat he shouldbe prosecuted”becausehe violatedtheEspionageAct. And then-AttorneyGeneralJeffSessionshad

publiclyannouncedin2017 that theadministrationhad “ tripledthe numberofactiveleakinvestigations andwarnedthat “ criminals” who disclosesensitiveinformation“ are, in fact,beinginvestigatedand prosecuted

8AdamGoldman& KatieBenner, JusticeDept.Declinedto ProsecuteComey OverMemosAboutTrump,

N.Y.Times( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html.

9 Off. ofThe InspectorGen.,U.S. Dep’tofJustice, 18-04,A ReviewofVarious Actions by the FederalBureauof Investigationand DepartmentofJustice inAdvance of the 2016 Election(2018) at 430, 500,https://oig.justice.gov/news/doj-oig-releases-report-various-actions-federal-bureau-investigation-anddepartment-justice.

10 Off of The Inspector Gen. , U.S. Dep’t of Justice , 19-02, Report of Investigation of Former Federal Bureau

of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling

of Certain Memoranda (2019 ) , at 60, https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf .

11

DonaldTrump @realDonaldTrump), Twitter ( April 13, 2018) ,

https://twitter.com/realDonaldTrump/status/984763579210633216[ https://web.archive.org/web/20180619011759/https://twitter.com/realDonaldTrump/status/984763579210

633216

12

DonaldTrump ( @realDonaldTrump), Twitter, (Aug. 31, 2019) ,https://twitter.com/realdonaldtrump/status/1167771834059755520

[ https://web.archive.org/web/20190831143616/https://twitter.com/realdonaldtrump/status/1167771834059

755520

13 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaksof Classified Materials Threatening National Security (Aug. , 2017),https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-delivers-remarks-briefing-leaks-classifiedmaterials see generally Ken Klippenstein, Trump Administration Referred a Record Number of LeaksforCriminal Investigation, The Intercept (Mar. 2, 2021, 6:51 PM), https://theintercept.com/2021/03/02/trumpleaks-criminal-investigation

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Inshort, anypotentialtarget indeed, the entirepublic hasknownfor years, from

congressionalinquiries, agencyprobes, intensemediacoverage, and formerPresident

Trump's own words, ofthe existenceand threat ofcriminal investigationsrelatedto alleged

leaks. Thus, on the specificfacts relevantto the investigationhere, the Governmentcannotmeet its burdenofshowingthat disclosureof the instantapplicationwould seriously

jeopardizeits investigation, as it mustunder the relevantstatuteand theFirstAmendment.

Conclusion

Whilewe recognizethat the Courtmade the requisitestatutory findings, we submitthe

Government'sapplicationlikelydidnot providethe Courtwith the full andnecessary

context as laidout hereinand that, in lightofthese facts, there is no reasonablebasis tobelievedisclosurewouldseriouslyjeopardizethe investigation. Forall ofthese reasons,

nondisclosureofthe existenceand substanceofthe Government's2703 d) applicationand

the order grantingthat applicationis entirelyunjustified. The law and interests of justicemandatethat the nondisclosureorderbe withdrawn.

Please confirm by 12pm ET on Friday, March 19 that the Government will withdraw its

request for the nondisclosure order in this matter. As discussed, we would appreciate the

opportunity to meet with you and any appropriate supervisors within your respective officesto discuss this further.

Thank you for your consideration .

Respectfullysubmitted,

Theodore J. Boutrous Jr. AlexanderH. Southwell

14

Openness regarding Section 2703 orders and applications enhances the basic fairness” of the criminalsystem and “ the appearance of fairness so essential to public confidence in the system .” Press -EnterpriseCo. v. Superior Court of California, 464 U.S. 501, 508 ( 1984) ; see also Inre Sealing & Non- Disclosure ofPen/ Trap / 2703( ) Orders, 562 F. Supp. 2d at 891 ( recognizingthat “documentsauthored or generatedby

the court itselfin discharging its public duties,” such as Section 2703 d) orders, are “ [ i ]n the top drawer of

judicial records” and “ hardly ever closed to the public ) ; Mills v . Alabama, 384 U.S. 213, 219 ( 1966)( recognizingthat the First Amendment interests in free and informed“ discussionofgovernmental affairs”are paramount)

Gibson, Dunn& CrutcherLLPGIBSON DUNN

1050ConnecticutAvenue N.W.

Washington, DC 20036-5306

Tel 202.955.8500

www.gibsondunn.com

TheodoreJ. BoutrousJr.

Direct: +1213.229.7804

Fax: +1213.229.6804

TBoutrous@gibsondunn.com

March 26,

VIAELECTRONICMAIL

Tejpal ChawlaAssistant United States Attorney

U.S. Attorney's Office for the District of Columbia555 4th Street NW

Washington, DC 20530

Adam Small

Trial Attorney

U.S. Department of Justice950 Pennsylvania Avenue NW

Washington , DC 20530-00001

Re: In re 2703 ( d ) Order for Six New York Times EmailAccounts Serviced byGoogleLLC

DearCounsel

We write as counsel to The New York Times Company to respectfully request that theGovernment withdraw its application for a 2703(d) order for six New York Times e -mailaccounts . See Jan. 5 , 2021 Order , In re Application of USA for 2703 (d ) Order for Six EmailAccounts Serviced by Google LLC for Investigation of Violation of [ Redacted ], No. 20 -sc3361, Dkt. 2 ( Order .

As you know , on March 16, 2021, we wrote to object to the nondisclosure order , which we

believe is improper under both 18 U.S.C. (b ) and the First Amendment. Thenondisclosure order is in itself an impermissible restraint on the press's freedom to discuss

and report on an issue of significant public concern . But it also represents an attempt to

shroud insecrecy a more significant problem with the underlying Section 2703 d)

application and order . That order is both legally improper and contrary to thisAdministration's stated positions on the News Media Guidelines and the constitutional

guarantee of a free and independent press . Using the press as an arm of an investigation runs

rough-shod over the First Amendment and flouts the reporter's privilege and the Departmentof Justice's own guidelines .

Beijing Brussels Century City Denver Frankfurt Kong London Los Angeles

New York County Palo Alto San Francisco Paulo Singapore Washington , D.C.

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As nominee for his current position , Attorney General Merrick Garland testified that he is

“ deeply committed” to the News Media Guidelines . As a D.C. Circuit judge , he remindedhis colleagues that, unless the reporter's privilege is vigorously protected , confidential

sources will be reluctant to disclose any confidential information to reporters ” —a result , he

cautioned , that would “ undermine the Founders intention to protect the press.” Lee v. Dep'tof Justice , 428 F.3d 299 , 303 (D.C. Cir. 2004) (Garland, J., dissenting) ( citations omitted ).In keeping with these important principles , we urge the Department to reconsider andwithdraw its Section 2703 d) application .

Background

The investigation and Section 2703 d ) order at issue here sit at the intersection of two

frequent targets of former President Trump: former FBIDirector James Comey and themedia

Former President Trump has long harbored animosity toward Director Comey. A few days

after Comey refused to tell Congress whether Trump or members of his campaign were

under criminal investigation for possible collusion with Russia, Trump fired him . Andwhen Trump suggested he had tape recordings of his conversations with Comey , Comey

leaked a memo to the press that sparked the special counsel's investigation2 and, it seems ,

this leak investigation as well.3 Trump's vendetta against Comey grew even further from

there . When reports emerged that the FBIhad opened an investigation into whether Trumpwas a Russian agent, Trump lashed out, tweeting that Comey and others had “ tried to do a

number on your President and that he was a liar “caught in the act. ” Over the years , Trump

1

2

Eric Tucker, The Comeyfiring,as retoldby the Mueller report, Associated Press (Apr. 23, 2019),https://apnews.com/article/4fflecb621884a728b25e62661257ef0.

Open Hearingwith FormerFBIDirector James ComeyBefore S. Comm. On Intelligence, S. Hrg. 115–99(June 8, 2017) , at 27 ,https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf.

3 Matt Zapotosky, Federal prosecutors explore years old media disclosure , raisingfears Trump is usingJustice Dept. for politicalgain, Wash . Post (Jan. 16, 2020) https://www.washingtonpost.com/nationalsecurity / federal -prosecutors -explore -years -old -media -disclosure -raising -fears - trump-is -using -justice -deptfor -political -gain /2020/ 01/ 16 / 6bc56b68-38c2-11ea 265f4554af6d_story.html.

4 Richard Gonzales & Sasha Ingber, Trump Lashes Out At FBIAfter NY Times ' Reported On Inquiry IntoHis Intentions, Public Radio (Jan. 11, 2019 10:40 PM),https://www.npr.org/2019/01/11/684737549/white-house-denounces-ny-times-report-on-fbi-investigationof-trump -russia - s.

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not only lobbed insults at Comey calling him, among other things, a “ DIRTY COP”

" crazy a real nut job also threatened him with imprisonment and suggested he

committed treason. Indeed, former officials told The Washington Post that they worried

that this very investigation's purpose was to “ dredg [ e ] up old allegations of wrongdoing tohelp Trump go after” Comey. Insofar as this investigation is tied up with Trump'scampaign of retaliation against Comey, it was improper from the start and, certainly , ought

no longer to be pursued now that Trump is no longer in office and the Department of Justicehas new leadership .

The investigationalso appears to be another salvo in former PresidentTrump’s war on the

press. Indeed, former officials have said his hatred of the media” fueled this very

investigation. 10 Inhis first two years in office, eleven percentofTrump's thousands of

tweets “ insulted or criticizedjournalists and outlets, or condemnedand denigrated the newsmedia as a whole. He told CBS News that he did so to “ discredit and demean” the

5

DonaldTrump ( @realDonaldTrump), Twitter(Apr. 30, 2020) ,

https://web.archive.org/web/20200501095446/https://twitter.com/realdonaldtrump/status/1255832117583495169

6

Matt Apuzzo, Maggie Haberman, and Matthew Rosenberg, Trump Told Russians That Firing Job

Comey EasedPressure From Investigation, N.Y. Times (May 19, 2017) ,

https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html.

7 Donald Trump ( @realDonaldTrump), Twitter (Dec. 15 , 2019) ,

https://twitter.com/realDonaldTrump/status/1206281389991219200 ,

[ https://web.archive.org/web/20200111121930/https://twitter.com/realDonaldTrump/status/120628138999

1219200

8

DylanStableford, Trump calls treason’on Comey, McCabeand a number of people', Yahoo (May23 , 2019) , https://news.yahoo.com/trump-comey-mc-cabe-strzok-page-guilty-of-treason-214458786.html.

9 Matt Zapotosky , Federal prosecutors explore years old media disclosure , raising fears Trump is usingJustice Dept. for politicalgain, Wash . Post ( Jan. 16, 2020 ), https://www.washingtonpost.com/nationalsecurity / federal-prosecutors -explore -years -old -media - disclosure -raising - fears -trump -is -using -for -political-gain / 2020 /01/ 16 /6bc56b68-38c2-1 bb7b -265f4554af6d_story.html .

10 Matt Zapotosky,Federalprosecutors exploreyears -oldmedia disclosure, raisingfears Trump is usingJustice Dept. for politicalgain, Wash. Post (Jan. 16, 2020), https://www.washingtonpost.com/nationalsecurity / federal-prosecutors-explore-years-old-media-disclosure -raising-fears -trump - is-using-justice -deptfor-political-gain / 2020 /01/ 16 /6bc56b68-38c2-11ea-bb7b -265f4554af6d_story.html.

Stephanie Sugars,Fromfake news to enemy of thepeople:An anatomy ofTrump's tweets,Committee toProtect Journalists (Jan. 30, 2019 10:00 AM), https://cpj.org/2019/01/trump-twitter-press-fake-newsenemy-people

11

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media. He has directed particular ire at The New York Times and The Washington Post,

whose stories are at the heart of this investigation calling them “ two of the most dishonestmedia outlets around. Truly, the Enemy of the People ! And these attacks were not merely

rhetorical : his re-election campaign filed libel lawsuits against both The Times and The

Post, while his administration “ stepped up prosecutions of news sources , interfered in thebusiness of media owners , [ and] harassed journalists crossing U.S. borders.

In short, this investigation appears to be inextricably intertwined with former President

Trump's personal grievances against Director Comey and The New York Times . Since the

investigation launched, President Biden has taken office, touting his “commitment to

reaffirming the Department of Justice as a pillar of independence and integrity ” and toensuring that it functions as the American lawyer's not the President's law

firm . In keeping with that commitment , the Department should withdraw the 2703 (d)

application , which is contrary to the Department of Justice's own News Media Guidelines

and Enterprise Data Guidelines , as well as to the protections of the reporter's privilege underboth the First Amendment and the common law.

The Section 2703 ( d ) Order Contravenes the NewsMedia Guidelines

own guidelines for seeking information from the news media in criminal

investigations (the News Media Guidelines) prohibit the Government from doing exactly

what it has tried to do here — unjustifiably conscript the press into serving as an investigativearm of the Government.

12 Lesley Stahl: Trump admitted mission to “discredit press, CBS News (May 23, 2018 5:39 AM) ,https://www.cbsnews.com/news/lesley-stahl-donald-trump-said-attacking-press-to-discredit-negativestories /

13 Donald Trump ( @realDonaldTrump , Twitter ( Apr. 19, 2020) ,

https://web.archive.org/web/20190421100338/https://twitter.com/realdonaldtrump/status/11193507500967

85409

14

See Complaint, DonaldJ. Trump forPresident, Inc. v . TheNew York Times Co., No. 152099/2020(Cnty. Supreme Ct. Feb. 26, 2020) ; Complaint, DonaldJ. Trump for President, Inc. v . WP Co.LLC, No.1: 20 -cv - 00626 -KBJ (D.D.C.Mar. 3 , 2020) . The NewYork Times actionhas since been dismissed. See

also DonaldJ. Trump forPresident, Inc.v . The New York Times Co., 2021WL 938979, at * 1-2 (N.Y. .Sup. Ct. Mar. 9, 2021) .

15The TrumpAdministrationandthe Media, Committeeto ProtectJournalists( April 16, 2020) ,

https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/.

16 Biden vows to restore faith in U.S. law with Justice Dept nominees, Reuters (Jan. 7, 2021),https://www.reuters.com/article/us-usa-biden-attorney-general/biden-vows-to-restore-faith-in-u-s-law-withjustice-dept- nominees-idUSKBN29C1FY.

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The News Media Guidelines were introduced by the Department of Justice — and codified

into federal regulations nearly fifty years ago , in response to concerns about the growing

number of subpoenas to compel journalists to divulge confidential sources . Recognizing the

important principle that the freedom of the press can be no broader than the freedom ofmembers of the news media to investigate and report the news, ” the guidelines serve as an

important bulwark against law enforcement encroachments on that freedom , by allowing

prosecutors to seek information from the media only when doing so is “ essential ” and allother avenues have been exhausted . 28 C.F.R. 50.10 a )(1), ( ) (4) (ii) (A ) .

Significantly, the News Media Guidelines were strengthened in 2015 in response to twohighly controversial incidents that, like this one, exploited the press in service of leak

investigations first, subpoena of phone records belonging to the Associated Press,

inconnection with its investigation of leaked information regarding a Yemeni terrorist plot, 19

and second, DOJ's seizure of the contents of an email account belonging to Fox News

reporter James Rosen, as part of an investigation into leaked information about North Korean

missile tests.20 One of the key changes introduced in 2015 was to extend the News MediaGuidelines to Section 2703 (d) orders , such that applications for such orders require the

approval of the Attorney General , are subject to a presumption of notice, and can be made

only upon a showing “ that the information sought is essential to a successful investigation ,

that other reasonable alternative investigative steps to obtain the information have beenexhausted, and that the request has been narrowly tailored to obtain only the information

17 Although the Guidelines do not create substantive or procedural rights, see 28 C.F.R. 50.10( ), theynonetheless represent the stated policies and practices” of the Department regarding use of lawenforcement tools to obtain records from the news media, see Dep’t of Justice, Report on Review ofNewsMedia Policies, at 1 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/newsmedia.pdf, and the Department has emphasized the need “ to ensure consistent ...application of thepolicy,” Gen. Eric Holder, Memorandum to all Department Employees on Updated Policy RegardingObtaining Informationfrom , or Records of, Members ofthe News Media; and RegardingQuestioning,Arresting, or Charging Member[s ] of the News Media, at 1 ( Jan. 14, 2015 ),https://fas.org/sgp/othergov/doj-media-rev.pdf. It sets a dangerous precedent for the Department to simplyignore settled and carefully crafted DOJ policies when convenient.

18 Josh Gerstein, Holder broadens protectionsfor media, Politico (Jan. 14, 2015 3:04 PM),https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071.

19

Ewen MacAskill , Eric Holder Defends AP Seizure Citing Major Security Threat to Public, The Guardian

(May 15 , 2013), https://www.theguardian.com/world/2013/may/14/ap-phone-records-subpoena-holder

20 N.Y. Times Editorial Board, Another Chilling Leak Investigation , N.Y. Times (May 21 , 2013),http://www.nytimes.com/2013/05/22/opinion/another-chilling-leak-investigation.html.

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necessary for the investigation . 21 The guidelines remained intact throughout the Trump

Administration , even after a review by then -Attorney General Jeff Sessions in 2017.22

Inseekingthe Section2703(d) order at issue, the Governmentappears to have ignored

virtuallyevery aspect ofthe guidelines.23 Eachviolationdetailedbelow shows the

improprietyofthe order and, collectively, they paint a tellingand disconcertingpictureoftheDepartment'smotivesin initiallypursuingthe order.

First, News Media Guidelines are meant to prevent news organizations from being

surprised by subpoenas , 2703 d orders, or search warrants- -as The Times was here — by

requiring prosecutors to notify journalists first. 24 That notice requirement is a critical

safeguard , guaranteeing that journalists — who rely on promises of confidentiality to

encourage sources to come forward with newsworthy information — know if and when the

Government is scrutinizing their communications or records , and are able to potentially

petition the court for relief, as appropriate . The guidelines prohibit prosecutors from seeking

a 2703 (d) order until after they have “ pursued negotiations with the affected member of thenews media. ” 28 C.F.R. 50.10( (5)(iv) (A ) ; see also 50.10 a )( 3 ) -(4 ). Rather than abide

by that policy, DOJ inexplicably did not notify or engage with The New York Times aboutthe information DOJ was interested in; indeed, The New York Times found out about the

order only after its issuance and after its service provider fought to notify a designated

individual at The Times, Deputy General Counsel David McCraw .

To be sure, the NewsMedia Guidelines permit prosecutors to forgo negotiation ifthere are“compelling reasons, ” such as if“negotiations would pose a clear and substantial threat tothe integrity of the investigation, risk grave harmto national security, or present an imminentrisk ofdeath or serious bodily harm.” 28 C.F.R. ( ) ( 5 ) (iv)( A ); see also 50.10 a) (3 )( ) . There is no serious assertion that there is a risk ofdeath or harmto individuals ornational security here. Theoretically, the Government has an interest in keeping itsinvestigation secret, but the public knowledge about the investigation makes it plain that

21

Dep’t of Justice, Report on Review ofNewsMedia Policies, at 3 (July 12, 2013) ,https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news-media.pdf; see 28 C.F.R. 50.10

(2015)

22 Josh Gerstein& MadelineConway, Sessions: DOJreviewingpolicieson mediasubpoenas, Politico( Aug.

4,2017 1:45 PM), https://www.politico.com/story/2017/08/04/doj-reviewing-policies-on-mediasubpoenas -sessions -says -241329.

23 Wecanonlyassumethat, at a minimum, the Departmentfollowedthe guidelines' basicrequirementto

obtain the authorization of the Attorney General or Acting Attorney General in place at the time.

24 Josh Gerstein, Holder broadens protections formedia , Politico (Jan. 14, 2015 3:04 PM),https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071 .

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��

negotiation with The New York Times would not have led to a “ clear and substantial threat

to the integrity of the investigation ,” which is the regulatory requirement . The target of theinvestigation is not The New York Times nor any of its journalists , and the e-mail records for

the four journalists implicated by the order are all electronic records that are fully preserved(which prosecutors would have learned had they engaged with The Times directly ). There is

no basis to conclude that The Times would undermine the investigation . Indeed, The New

York Times routinely works cooperatively with law enforcement and prosecutors , for

example to authenticate published articles and photographs for evidentiary purposes , andregularly negotiates in confidence over DOJ requests for assistance , including in the

prosecution of attorney Greg Craig, in a leak investigation arising from the securitiesinvestigation ofBilly Walters , and in the FBI investigation of the attack on a Times journalist

inside the Capitol on January 6. Moreover , if any “ compelling reasons ” not to notify The

Times existed inJanuary when the court issued the order to prevent notification , they seem to

have quickly evaporated : By March , prosecutors acquiesced and permitted Google to notify

The Times of the order . Plainly, there was never any compelling reason not to contact TheTimes first

Second, the News Media Guidelines expressly guard against requests that implicate

confidential sources . Indeed, the guidelines is among other things, to “ protectconfidential news media sources .” 28 C.F.R. 50.10 ( ) (3 )(ii) ( emphasis added). ThisSection 2703(d) order, by contrast, is improperly designed purely to ferret out such

confidential sources . Critically, compliance with the order could reveal not only the identity

of the purported leaker or leakers who are presumably the target of the investigation, also

the identities ofother confidential sources with no connection to the activity under

investigation. The order therefore undermines the trust that confidential sources place in

reporters and jeopardizes the free flow of truthful information about government activities, in

stark defiance of the requirement that “ [ r] equests ...be treated with care to avoid

interference with newsgathering activities .... 50.10 ( ) 5 )(vii) .

Third, the News Media Guidelines place narrow limits on what information may properly besought from the press. Inparticular, the guidelines provide that requests for informationfrom the news media “ generally should be limited to the verification of publishedinformation and to such surrounding circumstances as relate to the accuracy of the publishedinformation . ” Id. 50.10( )( )( iv) . The guidelines also underscore that requests always“ should be narrowly drawn,” should avoid requiring production of a large volume ofmaterial, ” and should not be used to obtain peripheral, nonessential , or speculative ”

information . Id. (c)(4)(ii)(A) (viii) . Plainly, this Section 2703 (d) order for all noncontent records and other information relating to six New York Times e-mail addresses ,including “ [ i ]information about each electronic communication sent or received by theAccount( s) ” over the course of many months, goes well beyond these limits. See Order,

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AttachmentA , at 2 ( emphasisadded) . The breadthofthe Section2703(d) order, which goes

wellbeyondpublishedinformationand strikes at the most sensitiveinformationin the

custodyofthe newsmedia — the identitiesof confidentialsources— makesa mockeryofthe

guidelines.

Fourth, the News Media Guidelines make clear that using law enforcement tools, includingSection 2703 d) orders, to seek records from the news media should be considered an

extraordinary measure [ ], not [ a] standard investigatory practice[ ] ” id 50.10 a ) (3)reserved only for when the information sought is “ essential ” to the investigation and the

Government has “made all reasonable attempts to obtain the information from alternative,

non-media sources, 50.10( )(4) ii)(A ), (iii) . Here, however, there are plentifulalternative sources. As discussed inour March 16, 2021 letter, the investigation plainly

relates to an article about how former FBI director James Comey handled investigations

related to the presidential candidates in the 2016 election; Comey himself thereforerepresents at least one “ alternative, non-media source ” of information about who knew aboutthe investigations and may have spoken to reporters. Moreover, all of the individuals Comey

interacted with in the relevant time period, who are likely well known to the Government

given Comey’s prominent role and security requirements , are additional alternative sources .

And further alternative sources are all of the electronic communication repositories of

Comey and the non media individuals he communicated with. A Section 2703( d) order for

multiple New York Times email accounts is therefore hardly “ essential” to this investigation.28 C.F.R. 50.10( )(4)(ii) (A ) .

In short, by seeking to gather journalists' information as a first resort, not a last resort; by

refusing to negotiate directly and openly with The New York Times over the scope of the

request ; and by jeopardizing the constitutionally protected flow of information from

confidential sources to reporters, the Section 2703 (d) application at issue shows disdain for

the News Media Guidelines . It also flies in the face of the Biden Administration’s paeans to

the importance of “ a free and independent press ” and commitment to “sharing accurate

information with the American people. 25

In fact, as noted, at his confirmationhearingjust weeks ago, Attorney General Garland

testified that he is “ deeply committed” to the News Media Guidelines and “ would expect to

25 Annie Karni, Jen Psaki'sDebut: No Attacks, No Lectures, No Crowd Size Fixation, N.Y. Times ( Jan. 20,

2021) , https://www.nytimes.com/2021/01/20/us/politics/jen-psaki-press-secretary.html; see also, e.g.,

Kamala Harris ( @KamalaHarris , Twitter ( Jul. 2 , 2017) ,

https://twitter.com/kamalaharris/status/881622505840103424?lang=en ( “ The First Amendment & freedom

of the press are critical to our democracy. ” ).

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re- up them.26 The Department should make good on that commitment by withdrawing itsapplication for the Section 2703 d) order .

TheSection 2703 ( d ) Application Contravenes the Enterprise Data Guidelines

In addition to the multiple violations of the News Media Guidelines , seeking the order alsoviolated separate DOJ guidelines on seeking enterprise data ( the Enterprise Data Guidelines )

that similarly prohibit the Department from engaging in an end -run around The New York

Times.27 The failure to abide by the Enterprise Data Guidelines yet again illustrates why the

2703 (d) application is improper and must be withdrawn .

DOJ's guidelines for requesting enterprise customer data held by cloud service providersdirect that law enforcement should seek data directly from the enterprise” this case, the

news media — whose records are being sought, rather than surreptitiously attempting to dodge

the First and Fourth Amendment issues, as it did here.29 Notably the Enterprise Data

Guidelines expressly advise prosecutors to go directly to the enterprise rather than to the

cloud-storage provider when seeking information from the email accounts for a group ofemployees precisely what the Section 2703 (d) application seeks.30 The Enterprise Data

Guidelines also recommend going directly to the enterprise's general counsel in such a

circumstance. Only ifprosecutors have “ no choice but to seek disclosure directly from the

provider ” —such as when the “enterprise is essentially devoted to criminal activity” or wherethere are practical obstacles such as when “ the enterprise's is not capable of isolatingand disclosing the necessary information ” or when law enforcement is “ unable to find a

trustworthy point of contact the enterprise ” —should they bypass the enterprise.31

None ofthose exceptions applies, and prosecutors hadplenty of other choices here. They

could have gone directly to The Times's general counsel (whose contact information is

26AttorneyGeneralConfirmationHearing, Day 1 , C - SPAN, at 1:35:35to 1:36:20(Feb.22, 2021) ,

https://www.c-span.org/video/?508877-1/attorney-general-confirmation-hearing-day-1.

27

SeekingEnterprise CustomerData Heldby CloudService Providers, U.S. Dep’t of Justice Dec. 2017 ,https://www.justice.gov/criminal-ccips/file/1017511/download.

28 Like the NewsMediaGuidelines, the EnterpriseDataGuidelinesdo not createa cause ofaction. But thevery fact that the Department failed to abide by both sets ofguidelines is revelatory of the Department'sreluctance to openly and directly seek records belonging to the news media— an act that, as it is well aware,

raises grave FirstAmendment concerns.

29

Enterprise Data Guidelines, at 1 .

30 Id at 2 .

31 Id at 2–3.

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readily available ) rather than waiting for Google to force them to do so . And none of the

circumstances that the Enterprise Data Guidelines suggest might warrant bypassing the

enterprise are present here. The Times is not, for example, “ an enterprise ...essentially

devoted to criminal activity target of the investigation.32 did prosecutors haveany concern that The Times would destroy evidence , as demonstrated by the fact that they

have not sent a formal 2703( f) preservation request to The Times or, as we understand , to

Google . All e-mail records at issue have been preserved, which, again, the Government

would have learned, had it notified and negotiated directly with The Times . There also was

not a risk of jeopardizing the investigation because, as explained inour March 16, 2021letter, this investigation was already public and anyone who might be a target of theinvestigation has no access to the data sought. 34

The First Amendment Prohibits Compelled Disclosure of The Times's Records

The Department's failure to seek records directly from The New York Times , as required

under the News Media Guidelines and Enterprise Data Guidelines , is telling. Evidently , the

Department knows that turning reporters into pawns in a leak investigation violates the FirstAmendment the attempt to cut out The New York Times and to shroud the operation

in secrecy when seeking the order . But the Department cannot simply avoid reckoning with

the First Amendment problems associated with compelled disclosure of news media records

implicating confidential sources .

Then-Judge Garland's statements on the importance of the reporter's privilege are

instructive. Dissenting from the denial of rehearing en banc in Lee v . Department of Justice ,Judge Garland recognized that issuing subpoenas to reporters to gather information in

connection with a leak investigation raised serious First Amendment concerns, and reminded

his colleagues to “ be mindful of the preferred position of the First Amendment and the

importance of a vigorous press. ” 428 F.3d 299, 303 (D.C. Cir. 2004) (Garland , J. , dissenting

from the denial of rehearing en banc) (quoting Zerilli v . Smith, 656 F.2d 705 , 712 (D.C. Cir.1981)) . He wrote :

“ [ ] the [ reporter's privilege does not prevail in all but the most exceptional cases ,

its value will be substantially diminished . Unless potential sources are confident thatcompelled disclosure is unlikely , they will be reluctant to disclose any confidential

information to reporters .” [ Zerilli, 656 F.2d at 712. And if our case law has that

consequence , it will undermine the Founders intention to protect the press “ that it

32 Id at 2

33See id at 2

34 See id at 3

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couldbare the secretsof governmentandinformthe people.” New York Times Co. v.UnitedStates, 403 U.S. 713, 717 (Black, J., concurring) .

Lee, 428 F.3d at 303.

Judge Garland's caution applies with full force here . Compelling disclosure of records fromreporters Matt Apuzzo, Adam Goldman, Eric Lichtblau, and Michael Schmidt in the service

of this particular investigation chills other confidential sources from speaking to reporters

and undermines the constitutionally protected freedom of the press. Cf. United States v .

Ahn , 231 F.3d 26, 37 (D.C. Cir. 2000) (recognizing a qualified First Amendment privilege in

criminal proceedings and affirming the district court’s grant of the reporter's motion to

quash )

Indeed, the Government's 2703 d) application is precisely the kind of circumstance that

Justice Powell, inBranzburg v. Hayes, suggested would justify the grant of a motion to

quash on the basis of the reporter's privilege. See Branzburg v. Hayes, 408 U.S. 665 , 709–10

( 1972) (Powell , J., concurring ). Justice Powell noted that “ no harassment ofnewsmen willbe tolerated ” and “ ifthe newsman ... has ... reason to believe that his testimony implicatesconfidential source relationships without a legitimate need of law enforcement, he will have

access to the court on a motion to quash .” Id. Unlike inBranzburg or in In re Miller, which

both involved grand jury subpoenas , here there is no “ legitimate need of law enforcement.

Id see In re Miller, 397 F.3d 964 (D.C. Cir. 2005 ) , superseded by 438 F.3d 1141 (D.C. Cir.2006) . Whereas, ina typical leak investigation, the Government is searching for any clue as

to who may have leaked the information , the Government in this case has known for years

where to begin looking: Insofar as its investigation is into the source or sources for the April

2017 article discussing how Comey handled investigations related to the presidential

candidates in the 2016 election, the Government could seek records from Comey himself

regarding the investigations and with whom he shared information . Moreover, theyears-long delay between the article's publication and the Government's attempt to seek the

information undermines any argument that the Government need [ s ] ” the information .

Particularly in lightof theTrump Administration's history ofantagonism toward the press , it

is difficult to see this Section 2703 d) order as anything more than “harassment of newsmen ”

and an attempt to “ annex news media as an investigative arm of the government.Branzburg, 408 U.S. at 709 .

35 Wenotethatthe individualreporterswhoserecordsare at issuemayhaveotherobjectionsto disclosure.

Since they have not been permitted to know about the Section 2703 d) order , nothing in this letter should

be construed as a waiver of any of their rights .

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TheCommon-Law Reporter'sPrivilegeAlso ProhibitsCompelledDisclosureof TheTimes'sRecords

The common- law reporter'sprivilegesimilarlyprotectsagainst the compelleddisclosureof

confidentialsources.

Although the D.C. Circuit not squarely addressed the issue, a reporter's privilege exists

under the common law , see Jaffee v . Redmond, 518 U.S. 1 8 ( 1996) (“ [ ]he common law is

not immutable but flexible , and by its own principles adapts itself to varying conditions.

( quoting Funk v . United States, 290 U.S. 371, 383 ( 1933)) , and shields against compelled

disclosure of records by members of the news media. See In re Miller, 397 964 (D.C.

Cir. 2005) ( Tatel, J., concurring in thejudgment) ( advocating for a common law privilege);In re Miller, 405 F.3d 17 (D.C. Cir. 2005 ) ( Tatel, J. concurring in the denial of rehearing enbanc) ( same)

In determining whether to recognize an evidentiary privilege , courts look to whether the

privilege serves important private and public interests ; whether those interests outweigh thebenefits of compelling disclosure ; and whether a consensus on recognizing the privilege

exists among the states . Jaffee, 518 U.S. at 10–13 .

First, a reporter's privilege unquestionably serves crucial public and private interests. ] he

press, shielded by the First Amendment has been a mighty catalyst in awakening public

interest in governmental affairs, exposing corruption among public officers and employees

and generally informing the citizenry ofpublic events and occurrences . In re Miller, 438

1141, 1163 (D.C. Cir. 2006) ( Tatel, J., concurring) (quoting Estes v. Texas, 381 U.S.532, 539 ( 1965)). Journalists thus serve “ as a powerful antidote to any abuses of power bygovernmental officials, and as a constitutionally chosen means for keeping officials elected

by the people responsible to all the people whom they were elected to serve .” Mills v.Alabama, 384 U.S. 214, 219 ( 1966) In order to fulfill this vital function , journalists must be

able to rely on and protect confidential sources : “ A journalist's inability to protect the

confidentiality of sources s/ he must use will jeopardize the journalist's ability to obtain

information on a confidential basis . This in turn will seriously erode the essential role played

by the press in the dissemination of information and matters of interest and concern to thepublic. ” Riley v. Chester , 612 F.2d 708 , 714 (3d Cir. 1979). Absent a privilege, allowing

government officials to compel the disclosure of confidential sources can no doubt

constitute a significant intrusion into and, certainly , a chilling effect upon the newsgathering

and editorial processes . ” Maughan v .NL Indus., 524 F. Supp. 93 , 95 (D.D.C. 1981). The

reporter's privilege is thus essential to preserving both a press that is free to investigate andreport and a public that is well- informed on important issues .

GIBSONDUNN

March 26 , 2021

Page 13

Second , these important interests favoring a reporter's privilege outweigh any alleged

evidentiary benefits from compelling reporters to disclose confidential sources . “Compelling

a reporter to disclose the identity of a source may significantly interfere with reporter's

news gathering ability ” because, “ [ u ]nless potential sources are confident that compelleddisclosure is unlikely, they will be reluctant to any confidential information to

reporters.” Zerilli, 656 F.2d at 711–12 . As a result “much of the desirable evidence to

which the government] seek[ s ] access unlikely to come into being. ” In re Miller, 438F.3d at 1168 (Tatel, J. , concurring) ( quoting Jaffee, 518 U.S. at 12). In addition, the

Government does not need to rely on journalists to conduct its investigatory business : In

most cases, it “ can learn what reporters know by replicating their investigative efforts, e.g.,

speaking to the same witnesses and examining the same documents ,” at 1174, and a

journalist's disclosure “ is therefore very rarely essential a government inquiry, N.Y.

Times Co. v. Gonzales, 459 F.3d 160, 183 (2d Cir. 2006) (Sack, J. , dissenting) .

Third, the vast majority of states and the District of Columbia recognize a reporter's

privilege, demonstrating a “ consensus among the States ” that “ indicates that reason and

experience support recognition of the privilege. ” Jaffee, 518 U.S. at 13. Judge Tatel in Inre Miller found undisputed evidence ” that forty -nine states plus the District of Columbia

offer at least qualified protection to reporters sources . 438 F.3d at 1170. In thirty -one states

and the District ofColumbia, state legislatures have passed “ shield laws” granting theseprotections. N.Y. Times Co., 459 F.3d at 182 ( Sack, J. , dissenting). D.C.'s law , for instance,

prohibits any court from “ compel ling any person who is or has been employed by the news

media in a news gathering or news disseminating capacity to disclose . . . [ he source ofany

news or information procured by the person . D.C. Code Ann. The widespread

nature of reporters' privileges at the state level indicates that such protection “ has not

interfered with effective law enforcement.” N.Y. Times Co., 459 at 182 (Sack, J. ,dissenting)

Applying a common law reporter's privilege to the facts at hand protects The New York

Times against the unnecessary compelled disclosure of the information that the

Government's 2703 (d) application seeks . “When a privilege is grounded in constitutionalpolicy, a demonstrated , specific need for evidence must be shown before it can be

overcome.” Riley, 612 F.2d at 716 ( quoting United States v. Nixon, 418 U.S. 683, 713( 1974)) . In a case involving leaks of confidential government information such as this one,

the application of the privilege depends on the government's need for the information and

exhaustion ofalternative sources ,” the public interest in compelling disclosure , measured by

the harm the leak caused ” and “ the public interest in newsgathering, measured by the leaked

information's value.” In re Miller, 438 F.3d at 1175 ( Tatel, J. , concurring). This approach" prevent s] discovery when no public interest supports it and only allows law enforcement

to override the privilege “ when the leaked information does more harm than good. ” Id. This

GIBSONDUNN

March26, 2021

Page 14

fact- specific balancingis particularlyimportantin leakcases such as this one: “ [ ] f leaks

revealmistakesthathigh-levelofficialswouldhave preferredto keep secret, the

administrationmaypursuethe sourcewithexcessivezeal, regardlessofthe leaked

information’spublicvalue. ” Id. at 1176.

Under the particular circumstances of this case , the Government has no need to pursueinformation from The New York Times's journalists . “ All courts which have considered this

issue have agreed that the federal common law privilege of news writers shall not be

breached without a strong showing by those seeking to elicit the information that there is no

other source for the information requested .” Riley, 612 F.2d at 716. Again, unlike thetypical leak of confidential government information, which may be “ extremely difficult to

prove without the reporter's , ” In re Miller, 438 F.3d at 1166 ( Tatel, J. , concurring ), the

Government has alternative means of gleaning information about the Comey-related leaks.

James Comey testified to the Senate on live television that he directed his friend DanielRichman to leak his memos to the press.36 The Governmenthas two ample avenues throughwhichit canpursuethe evidence itmayneed — and, in fact, it has already investigatedDirectorComey in conjunctionwith the leaks.37 As a result, any informationtheGovernmentmayneedcan readilybeobtained through other sources, without breachingtheconfidentialityofreporter-source relationships.

Inaddition, the public interest here strongly favors protecting the newsgathering activities of

The New York Times. The information leaked in this case does not implicate highly

36 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence, S. Hrg. 115–99(June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf ; see also Erik Ortiz & Dafna Linzer , Who Is Daniel Richman , the Columbia ProfessorWho Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM),https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leakedcomey - s -private -n769846 ; Ken Dilanian at al., Comey Wrote Memo Saying Trump Urged Him to DropFlynn Investigation : Sources, NBC News May 17, 2017 , 3:58 AM) https://www.nbcnews.com/news/usnews / comey -wrote -memo - saying -trump -urged - him -drop -flynn -investigation -n760471; Michael S.Schmidt , In a Private Dinner, Trump Demanded Loyalty. Comey Demurred , N.Y. Times (May 11, 2017 ),https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html .

37 Adam Goldman & KatieBenner, Justice Dept.Declinedto ProsecuteComey Over MemosAbout Trump,N.Y. Times ( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html; see also

Off. of the InspectorGen., Dep’tofJustice, 18-04, A ReviewofVarious Actions by the Federal

Bureauof Investigationand Department of Justicein Advance of the 2016 Election( 2018),https://www.justice.gov/file/1071991/download; Off ofThe InspectorGen., U.S. Dep’tofJustice, 19-02,Reportof InvestigationofFormerFederal Bureauof InvestigationDirectorJames Comey’sDisclosureof

Sensitive InvestigativeInformationand HandlingofCertainMemoranda (2019),https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf.

(Cont'don next page)

GIBSONDUNN

March26, 2021

Page 15

sensitive matters of national security, like military strategies or the identities ofundercover

operatives. See In re Miller, 438 F.3d at 1173 ( Tatel, J., concurring ). The Department of

Justice's Office of Inspector General, while concluding that Director Comey violated

department and FBI policies through his leaks, did not identify any concrete harms that hisdisclosure caused to any government interests or ongoing investigations .38 And the lack of

urgency associated with this investigation — which seemingly began years after the article

was first published — belies the notion that the leak caused any real harm . The public interest

indisclosure of the reporters now is thus quite limited. On the other hand, The New

York Times's coverage of the leaked memos provided significant public value on topics of

paramount importance: the conduct of the President of the United States and investigations

into the two candidates in the 2016 presidential election.39 Stories like these, which shedlight on the operation ofgovernment and the political process , serve weighty public interests,

as there is “ practically universal agreement that a major purpose of [the First] Amendment

[is] to protect the free discussion ofgovernmental affairs.” Brown v. Hartlage, 456 U.S. 45,52 ( 1982) .

The Government's Section 2703 (d) request an attempt to compel identification of

reporters confidential sources — would chill the press's vital newsgathering role while

providing limited public value in light of the availability of alternative channels of evidence .

There is simply no basis to conclude that the records sought are indispensable to theinvestigation and could not be obtained elsewhere. Nor is there any public interest in

disclosure sufficient to override the press’s interests in protecting information about its

sources from government intrusion . Accordingly , the invasive and damaging order must

give way to the reporter's privilege under both the First Amendment and the common law.

Conclusion

For all of these reasons , we respectfully request that the Government withdraw its Section

2703( d ) application, in addition to its non- disclosure request , as detailed inour March 16,2021 letter.

38 See Off of The Inspector Gen., U.S. Dep’t of Justice, 19-02, Report of Investigation of Former FederalBureau of Investigation Director James Comey’s Disclosure of Investigative Information andHandling of Certain Memoranda (2019), at 60–61, https://www.oversight.gov/sites/default/files/oigreports /01902.pdf.

39

SeeMattApuzzoet al., Comey Triedto Shieldthe F.B.I.FromPolitics. Then HeShapedanElection, N.Y.

Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.

GIBSONDUNN

March26, 2021

Page 16

We look forward to discussingboththis request and our prior request to lift the gagorder

withyou and your colleagues. Please informus of position on these issues by Friday,

April 2 as we intendto petition the Court for reliefshould we not reach an agreement.

Respectfullysubmitted,

Theodore J. BoutrousJr. AlexanderH. Southwell

Gibson, Dunn& CrutcherLLP

GIBSONDUNN1050ConnecticutAvenue,

Washington, DC 20036-5306

Tel 202.955.8500

www.gibsondunn.com

TheodoreJ. BoutrousJr.

Direct: +1213.229.7804

Fax: +1213.229.6804

TBoutrous@gibsondunn.com

May 26, 2021

VIA ELECTRONIC MAIL

Tejpal ChawlaAssistant United States Attorney

U.S. Attorney's Office for the District of Columbia555 4th Street NW

Washington , DC 20530

Adam Small

Trial AttorneyU.S. Department of Justice

950 Pennsylvania Avenue NW

Washington , DC 20530-00001

Re: In re 2703( d ) Order for Six New York Times EmailAccounts Serviced by Google

LLC

Dear Counsel

We write on behalfof The New York Times Company to respectfully renew our priorrequests that the Government withdraw its application for a Section 2703 (d ) order for recordspertaining to six New York Times e-mail accounts, and seek to vacate the Section 2705(b)

nondisclosure order pertaining to that application. Inrecent days, the highest levels of the

executive branch — including President Bidenhimself have disavowed the Trump

Department of Justice’s newly revealed efforts to records from the news media.

Consistent with this public disavowal ofsuch techniques , we hope and expect that theGovernment will reconsider its position, and we reiterate our intention to seek relief from the

Court should the Government not do so in advance of theupcoming June 17, 2021compliance deadline.

Reportingover the past few weeks has revealedmultipleinstancesof the Trump

Administrationseizingjournalists' recordsor attemptingto unearththe identitiesofcritics

andwhistleblowers activitiesthat the BidenAdministrationhasvociferouslycondemned.Notably, onMay 7, 2021 The WashingtonPost reportedthat threejournalistswere sent

1

See Jan. 5, 2021 Order, In re ApplicationofUSAfor 2703( d) Order for Six EmailAccounts Serviced byGoogle LLC for Investigation of Violation of [ Redacted] , No. 20-sc-3361, Dkt. 2 .

Beijing City Denver Frankfurt Kong AngelesNew York County Alto Francisco Paulo Singapore , D.C.

GIBSON DUNN

May 26, 2021

Page 2

letters, informing them that DOJ had sought and received toll records associated with their

telephone numbers for over three months in 2017. That revelation led to an immediate

outcry among news organizations and First Amendment advocates including the director of

the Reporters Committee for Freedom of the Press , who stressed that DOJ's seizure of Therecords “raises serious First Amendment concerns because it interferes with the free

flow of information to the public .

Subsequent revelations have amplified the criticismof DOJ'sactions. On May 17, 2021, arelease of federal court records revealed that the Trump Justice Department had issued asubpoena to unmask the owner of @NunesAlt, a parody Twitter account that criticized Rep.DevinNunes, andhad obtained a court order to keep the subpoena secret. , onMay20,2021, CNN reported that prosecutors had also secretly sought and obtained the phone and emailrecords of its Pentagon correspondent Barbara Starr, for a two month period in 2017.5Itremains to be seen howmany other, as -yet-unreported incidents there may beofthe TrumpAdministration seeking evidence from reporters or news organizations.

The recent reporting about the Trump Department of Justice's surreptitious collection of

journalists records not only led to a public outcry ; it also prompted questions about thecurrent administration's stance toward such actions . Officials at the highest levels of the

executive branch have unequivocally disavowed these investigative tactics and extolled the

importance of the First Amendment . director of public affairs, Anthony Coley, told

CNN that “ Department leadership will soon meet with reporters to hear their concerns aboutrecent notices and further convey Attorney General Garland's staunch support of and

2 See DevlinBarrett, TrumpJustice Departmentsecretly obtainedPost reporters records, Wash. Post(May 7, 2021),https://www.washingtonpost.com/national-security/trump-justice-dept-seized-postreporters-phone-records/2021/ 05/07/ - - -c3b287e52a01_story.html.

3 See Adam Goldman, Justice Dept. Seized Washington Post's Records, N.Y. Times (May 7 , 2021),

https://www.nytimes.com/2021/05/07/us/politics/justice-department-washington-post-phone-records.html

( quoting Bruce Brown, Executive Director of the Reporters Committee for Freedom of the Press) .

4

See Katie Shepherd, Trump DOJtried to unmask a Twitter account behind mean tweets and badmemes

that teased Rep . Devin Nunes, Wash. Post (May 18 , 2021) ,

https://www.washingtonpost.com/nation/2021/05/18/devin-nunes-twitter-doj .

5 See Jeremy Herb & Jessica Schneider , Trump administration secretly obtained CNN reporter's phone andemail records, CNN (May 20, 2021), https://www.cnn.com/2021/05/20/politics/trump-secretly-obtainedcnn reporter -records/ index.html.

6 We remainconcernedthat the DepartmentofJusticehassought NewYorkTimesrecordsandfailedto

notifyus. On May 10, 2021, afterreadingaboutDOJobtainingWashingtonPostreporters records, we

soughtconfirmationthat DOJhad not seizedphonerecordsofNewYorkTimes reporters, buthavereceivedno suchconfirmation.

GIBSON DUNN

May 26, 2021

Page 3

commitment to a free and independent press. , when White House Press Secretary JenPsaki was asked about the “ administration'sview of the appropriateness ofseeking reportersphone records, ” she told reporters that “ this President is committed, strongly, to the rightsof

the freedom of press ...and to standing up for the rights of journalists, ” and reaffirmed theBiden Justice Department's inten[t] to meet with reporters to hear their concerns aboutrecent notices."

President Biden himself has even seen fit to strongly weigh inon the issue. When asked

whether the Government should seize reporters phone records and e-mails , he was

emphatic : He told a reporter “Absolutely, positively , it's wrong. It's simply, simply wrong,and said in no uncertain terms that he “ will not let that happen . And rather than walk awayfrom the implication that the Biden administration would not permit prosecutors to seize

reporters phone and e-mail records , the White House Press Secretary told reporters that “ the

President spoke clearly that he won't allow the abuse ofpower to intimidate journalists ” and

“ thought it was right to speak out” quite publicly against the Trump Administration'sabuse of “ the powers of the Department of Justice .

"

In short, the new Administration has publicly committed — at the highest levels— to reversingcourse on the Trump Administration's apparent practice of using the media to secretly

investigate critics and whistleblowers . This Administration's seriousness about the issue is

consistent with DOJ's News Media Guidelines which, as you know , require that decisions to

obtain records from members of the news media be made at the highest levels— with the

approval of the Attorney General himself. See 28 C.F.R. 50.10( ) . Pursuant to thoseGuidelines , and to this Administration's stated commitment to First Amendment values ,

there is no justification for continuing to pursue New York Times reporters records or

continuing to impose a gag order .

7Id.

8 Press Briefing by Press Secretary Jen Psaki, May , 2021, https://www.whitehouse.gov/briefingroom / press-briefings / 2021/ 05 /21/press -briefing -by -press - secretary -jen -psaki -may-21-2021 id.(“ A ]gain , they are going to be meeting with journalists to hear their concerns. And certainly , we willcontinue to advocate for freedom of press, freedom of expression in the United States. .

9 CNN, President Biden : wrong’to seize reporters phone records,https://www.cnn.com/videos/politics/2021/05/21/biden-trump-doj-phone-email-records-collins-sot-ebofvpx.cnn;see Alexandra Jaffe, Biden won't allow Justice Dept. to seize reporters records,Assoc. Press(May 21,2021), https://apnews.com/article/arts-and-entertainment-government-and-politics27a0ab87662217be1989a2d5a7465610.Press Briefing by Press Secretary Jen Psaki, May 24, 2021, https://www.whitehouse.gov/briefingroom / press-briefings/2021/ 05/24 / press-briefing-by -press -secretary - jen -psaki-may -24-2021/

10

GIBSON DUNN

May 26, 2021

Page 4

Accordingly , we respectfully reiterate the request in our March 26, 2021 letter that the

Government withdraw its application for a 2703 (d) order for records pertaining to six New

York Times e-mail accounts . We also reiterate the request in our March , 2021 letter that

the Government withdraw its request for a Section 2705 (b ) order preventing disclosure of theexistence or substance of its application and inform the Court that the order may be lifted .

Finally , in keeping with DOJ's stated desire to listen to reporters ' concerns, we request ameeting with Department of Justice leadership to discuss the News Media Guidelines and

their application here .

We look forwardto hearingback from you andwouldappreciatea responseno later than

Wednesday, June2

Respectfullysubmitted,

TheodoreJ. BoutrousJr. AlexanderH. Southwell

Enclosed

March 16, 2021 LetterfromT. Boutrous & A. Southwell

March26, 2021 LetterfromT. Boutrous & A. Southwell

Gibson, Dunn& CrutcherLLP

GIBSONDUNN1050 Connecticut Avenue , N.W.

Washington , DC 20036-5306Tel 202.955.8500

www.gibsondunn.com

TheodoreJ. BoutrousJr.

Direct: +1213.229.7804

Fax: +1213.229.6804

TBoutrous@gibsondunn.com

March 16, 2021

VIAELECTRONICMAIL

Tejpal ChawlaAssistant United States AttorneyU.S. Attorney's Office for the District of Columbia555 4th Street NW

Washington, DC20530

Adam Small

Trial Attorney

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington , DC 20530-00001

Re: Application for 2703(d) Order for Six EmailAccounts ServicedbyGoogleLLC

DearCounsel:

We represent the New York Times. Thank you for speaking earlier today.

As discussedonthe call, we do notbelieve there is a legitimatebasis for continued

nondisclosureofthe Government'sabove-referenced applicationor the January 5 , 2021Order directed to Google LLC. As youknow , inDecember2020, the UnitedStatessubmittedan applicationpursuant to 18 U.S.C. (d) for anorder requiringGoogle todisclose records and other informationassociatedwith six e-mail accountsofthe New York

Times, which isan enterpriseclient of Google. Those accounts correspondto four current orformerNewYork Times reporters. The Governmentalso sought an order pursuantto 18U.S.C. (b) preventingdisclosureofthe existenceor substanceofits applicationor theCourt's orderonthat application. OnJanuary 5 , 2021, MagistrateJudge Zia M.Faruquigranted both orders. Ingrantingnondisclosure, the Court reliedonthe Government'sapparentrepresentationthat notification“ will seriouslyjeopardize the ongoing investigation,

includingby givingtargets an opportunity to destroyor tamper with evidence.” See Jan. 5 ,

2021Order, InreApplicationofUSAfor 2703(d) Order forSixEmailAccounts ServicedbyGoogle LLC forInvestigationofViolation of [Redacted] 20-sc -3361, Dkt 2 ( Order ).But any such representationmust have omittedthe relevant facts and context, whichcannot

support ongoingnondisclosure. The Government'sapplicationappearsto relate to a wellknownleak investigation an investigationthat has had intensemedia and public scrutiny

Beijing Brussels City Dubai Frankfurt Kong Angeles

NewYork County Alto Francisco Paulo , D.C.

GIBSONDUNN

March 16, 2021

Page 2

for an extendedperiodoftime— such that no court examininga full andaccurate record

could find a riskof seriousjeopardy to the investigationfrom disclosureofthe application.

Accordingly, the order requiringnondisclosureisunjustifiedand unconstitutionalunderthe

First Amendment. We thus respectfullyrequestthat you agree to withdraw the

Government'snondisclosurerequest andpromptlyadvise the Court ofyour revisedpositionon nondisclosure.

ApplicableLegalPrinciples

Courts uniformly have found that nondisclosure orders imposed under Section 2705 are both

content-based restrictions on speech and prior restraints . See, e.g. , Matter of Search Warrantfor redacted ] .com , 248 F. Supp. 3d 970, 980 (C.D. Cal . 2017 ) (“ Courts considering theissue have almost uniformly found that Section 2705 (b ) NPOs [notice preclusion orders , orNPOs issued under analogous statutes, are prior restraints and / or content-based

restrictions. “ G ] ag orders content-based because they effectively preclude speechon an entire topic — the ...underlying criminal investigation .” In re Sealing & NonDisclosure of Pen/Trap / 2703(d ) Orders, 562 F. Supp . 2d 876 , 881 (S.D. Tex . 2008 ) . Such“ naked prohibition [ s] against disclosure [ are fairly characterized as a regulation of purespeech .” Bartnicki v . Vopper, 532 U.S. 514, 526 (2001 ). Orders prohibiting disclosure ofGovernment electronic search and seizure applications are also paradigmatic prior restraints .

See, e.g. , In re Sealing & Non - Disclosure of Pen/ Trap /2703(d ) Orders, 562 F. Supp. at 881 ;Microsoft Corp. v. U.S. Dep’t of Justice, 223 F. Supp. 3d 887 , 905 (W.D. Wash . 2017 ) .

Courts have also uniformly held that such prior restraints and content -based restrictions on

pure speech are subject to the strictest form of First Amendment scrutiny and “ bear[] a heavy

presumption against [their constitutional validity. ” Se Promotions, Ltd. v. Conrad, 420

U.S. 546 , 558 ( 1975) . As the Supreme Court has recognized “ prior restraints on speech and

publication are the most serious and the least tolerable infringement on First Amendmentrights.” Nebraska Press Ass n Stuart, 427 U.S. 539, 559 (1976) ; see also, e.g. , Alexander

v . United States, 509 U.S. 544, 554 ( 1993) ( recognizing that the First Amendment

“ provid [ es] greater protection from prior restraints than from subsequent punishments ”) .Under strict scrutiny, the Government must show that the prior restraint “ furthers a

compelling interest and is narrowly tailored to achieve that interest. ” Reed v . Town ofGilbert , 576 U.S. 155, 171 (2015) .

Section 2705 (b) of the Stored Communications Act permits a governmental entity acting

under Section 2703 to apply, in certain enumerated circumstances , for a protective order,

prohibiting providers of electronic communications services from notifying others of their

receipt of legal process. In particular, Section 2705 (b) provides that a court may enter suchan order only if it determines that notification of the existence of the warrant, subpoena , or

GIBSONDUNN

March 16, 2021

Page 3

court orderwould reasonablyresult in: “ ( 1) endangeringthe life or physicalsafety ofan

individual; ( ) flight fromprosecution; (3) destructionofor tamperingwith evidence; (4)

intimidationofpotentialwitnesses; or (5) otherwiseseriouslyjeopardizingan investigation

or undulydelayinga trial. ” 18 U.S.C. 2705(b) .

There Is No Basis For Nondisclosure In These Circumstances

The uniquefacts andcircumstanceshere, whichwere likelynot fully providedto the Court,

makeclearthatthe Governmentcannotsustainits heavyburdento justifyongoingnondisclosure.

While Section 2705 (b) is routinely invoked for gag orders , most of the statutory bases fornondisclosure are not implicated here . The Order was granted on the basis that there was

purportedly “ reason to believe ” that disclosure would “ seriously jeopardize the ongoing

investigation ,” which would giv [ e] targets an opportunity to destroy or tamper withevidence . ” Order at 1 (citing 18 U.S.C. (b) (3) , (b) (5)) . The Court did not find reason

to believe disclosure presented a risk of harm to life or safety, of a flight from prosecution, orof intimidation of potential witnesses .

To be sure, whenever there is a criminal investigation , there is typically some chance that theinvestigation being made public could jeopardize that investigation. Indeed, there are likely

many instances when the need to preserve secrecy around an ongoing investigation may

constitute a compelling interest justifying a temporary nondisclosure order , as when the

criminal conduct ongoing and there is a credible risk that disclosure would prompttampering with easily-destroyed evidence or flight from prosecution . E.g., Matter of

Subpoena 2018R00776 , 947 F.3d 148, 156 ( Cir. 2020 ); In re Search of Info. AssociatedWith Specified E -Mail Accts ., 470 F. Supp . 3d 285, 291 (E.D.N.Y. 2019) (“Because the

criminal conduct is ongoing , there is a danger that ifwitnesses and perpetrators learn of theSearch Warrant, they will flee, alter or conceal their behavior, and destroy evidence . Secrecy

of such an ongoing criminal investigation thus constitutes a compelling Government

interest .

Eveninsuchinstances, courts haveseenfit to pushbackonthe breadthofthe nondisclosureorders sought

by the Government, inrecognitionof the FirstAmendmentvalues at stake. Forexample, numerouscourtshaverejected indefinitegag orders as unconstitutional, imposingexpirationdates on sealingand nondisclosureprovisions, see, e.g., In reSealing& Non-Disclosure of Pen/ Trap/2703(d ) Orders, 562 F. Supp.2d 876, 883 (S.D. Tex . 2008) ; In re Search WarrantIssuedto Google, Inc., 269 F. Supp. 3d 1205, 1216(N.D.Ala. 2017) ; MatterofSearchWarrantfor redacted].com 248 F. Supp. 970, 983 (C.D. Cal.2017) , or simplydenyingapplicationsfor indefiniteorders, see, e.g., MatterofGrandJury Subpoenafor[Redacted] @ Yahoo.com, 79 F. Supp. 3d 1091, 1091(N.D.Cal. 2015) .

GIBSONDUNN

March 16, 2021

Page 4

Butunderthe specificand uniquecircumstancesof this case— where boththe obvioustargets

ofthe investigationand the publicat large have longknownabout the investigation's

existence — there is no reasonto believethe investigationwill be seriouslycompromised,

whichwas the onlypurportedbasis for nondisclosurehere.

The Order implicates the email accounts for four New York Times reporters Matt Apuzzo ,Michael S. Schmidt, Adam Goldman, and Eric Lichtblau — between January 14, 2017, and

April 30 , 2017. That time frame is a notable one in our recent political history and during

that period, those four reporters co -wrote a widely -read article for The New York Times

discussing how then -FBI director James Comey handled investigations related to thepresidential candidates in the 2016 election (the “ Article ). Article’s sources includedinterviews with “ 30 current and former ” officials who “ discussed the investigations on the

condition of anonymity because they were not authorized to speak to reporters.

It is patently clear that the Government's investigation is of the person or persons who weresources to The New York Times reporters whose records are sought by the Order. But theGovernment's interest in and investigation related such issues is publicly known and has

been highly publicized . More than a year ago , multiple news outlets reported on the front

page that “ [ ] enforcement officials are scrutinizing ” that very Article in an “ unusual ”

investigation to determine who disclosed the allegedly classified information discussedtherein .

2

MattApuzzoet al. , ComeyTriedto Shieldthe F.B.I.FromPolitics. ThenHeShapedanElection, N.Y.

Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.

3Id

4

The reportersactedentirely lawfully inreceivingand publishingthe information, however it was obtained.See, e.g., Smith v. DailyMailPublishingCo., 443 U.S. 97, 102 ( 1979) (“ S ] tate action to punishthe

publicationof truthful informationseldomcan satisfy constitutionalstandards. ; Bartnickiv . Vopper, 532

U.S. 514, 535 (holdingthat even “ illegal conduct by the source that obtainedthe information“ does notsuffice to removethe FirstAmendmentshield from speechabout a matterofpublic concern”) . Further, thenondisclosureorder abridgesThe NewYork Times and its reporters legitimate First and Fourth

Amendmentinterests, as it preventsthe attorneys coveredunder the order from conferringwith thereporterswhose recordsare being sought about, inter alia, the relevanceof the requested records, any

confidential sources that may be disclosedby the records, and privacy interests implicatedby disclosure.

5 Adam Goldman, Justice Dept.InvestigatingYears - OldLeaks andAppears Focusedon Comey, N.Y. Times( Jan. 16, 2020), https://www.nytimes.com/2020/01/16/us/politics/leak-investigation-james-comey.html; seealso, e.g., Matt Zapotosky,Federalprosecutors exploreyears-oldmedia disclosure, raisingfears Trump isusingJustice Dept. for politicalgain, Wash.Post (Jan. 17, 2020),https://www.washingtonpost.com/national-security/federal-prosecutors-explore-years-old-mediadisclosure-raising-fears - trump-is-using-justice -dept- for -political- gain /2020 /01/ 16 /6bc56b68-38c2-11eabb7b-265f4554af6d_story.html; Alison Durkee, TheDOJIs InvestigatingJames Comey Over Years Old

( nextpage)

GIBSONDUNN

March 16, 2021

Page 5

Any target of the investigation has therefore known about it for over a year . As such, there is

no reasonable basis to believe the investigation would be seriously jeopardized by the fact of

the Government's application being known. Nor is there any risk that the information the

Government seeks would be destroyed or tampered with, since the Government seekselectronic evidence that , to our knowledge, has been preserved by The New York Times '

service provider, and anyone who might be a target of the investigation has no control over

or access to such electronic evidence . The Government thus does not have a compelling

interest in nondisclosure of its application and related investigation and a gag order is

unsupportable. See In re Grand Jury Subpoena Issued to Twitter, 2017 WL , at * 6

(holding that a gag order was not justified where the investigation was already public, notingthat a mere “ interest ingrand jury secrecy does not, without more, provide a statutory basis

for a nondisclosure order under Section 2705 (b ) ), report and recommendation adopted,2017 WL 9287147 (N.D. Tex. Oct. 19, 2017) .

Even ifthe investigation to which the Government's 2703 (d) application pertains is in someway different from the investigation revealed in the January 2020 reporting, years of intense

media attention have long put any potential suspect on notice that a criminal investigation

was likely. Nearly 20 million people watching on live television heard Director Comey tella Senate committee a few months after the Article published that he directed a friend to givea memo to the press .? The Department of Justice looked into whether Director Comey

directed his friend to turn over the contents of a memo detailing Director Comey’sinteractions with President Trump to The New York Times , but ultimately declined to

Leaks,Vanity Fair (Jan. 16, 2020), https://www.vanityfair.com/news/2020/01/james-comey-dojinvestigation-leaks

6 Lisa Richwine,About 19.5million U.S. viewers watchedComey testify about Trump, Reuters (June 9,2017),https://www.reuters.com/article/us-usa-trump-russia-ratings/about-19-5-million-u-s-viewerswatched-comey-testify-about-trump- idUSKBN1902X6.

7 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence , S. Hrg. 115–99( June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf; see Erik Ortiz and Dafna Linzer, Who Is Daniel Richman, the Columbia Professor WhoLeaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM),https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leakedcomey -s-private-n769846 ; Ken Dilanian, Dafna Linzer, and Alex Johnson, Comey Wrote Memo SayingTrump Urged Him to Drop Flynn Investigation : Sources, NBC News (May 17, 2017, 3:58 AM ),https://www.nbcnews.com/news/us-news/comey-wrote-memo-saying-trump-urged-him-drop-flynninvestigation -n760471; Michael S. Schmidt, Ina Private Dinner , Trump Demanded Loyalty. ComeyDemurred, N.Y. Times (May 11, 2017 ), https://www.nytimes.com/2017/05/11/us/politics/trump-comeyfiring.html

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prosecute Director Comey. The Department ofJustice's inspector general, moreover,conducted two highly publicized investigations ofDirector Comey’s actions that resulted in

public reports and foretold further investigations . The first report detailed the decisions

described inthe Article related to the 2016 election, warning that “ a culture of unauthorized

media contacts” permeated the FBI and recommended that the FBI consider whetherdisciplinary provisions and penalties are sufficient to deter such improper conduct. The

second report, while noting that the DOJ decided not to prosecute Director Comey,

concluded that disclosing the memo “ set a dangerous example for personnel who the FBI

“ depends on ...not to disclose sensitive information.

Moreover, the then -Presidentexplicitlyand quitepubliclycalledfor a criminalinvestigation

as he repeatedlycriticizedDirectorComey, tweetingthat he shouldbe prosecuted”becausehe violatedtheEspionageAct. And then-AttorneyGeneralJeffSessionshad

publiclyannouncedin2017 that theadministrationhad “ tripledthe numberofactiveleakinvestigations andwarnedthat “ criminals” who disclosesensitiveinformation“ are, in fact,beinginvestigatedand prosecuted

8AdamGoldman& KatieBenner, JusticeDept.Declinedto ProsecuteComey OverMemosAboutTrump,

N.Y.Times( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html.

9 Off. ofThe InspectorGen.,U.S. Dep’tofJustice, 18-04,A ReviewofVarious Actions by the FederalBureauof Investigationand DepartmentofJustice inAdvance of the 2016 Election(2018) at 430, 500,https://oig.justice.gov/news/doj-oig-releases-report-various-actions-federal-bureau-investigation-anddepartment-justice.

10 Off of The Inspector Gen. , U.S. Dep’t of Justice , 19-02, Report of Investigation of Former Federal Bureau

of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling

of Certain Memoranda (2019 ) , at 60, https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf .

11

DonaldTrump @realDonaldTrump), Twitter ( April 13, 2018) ,

https://twitter.com/realDonaldTrump/status/984763579210633216[ https://web.archive.org/web/20180619011759/https://twitter.com/realDonaldTrump/status/984763579210

633216

12

DonaldTrump ( @realDonaldTrump), Twitter, (Aug. 31, 2019) ,https://twitter.com/realdonaldtrump/status/1167771834059755520

[ https://web.archive.org/web/20190831143616/https://twitter.com/realdonaldtrump/status/1167771834059

755520

13 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks at Briefing on Leaksof Classified Materials Threatening National Security (Aug. , 2017),https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-delivers-remarks-briefing-leaks-classifiedmaterials see generally Ken Klippenstein, Trump Administration Referred a Record Number of LeaksforCriminal Investigation, The Intercept (Mar. 2, 2021, 6:51 PM), https://theintercept.com/2021/03/02/trumpleaks-criminal-investigation

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Inshort, anypotentialtarget indeed, the entirepublic hasknownfor years, from

congressionalinquiries, agencyprobes, intensemediacoverage, and formerPresident

Trump's own words, ofthe existenceand threat ofcriminal investigationsrelatedto alleged

leaks. Thus, on the specificfacts relevantto the investigationhere, the Governmentcannotmeet its burdenofshowingthat disclosureof the instantapplicationwould seriously

jeopardizeits investigation, as it mustunder the relevantstatuteand theFirstAmendment.

Conclusion

Whilewe recognizethat the Courtmade the requisitestatutory findings, we submitthe

Government'sapplicationlikelydidnot providethe Courtwith the full andnecessary

context as laidout hereinand that, in lightofthese facts, there is no reasonablebasis tobelievedisclosurewouldseriouslyjeopardizethe investigation. Forall ofthese reasons,

nondisclosureofthe existenceand substanceofthe Government's2703 d) applicationand

the order grantingthat applicationis entirelyunjustified. The law and interests of justicemandatethat the nondisclosureorderbe withdrawn.

Please confirm by 12pm ET on Friday, March 19 that the Government will withdraw its

request for the nondisclosure order in this matter. As discussed, we would appreciate the

opportunity to meet with you and any appropriate supervisors within your respective officesto discuss this further.

Thank you for your consideration .

Respectfullysubmitted,

Theodore J. Boutrous Jr. AlexanderH. Southwell

14

Openness regarding Section 2703 orders and applications enhances the basic fairness” of the criminalsystem and “ the appearance of fairness so essential to public confidence in the system .” Press -EnterpriseCo. v. Superior Court of California, 464 U.S. 501, 508 ( 1984) ; see also Inre Sealing & Non- Disclosure ofPen/ Trap / 2703( ) Orders, 562 F. Supp. 2d at 891 ( recognizingthat “documentsauthored or generatedby

the court itselfin discharging its public duties,” such as Section 2703 d) orders, are “ [ i ]n the top drawer of

judicial records” and “ hardly ever closed to the public ) ; Mills v . Alabama, 384 U.S. 213, 219 ( 1966)( recognizingthat the First Amendment interests in free and informed“ discussionofgovernmental affairs”are paramount)

Gibson, Dunn& CrutcherLLPGIBSON DUNN

1050ConnecticutAvenue N.W.

Washington, DC 20036-5306

Tel 202.955.8500

www.gibsondunn.com

TheodoreJ. BoutrousJr.

Direct: +1213.229.7804

Fax: +1213.229.6804

TBoutrous@gibsondunn.com

March 26,

VIAELECTRONICMAIL

Tejpal ChawlaAssistant United States Attorney

U.S. Attorney's Office for the District of Columbia555 4th Street NW

Washington, DC 20530

Adam Small

Trial Attorney

U.S. Department of Justice950 Pennsylvania Avenue NW

Washington , DC 20530-00001

Re: In re 2703 ( d ) Order for Six New York Times EmailAccounts Serviced byGoogleLLC

DearCounsel

We write as counsel to The New York Times Company to respectfully request that theGovernment withdraw its application for a 2703(d) order for six New York Times e -mailaccounts . See Jan. 5 , 2021 Order , In re Application of USA for 2703 (d ) Order for Six EmailAccounts Serviced by Google LLC for Investigation of Violation of [ Redacted ], No. 20 -sc3361, Dkt. 2 ( Order .

As you know , on March 16, 2021, we wrote to object to the nondisclosure order , which we

believe is improper under both 18 U.S.C. (b ) and the First Amendment. Thenondisclosure order is in itself an impermissible restraint on the press's freedom to discuss

and report on an issue of significant public concern . But it also represents an attempt to

shroud insecrecy a more significant problem with the underlying Section 2703 d)

application and order . That order is both legally improper and contrary to thisAdministration's stated positions on the News Media Guidelines and the constitutional

guarantee of a free and independent press . Using the press as an arm of an investigation runs

rough-shod over the First Amendment and flouts the reporter's privilege and the Departmentof Justice's own guidelines .

Beijing Brussels Century City Denver Frankfurt Kong London Los Angeles

New York County Palo Alto San Francisco Paulo Singapore Washington , D.C.

GIBSONDUNN

March26, 2021

Page 2

As nominee for his current position , Attorney General Merrick Garland testified that he is

“ deeply committed” to the News Media Guidelines . As a D.C. Circuit judge , he remindedhis colleagues that, unless the reporter's privilege is vigorously protected , confidential

sources will be reluctant to disclose any confidential information to reporters ” —a result , he

cautioned , that would “ undermine the Founders intention to protect the press.” Lee v. Dep'tof Justice , 428 F.3d 299 , 303 (D.C. Cir. 2004) (Garland, J., dissenting) ( citations omitted ).In keeping with these important principles , we urge the Department to reconsider andwithdraw its Section 2703 d) application .

Background

The investigation and Section 2703 d ) order at issue here sit at the intersection of two

frequent targets of former President Trump: former FBIDirector James Comey and themedia

Former President Trump has long harbored animosity toward Director Comey. A few days

after Comey refused to tell Congress whether Trump or members of his campaign were

under criminal investigation for possible collusion with Russia, Trump fired him . Andwhen Trump suggested he had tape recordings of his conversations with Comey , Comey

leaked a memo to the press that sparked the special counsel's investigation2 and, it seems ,

this leak investigation as well.3 Trump's vendetta against Comey grew even further from

there . When reports emerged that the FBIhad opened an investigation into whether Trumpwas a Russian agent, Trump lashed out, tweeting that Comey and others had “ tried to do a

number on your President and that he was a liar “caught in the act. ” Over the years , Trump

1

2

Eric Tucker, The Comeyfiring,as retoldby the Mueller report, Associated Press (Apr. 23, 2019),https://apnews.com/article/4fflecb621884a728b25e62661257ef0.

Open Hearingwith FormerFBIDirector James ComeyBefore S. Comm. On Intelligence, S. Hrg. 115–99(June 8, 2017) , at 27 ,https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf.

3 Matt Zapotosky, Federal prosecutors explore years old media disclosure , raisingfears Trump is usingJustice Dept. for politicalgain, Wash . Post (Jan. 16, 2020) https://www.washingtonpost.com/nationalsecurity / federal -prosecutors -explore -years -old -media -disclosure -raising -fears - trump-is -using -justice -deptfor -political -gain /2020/ 01/ 16 / 6bc56b68-38c2-11ea 265f4554af6d_story.html.

4 Richard Gonzales & Sasha Ingber, Trump Lashes Out At FBIAfter NY Times ' Reported On Inquiry IntoHis Intentions, Public Radio (Jan. 11, 2019 10:40 PM),https://www.npr.org/2019/01/11/684737549/white-house-denounces-ny-times-report-on-fbi-investigationof-trump -russia - s.

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not only lobbed insults at Comey calling him, among other things, a “ DIRTY COP”

" crazy a real nut job also threatened him with imprisonment and suggested he

committed treason. Indeed, former officials told The Washington Post that they worried

that this very investigation's purpose was to “ dredg [ e ] up old allegations of wrongdoing tohelp Trump go after” Comey. Insofar as this investigation is tied up with Trump'scampaign of retaliation against Comey, it was improper from the start and, certainly , ought

no longer to be pursued now that Trump is no longer in office and the Department of Justicehas new leadership .

The investigationalso appears to be another salvo in former PresidentTrump’s war on the

press. Indeed, former officials have said his hatred of the media” fueled this very

investigation. 10 Inhis first two years in office, eleven percentofTrump's thousands of

tweets “ insulted or criticizedjournalists and outlets, or condemnedand denigrated the newsmedia as a whole. He told CBS News that he did so to “ discredit and demean” the

5

DonaldTrump ( @realDonaldTrump), Twitter(Apr. 30, 2020) ,

https://web.archive.org/web/20200501095446/https://twitter.com/realdonaldtrump/status/1255832117583495169

6

Matt Apuzzo, Maggie Haberman, and Matthew Rosenberg, Trump Told Russians That Firing Job

Comey EasedPressure From Investigation, N.Y. Times (May 19, 2017) ,

https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html.

7 Donald Trump ( @realDonaldTrump), Twitter (Dec. 15 , 2019) ,

https://twitter.com/realDonaldTrump/status/1206281389991219200 ,

[ https://web.archive.org/web/20200111121930/https://twitter.com/realDonaldTrump/status/120628138999

1219200

8

DylanStableford, Trump calls treason’on Comey, McCabeand a number of people', Yahoo (May23 , 2019) , https://news.yahoo.com/trump-comey-mc-cabe-strzok-page-guilty-of-treason-214458786.html.

9 Matt Zapotosky , Federal prosecutors explore years old media disclosure , raising fears Trump is usingJustice Dept. for politicalgain, Wash . Post ( Jan. 16, 2020 ), https://www.washingtonpost.com/nationalsecurity / federal-prosecutors -explore -years -old -media - disclosure -raising - fears -trump -is -using -for -political-gain / 2020 /01/ 16 /6bc56b68-38c2-1 bb7b -265f4554af6d_story.html .

10 Matt Zapotosky,Federalprosecutors exploreyears -oldmedia disclosure, raisingfears Trump is usingJustice Dept. for politicalgain, Wash. Post (Jan. 16, 2020), https://www.washingtonpost.com/nationalsecurity / federal-prosecutors-explore-years-old-media-disclosure -raising-fears -trump - is-using-justice -deptfor-political-gain / 2020 /01/ 16 /6bc56b68-38c2-11ea-bb7b -265f4554af6d_story.html.

Stephanie Sugars,Fromfake news to enemy of thepeople:An anatomy ofTrump's tweets,Committee toProtect Journalists (Jan. 30, 2019 10:00 AM), https://cpj.org/2019/01/trump-twitter-press-fake-newsenemy-people

11

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Page4

media. He has directed particular ire at The New York Times and The Washington Post,

whose stories are at the heart of this investigation calling them “ two of the most dishonestmedia outlets around. Truly, the Enemy of the People ! And these attacks were not merely

rhetorical : his re-election campaign filed libel lawsuits against both The Times and The

Post, while his administration “ stepped up prosecutions of news sources , interfered in thebusiness of media owners , [ and] harassed journalists crossing U.S. borders.

In short, this investigation appears to be inextricably intertwined with former President

Trump's personal grievances against Director Comey and The New York Times . Since the

investigation launched, President Biden has taken office, touting his “commitment to

reaffirming the Department of Justice as a pillar of independence and integrity ” and toensuring that it functions as the American lawyer's not the President's law

firm . In keeping with that commitment , the Department should withdraw the 2703 (d)

application , which is contrary to the Department of Justice's own News Media Guidelines

and Enterprise Data Guidelines , as well as to the protections of the reporter's privilege underboth the First Amendment and the common law.

The Section 2703 ( d ) Order Contravenes the NewsMedia Guidelines

own guidelines for seeking information from the news media in criminal

investigations (the News Media Guidelines) prohibit the Government from doing exactly

what it has tried to do here — unjustifiably conscript the press into serving as an investigativearm of the Government.

12 Lesley Stahl: Trump admitted mission to “discredit press, CBS News (May 23, 2018 5:39 AM) ,https://www.cbsnews.com/news/lesley-stahl-donald-trump-said-attacking-press-to-discredit-negativestories /

13 Donald Trump ( @realDonaldTrump , Twitter ( Apr. 19, 2020) ,

https://web.archive.org/web/20190421100338/https://twitter.com/realdonaldtrump/status/11193507500967

85409

14

See Complaint, DonaldJ. Trump forPresident, Inc. v . TheNew York Times Co., No. 152099/2020(Cnty. Supreme Ct. Feb. 26, 2020) ; Complaint, DonaldJ. Trump for President, Inc. v . WP Co.LLC, No.1: 20 -cv - 00626 -KBJ (D.D.C.Mar. 3 , 2020) . The NewYork Times actionhas since been dismissed. See

also DonaldJ. Trump forPresident, Inc.v . The New York Times Co., 2021WL 938979, at * 1-2 (N.Y. .Sup. Ct. Mar. 9, 2021) .

15The TrumpAdministrationandthe Media, Committeeto ProtectJournalists( April 16, 2020) ,

https://cpj.org/reports/2020/04/trump-media-attacks-credibility-leaks/.

16 Biden vows to restore faith in U.S. law with Justice Dept nominees, Reuters (Jan. 7, 2021),https://www.reuters.com/article/us-usa-biden-attorney-general/biden-vows-to-restore-faith-in-u-s-law-withjustice-dept- nominees-idUSKBN29C1FY.

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The News Media Guidelines were introduced by the Department of Justice — and codified

into federal regulations nearly fifty years ago , in response to concerns about the growing

number of subpoenas to compel journalists to divulge confidential sources . Recognizing the

important principle that the freedom of the press can be no broader than the freedom ofmembers of the news media to investigate and report the news, ” the guidelines serve as an

important bulwark against law enforcement encroachments on that freedom , by allowing

prosecutors to seek information from the media only when doing so is “ essential ” and allother avenues have been exhausted . 28 C.F.R. 50.10 a )(1), ( ) (4) (ii) (A ) .

Significantly, the News Media Guidelines were strengthened in 2015 in response to twohighly controversial incidents that, like this one, exploited the press in service of leak

investigations first, subpoena of phone records belonging to the Associated Press,

inconnection with its investigation of leaked information regarding a Yemeni terrorist plot, 19

and second, DOJ's seizure of the contents of an email account belonging to Fox News

reporter James Rosen, as part of an investigation into leaked information about North Korean

missile tests.20 One of the key changes introduced in 2015 was to extend the News MediaGuidelines to Section 2703 (d) orders , such that applications for such orders require the

approval of the Attorney General , are subject to a presumption of notice, and can be made

only upon a showing “ that the information sought is essential to a successful investigation ,

that other reasonable alternative investigative steps to obtain the information have beenexhausted, and that the request has been narrowly tailored to obtain only the information

17 Although the Guidelines do not create substantive or procedural rights, see 28 C.F.R. 50.10( ), theynonetheless represent the stated policies and practices” of the Department regarding use of lawenforcement tools to obtain records from the news media, see Dep’t of Justice, Report on Review ofNewsMedia Policies, at 1 (July 12, 2013) , https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/newsmedia.pdf, and the Department has emphasized the need “ to ensure consistent ...application of thepolicy,” Gen. Eric Holder, Memorandum to all Department Employees on Updated Policy RegardingObtaining Informationfrom , or Records of, Members ofthe News Media; and RegardingQuestioning,Arresting, or Charging Member[s ] of the News Media, at 1 ( Jan. 14, 2015 ),https://fas.org/sgp/othergov/doj-media-rev.pdf. It sets a dangerous precedent for the Department to simplyignore settled and carefully crafted DOJ policies when convenient.

18 Josh Gerstein, Holder broadens protectionsfor media, Politico (Jan. 14, 2015 3:04 PM),https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071.

19

Ewen MacAskill , Eric Holder Defends AP Seizure Citing Major Security Threat to Public, The Guardian

(May 15 , 2013), https://www.theguardian.com/world/2013/may/14/ap-phone-records-subpoena-holder

20 N.Y. Times Editorial Board, Another Chilling Leak Investigation , N.Y. Times (May 21 , 2013),http://www.nytimes.com/2013/05/22/opinion/another-chilling-leak-investigation.html.

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necessary for the investigation . 21 The guidelines remained intact throughout the Trump

Administration , even after a review by then -Attorney General Jeff Sessions in 2017.22

Inseekingthe Section2703(d) order at issue, the Governmentappears to have ignored

virtuallyevery aspect ofthe guidelines.23 Eachviolationdetailedbelow shows the

improprietyofthe order and, collectively, they paint a tellingand disconcertingpictureoftheDepartment'smotivesin initiallypursuingthe order.

First, News Media Guidelines are meant to prevent news organizations from being

surprised by subpoenas , 2703 d orders, or search warrants- -as The Times was here — by

requiring prosecutors to notify journalists first. 24 That notice requirement is a critical

safeguard , guaranteeing that journalists — who rely on promises of confidentiality to

encourage sources to come forward with newsworthy information — know if and when the

Government is scrutinizing their communications or records , and are able to potentially

petition the court for relief, as appropriate . The guidelines prohibit prosecutors from seeking

a 2703 (d) order until after they have “ pursued negotiations with the affected member of thenews media. ” 28 C.F.R. 50.10( (5)(iv) (A ) ; see also 50.10 a )( 3 ) -(4 ). Rather than abide

by that policy, DOJ inexplicably did not notify or engage with The New York Times aboutthe information DOJ was interested in; indeed, The New York Times found out about the

order only after its issuance and after its service provider fought to notify a designated

individual at The Times, Deputy General Counsel David McCraw .

To be sure, the NewsMedia Guidelines permit prosecutors to forgo negotiation ifthere are“compelling reasons, ” such as if“negotiations would pose a clear and substantial threat tothe integrity of the investigation, risk grave harmto national security, or present an imminentrisk ofdeath or serious bodily harm.” 28 C.F.R. ( ) ( 5 ) (iv)( A ); see also 50.10 a) (3 )( ) . There is no serious assertion that there is a risk ofdeath or harmto individuals ornational security here. Theoretically, the Government has an interest in keeping itsinvestigation secret, but the public knowledge about the investigation makes it plain that

21

Dep’t of Justice, Report on Review ofNewsMedia Policies, at 3 (July 12, 2013) ,https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news-media.pdf; see 28 C.F.R. 50.10

(2015)

22 Josh Gerstein& MadelineConway, Sessions: DOJreviewingpolicieson mediasubpoenas, Politico( Aug.

4,2017 1:45 PM), https://www.politico.com/story/2017/08/04/doj-reviewing-policies-on-mediasubpoenas -sessions -says -241329.

23 Wecanonlyassumethat, at a minimum, the Departmentfollowedthe guidelines' basicrequirementto

obtain the authorization of the Attorney General or Acting Attorney General in place at the time.

24 Josh Gerstein, Holder broadens protections formedia , Politico (Jan. 14, 2015 3:04 PM),https://www.politico.com/blogs/under-the-radar/2015/01/holder-broadens-protections-for-media-201071 .

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Page 7

��

negotiation with The New York Times would not have led to a “ clear and substantial threat

to the integrity of the investigation ,” which is the regulatory requirement . The target of theinvestigation is not The New York Times nor any of its journalists , and the e-mail records for

the four journalists implicated by the order are all electronic records that are fully preserved(which prosecutors would have learned had they engaged with The Times directly ). There is

no basis to conclude that The Times would undermine the investigation . Indeed, The New

York Times routinely works cooperatively with law enforcement and prosecutors , for

example to authenticate published articles and photographs for evidentiary purposes , andregularly negotiates in confidence over DOJ requests for assistance , including in the

prosecution of attorney Greg Craig, in a leak investigation arising from the securitiesinvestigation ofBilly Walters , and in the FBI investigation of the attack on a Times journalist

inside the Capitol on January 6. Moreover , if any “ compelling reasons ” not to notify The

Times existed inJanuary when the court issued the order to prevent notification , they seem to

have quickly evaporated : By March , prosecutors acquiesced and permitted Google to notify

The Times of the order . Plainly, there was never any compelling reason not to contact TheTimes first

Second, the News Media Guidelines expressly guard against requests that implicate

confidential sources . Indeed, the guidelines is among other things, to “ protectconfidential news media sources .” 28 C.F.R. 50.10 ( ) (3 )(ii) ( emphasis added). ThisSection 2703(d) order, by contrast, is improperly designed purely to ferret out such

confidential sources . Critically, compliance with the order could reveal not only the identity

of the purported leaker or leakers who are presumably the target of the investigation, also

the identities ofother confidential sources with no connection to the activity under

investigation. The order therefore undermines the trust that confidential sources place in

reporters and jeopardizes the free flow of truthful information about government activities, in

stark defiance of the requirement that “ [ r] equests ...be treated with care to avoid

interference with newsgathering activities .... 50.10 ( ) 5 )(vii) .

Third, the News Media Guidelines place narrow limits on what information may properly besought from the press. Inparticular, the guidelines provide that requests for informationfrom the news media “ generally should be limited to the verification of publishedinformation and to such surrounding circumstances as relate to the accuracy of the publishedinformation . ” Id. 50.10( )( )( iv) . The guidelines also underscore that requests always“ should be narrowly drawn,” should avoid requiring production of a large volume ofmaterial, ” and should not be used to obtain peripheral, nonessential , or speculative ”

information . Id. (c)(4)(ii)(A) (viii) . Plainly, this Section 2703 (d) order for all noncontent records and other information relating to six New York Times e-mail addresses ,including “ [ i ]information about each electronic communication sent or received by theAccount( s) ” over the course of many months, goes well beyond these limits. See Order,

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Page 8

AttachmentA , at 2 ( emphasisadded) . The breadthofthe Section2703(d) order, which goes

wellbeyondpublishedinformationand strikes at the most sensitiveinformationin the

custodyofthe newsmedia — the identitiesof confidentialsources— makesa mockeryofthe

guidelines.

Fourth, the News Media Guidelines make clear that using law enforcement tools, includingSection 2703 d) orders, to seek records from the news media should be considered an

extraordinary measure [ ], not [ a] standard investigatory practice[ ] ” id 50.10 a ) (3)reserved only for when the information sought is “ essential ” to the investigation and the

Government has “made all reasonable attempts to obtain the information from alternative,

non-media sources, 50.10( )(4) ii)(A ), (iii) . Here, however, there are plentifulalternative sources. As discussed inour March 16, 2021 letter, the investigation plainly

relates to an article about how former FBI director James Comey handled investigations

related to the presidential candidates in the 2016 election; Comey himself thereforerepresents at least one “ alternative, non-media source ” of information about who knew aboutthe investigations and may have spoken to reporters. Moreover, all of the individuals Comey

interacted with in the relevant time period, who are likely well known to the Government

given Comey’s prominent role and security requirements , are additional alternative sources .

And further alternative sources are all of the electronic communication repositories of

Comey and the non media individuals he communicated with. A Section 2703( d) order for

multiple New York Times email accounts is therefore hardly “ essential” to this investigation.28 C.F.R. 50.10( )(4)(ii) (A ) .

In short, by seeking to gather journalists' information as a first resort, not a last resort; by

refusing to negotiate directly and openly with The New York Times over the scope of the

request ; and by jeopardizing the constitutionally protected flow of information from

confidential sources to reporters, the Section 2703 (d) application at issue shows disdain for

the News Media Guidelines . It also flies in the face of the Biden Administration’s paeans to

the importance of “ a free and independent press ” and commitment to “sharing accurate

information with the American people. 25

In fact, as noted, at his confirmationhearingjust weeks ago, Attorney General Garland

testified that he is “ deeply committed” to the News Media Guidelines and “ would expect to

25 Annie Karni, Jen Psaki'sDebut: No Attacks, No Lectures, No Crowd Size Fixation, N.Y. Times ( Jan. 20,

2021) , https://www.nytimes.com/2021/01/20/us/politics/jen-psaki-press-secretary.html; see also, e.g.,

Kamala Harris ( @KamalaHarris , Twitter ( Jul. 2 , 2017) ,

https://twitter.com/kamalaharris/status/881622505840103424?lang=en ( “ The First Amendment & freedom

of the press are critical to our democracy. ” ).

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re- up them.26 The Department should make good on that commitment by withdrawing itsapplication for the Section 2703 d) order .

TheSection 2703 ( d ) Application Contravenes the Enterprise Data Guidelines

In addition to the multiple violations of the News Media Guidelines , seeking the order alsoviolated separate DOJ guidelines on seeking enterprise data ( the Enterprise Data Guidelines )

that similarly prohibit the Department from engaging in an end -run around The New York

Times.27 The failure to abide by the Enterprise Data Guidelines yet again illustrates why the

2703 (d) application is improper and must be withdrawn .

DOJ's guidelines for requesting enterprise customer data held by cloud service providersdirect that law enforcement should seek data directly from the enterprise” this case, the

news media — whose records are being sought, rather than surreptitiously attempting to dodge

the First and Fourth Amendment issues, as it did here.29 Notably the Enterprise Data

Guidelines expressly advise prosecutors to go directly to the enterprise rather than to the

cloud-storage provider when seeking information from the email accounts for a group ofemployees precisely what the Section 2703 (d) application seeks.30 The Enterprise Data

Guidelines also recommend going directly to the enterprise's general counsel in such a

circumstance. Only ifprosecutors have “ no choice but to seek disclosure directly from the

provider ” —such as when the “enterprise is essentially devoted to criminal activity” or wherethere are practical obstacles such as when “ the enterprise's is not capable of isolatingand disclosing the necessary information ” or when law enforcement is “ unable to find a

trustworthy point of contact the enterprise ” —should they bypass the enterprise.31

None ofthose exceptions applies, and prosecutors hadplenty of other choices here. They

could have gone directly to The Times's general counsel (whose contact information is

26AttorneyGeneralConfirmationHearing, Day 1 , C - SPAN, at 1:35:35to 1:36:20(Feb.22, 2021) ,

https://www.c-span.org/video/?508877-1/attorney-general-confirmation-hearing-day-1.

27

SeekingEnterprise CustomerData Heldby CloudService Providers, U.S. Dep’t of Justice Dec. 2017 ,https://www.justice.gov/criminal-ccips/file/1017511/download.

28 Like the NewsMediaGuidelines, the EnterpriseDataGuidelinesdo not createa cause ofaction. But thevery fact that the Department failed to abide by both sets ofguidelines is revelatory of the Department'sreluctance to openly and directly seek records belonging to the news media— an act that, as it is well aware,

raises grave FirstAmendment concerns.

29

Enterprise Data Guidelines, at 1 .

30 Id at 2 .

31 Id at 2–3.

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readily available ) rather than waiting for Google to force them to do so . And none of the

circumstances that the Enterprise Data Guidelines suggest might warrant bypassing the

enterprise are present here. The Times is not, for example, “ an enterprise ...essentially

devoted to criminal activity target of the investigation.32 did prosecutors haveany concern that The Times would destroy evidence , as demonstrated by the fact that they

have not sent a formal 2703( f) preservation request to The Times or, as we understand , to

Google . All e-mail records at issue have been preserved, which, again, the Government

would have learned, had it notified and negotiated directly with The Times . There also was

not a risk of jeopardizing the investigation because, as explained inour March 16, 2021letter, this investigation was already public and anyone who might be a target of theinvestigation has no access to the data sought. 34

The First Amendment Prohibits Compelled Disclosure of The Times's Records

The Department's failure to seek records directly from The New York Times , as required

under the News Media Guidelines and Enterprise Data Guidelines , is telling. Evidently , the

Department knows that turning reporters into pawns in a leak investigation violates the FirstAmendment the attempt to cut out The New York Times and to shroud the operation

in secrecy when seeking the order . But the Department cannot simply avoid reckoning with

the First Amendment problems associated with compelled disclosure of news media records

implicating confidential sources .

Then-Judge Garland's statements on the importance of the reporter's privilege are

instructive. Dissenting from the denial of rehearing en banc in Lee v . Department of Justice ,Judge Garland recognized that issuing subpoenas to reporters to gather information in

connection with a leak investigation raised serious First Amendment concerns, and reminded

his colleagues to “ be mindful of the preferred position of the First Amendment and the

importance of a vigorous press. ” 428 F.3d 299, 303 (D.C. Cir. 2004) (Garland , J. , dissenting

from the denial of rehearing en banc) (quoting Zerilli v . Smith, 656 F.2d 705 , 712 (D.C. Cir.1981)) . He wrote :

“ [ ] the [ reporter's privilege does not prevail in all but the most exceptional cases ,

its value will be substantially diminished . Unless potential sources are confident thatcompelled disclosure is unlikely , they will be reluctant to disclose any confidential

information to reporters .” [ Zerilli, 656 F.2d at 712. And if our case law has that

consequence , it will undermine the Founders intention to protect the press “ that it

32 Id at 2

33See id at 2

34 See id at 3

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couldbare the secretsof governmentandinformthe people.” New York Times Co. v.UnitedStates, 403 U.S. 713, 717 (Black, J., concurring) .

Lee, 428 F.3d at 303.

Judge Garland's caution applies with full force here . Compelling disclosure of records fromreporters Matt Apuzzo, Adam Goldman, Eric Lichtblau, and Michael Schmidt in the service

of this particular investigation chills other confidential sources from speaking to reporters

and undermines the constitutionally protected freedom of the press. Cf. United States v .

Ahn , 231 F.3d 26, 37 (D.C. Cir. 2000) (recognizing a qualified First Amendment privilege in

criminal proceedings and affirming the district court’s grant of the reporter's motion to

quash )

Indeed, the Government's 2703 d) application is precisely the kind of circumstance that

Justice Powell, inBranzburg v. Hayes, suggested would justify the grant of a motion to

quash on the basis of the reporter's privilege. See Branzburg v. Hayes, 408 U.S. 665 , 709–10

( 1972) (Powell , J., concurring ). Justice Powell noted that “ no harassment ofnewsmen willbe tolerated ” and “ ifthe newsman ... has ... reason to believe that his testimony implicatesconfidential source relationships without a legitimate need of law enforcement, he will have

access to the court on a motion to quash .” Id. Unlike inBranzburg or in In re Miller, which

both involved grand jury subpoenas , here there is no “ legitimate need of law enforcement.

Id see In re Miller, 397 F.3d 964 (D.C. Cir. 2005 ) , superseded by 438 F.3d 1141 (D.C. Cir.2006) . Whereas, ina typical leak investigation, the Government is searching for any clue as

to who may have leaked the information , the Government in this case has known for years

where to begin looking: Insofar as its investigation is into the source or sources for the April

2017 article discussing how Comey handled investigations related to the presidential

candidates in the 2016 election, the Government could seek records from Comey himself

regarding the investigations and with whom he shared information . Moreover, theyears-long delay between the article's publication and the Government's attempt to seek the

information undermines any argument that the Government need [ s ] ” the information .

Particularly in lightof theTrump Administration's history ofantagonism toward the press , it

is difficult to see this Section 2703 d) order as anything more than “harassment of newsmen ”

and an attempt to “ annex news media as an investigative arm of the government.Branzburg, 408 U.S. at 709 .

35 Wenotethatthe individualreporterswhoserecordsare at issuemayhaveotherobjectionsto disclosure.

Since they have not been permitted to know about the Section 2703 d) order , nothing in this letter should

be construed as a waiver of any of their rights .

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TheCommon-Law Reporter'sPrivilegeAlso ProhibitsCompelledDisclosureof TheTimes'sRecords

The common- law reporter'sprivilegesimilarlyprotectsagainst the compelleddisclosureof

confidentialsources.

Although the D.C. Circuit not squarely addressed the issue, a reporter's privilege exists

under the common law , see Jaffee v . Redmond, 518 U.S. 1 8 ( 1996) (“ [ ]he common law is

not immutable but flexible , and by its own principles adapts itself to varying conditions.

( quoting Funk v . United States, 290 U.S. 371, 383 ( 1933)) , and shields against compelled

disclosure of records by members of the news media. See In re Miller, 397 964 (D.C.

Cir. 2005) ( Tatel, J., concurring in thejudgment) ( advocating for a common law privilege);In re Miller, 405 F.3d 17 (D.C. Cir. 2005 ) ( Tatel, J. concurring in the denial of rehearing enbanc) ( same)

In determining whether to recognize an evidentiary privilege , courts look to whether the

privilege serves important private and public interests ; whether those interests outweigh thebenefits of compelling disclosure ; and whether a consensus on recognizing the privilege

exists among the states . Jaffee, 518 U.S. at 10–13 .

First, a reporter's privilege unquestionably serves crucial public and private interests. ] he

press, shielded by the First Amendment has been a mighty catalyst in awakening public

interest in governmental affairs, exposing corruption among public officers and employees

and generally informing the citizenry ofpublic events and occurrences . In re Miller, 438

1141, 1163 (D.C. Cir. 2006) ( Tatel, J., concurring) (quoting Estes v. Texas, 381 U.S.532, 539 ( 1965)). Journalists thus serve “ as a powerful antidote to any abuses of power bygovernmental officials, and as a constitutionally chosen means for keeping officials elected

by the people responsible to all the people whom they were elected to serve .” Mills v.Alabama, 384 U.S. 214, 219 ( 1966) In order to fulfill this vital function , journalists must be

able to rely on and protect confidential sources : “ A journalist's inability to protect the

confidentiality of sources s/ he must use will jeopardize the journalist's ability to obtain

information on a confidential basis . This in turn will seriously erode the essential role played

by the press in the dissemination of information and matters of interest and concern to thepublic. ” Riley v. Chester , 612 F.2d 708 , 714 (3d Cir. 1979). Absent a privilege, allowing

government officials to compel the disclosure of confidential sources can no doubt

constitute a significant intrusion into and, certainly , a chilling effect upon the newsgathering

and editorial processes . ” Maughan v .NL Indus., 524 F. Supp. 93 , 95 (D.D.C. 1981). The

reporter's privilege is thus essential to preserving both a press that is free to investigate andreport and a public that is well- informed on important issues .

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Second , these important interests favoring a reporter's privilege outweigh any alleged

evidentiary benefits from compelling reporters to disclose confidential sources . “Compelling

a reporter to disclose the identity of a source may significantly interfere with reporter's

news gathering ability ” because, “ [ u ]nless potential sources are confident that compelleddisclosure is unlikely, they will be reluctant to any confidential information to

reporters.” Zerilli, 656 F.2d at 711–12 . As a result “much of the desirable evidence to

which the government] seek[ s ] access unlikely to come into being. ” In re Miller, 438F.3d at 1168 (Tatel, J. , concurring) ( quoting Jaffee, 518 U.S. at 12). In addition, the

Government does not need to rely on journalists to conduct its investigatory business : In

most cases, it “ can learn what reporters know by replicating their investigative efforts, e.g.,

speaking to the same witnesses and examining the same documents ,” at 1174, and a

journalist's disclosure “ is therefore very rarely essential a government inquiry, N.Y.

Times Co. v. Gonzales, 459 F.3d 160, 183 (2d Cir. 2006) (Sack, J. , dissenting) .

Third, the vast majority of states and the District of Columbia recognize a reporter's

privilege, demonstrating a “ consensus among the States ” that “ indicates that reason and

experience support recognition of the privilege. ” Jaffee, 518 U.S. at 13. Judge Tatel in Inre Miller found undisputed evidence ” that forty -nine states plus the District of Columbia

offer at least qualified protection to reporters sources . 438 F.3d at 1170. In thirty -one states

and the District ofColumbia, state legislatures have passed “ shield laws” granting theseprotections. N.Y. Times Co., 459 F.3d at 182 ( Sack, J. , dissenting). D.C.'s law , for instance,

prohibits any court from “ compel ling any person who is or has been employed by the news

media in a news gathering or news disseminating capacity to disclose . . . [ he source ofany

news or information procured by the person . D.C. Code Ann. The widespread

nature of reporters' privileges at the state level indicates that such protection “ has not

interfered with effective law enforcement.” N.Y. Times Co., 459 at 182 (Sack, J. ,dissenting)

Applying a common law reporter's privilege to the facts at hand protects The New York

Times against the unnecessary compelled disclosure of the information that the

Government's 2703 (d) application seeks . “When a privilege is grounded in constitutionalpolicy, a demonstrated , specific need for evidence must be shown before it can be

overcome.” Riley, 612 F.2d at 716 ( quoting United States v. Nixon, 418 U.S. 683, 713( 1974)) . In a case involving leaks of confidential government information such as this one,

the application of the privilege depends on the government's need for the information and

exhaustion ofalternative sources ,” the public interest in compelling disclosure , measured by

the harm the leak caused ” and “ the public interest in newsgathering, measured by the leaked

information's value.” In re Miller, 438 F.3d at 1175 ( Tatel, J. , concurring). This approach" prevent s] discovery when no public interest supports it and only allows law enforcement

to override the privilege “ when the leaked information does more harm than good. ” Id. This

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fact- specific balancingis particularlyimportantin leakcases such as this one: “ [ ] f leaks

revealmistakesthathigh-levelofficialswouldhave preferredto keep secret, the

administrationmaypursuethe sourcewithexcessivezeal, regardlessofthe leaked

information’spublicvalue. ” Id. at 1176.

Under the particular circumstances of this case , the Government has no need to pursueinformation from The New York Times's journalists . “ All courts which have considered this

issue have agreed that the federal common law privilege of news writers shall not be

breached without a strong showing by those seeking to elicit the information that there is no

other source for the information requested .” Riley, 612 F.2d at 716. Again, unlike thetypical leak of confidential government information, which may be “ extremely difficult to

prove without the reporter's , ” In re Miller, 438 F.3d at 1166 ( Tatel, J. , concurring ), the

Government has alternative means of gleaning information about the Comey-related leaks.

James Comey testified to the Senate on live television that he directed his friend DanielRichman to leak his memos to the press.36 The Governmenthas two ample avenues throughwhichit canpursuethe evidence itmayneed — and, in fact, it has already investigatedDirectorComey in conjunctionwith the leaks.37 As a result, any informationtheGovernmentmayneedcan readilybeobtained through other sources, without breachingtheconfidentialityofreporter-source relationships.

Inaddition, the public interest here strongly favors protecting the newsgathering activities of

The New York Times. The information leaked in this case does not implicate highly

36 Open Hearing with Former FBI Director James Comey Before S. Comm . On Intelligence, S. Hrg. 115–99(June 8, 2017 ) , at 27 , https://www.govinfo.gov/content/pkg/CHRG-115shrg25890/pdf/CHRG115shrg25890.pdf ; see also Erik Ortiz & Dafna Linzer , Who Is Daniel Richman , the Columbia ProfessorWho Leaked Comey's Trump Memo ?, NBC News (June 8 , 2017 , 12:21 PM),https://www.nbcnews.com/politics/politics-news/who-daniel-richman-columbia-professor-who-leakedcomey - s -private -n769846 ; Ken Dilanian at al., Comey Wrote Memo Saying Trump Urged Him to DropFlynn Investigation : Sources, NBC News May 17, 2017 , 3:58 AM) https://www.nbcnews.com/news/usnews / comey -wrote -memo - saying -trump -urged - him -drop -flynn -investigation -n760471; Michael S.Schmidt , In a Private Dinner, Trump Demanded Loyalty. Comey Demurred , N.Y. Times (May 11, 2017 ),https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html .

37 Adam Goldman & KatieBenner, Justice Dept.Declinedto ProsecuteComey Over MemosAbout Trump,N.Y. Times ( Aug. 1, 2019) , https://www.nytimes.com/2019/08/01/us/politics/comey-mueller.html; see also

Off. of the InspectorGen., Dep’tofJustice, 18-04, A ReviewofVarious Actions by the Federal

Bureauof Investigationand Department of Justicein Advance of the 2016 Election( 2018),https://www.justice.gov/file/1071991/download; Off ofThe InspectorGen., U.S. Dep’tofJustice, 19-02,Reportof InvestigationofFormerFederal Bureauof InvestigationDirectorJames Comey’sDisclosureof

Sensitive InvestigativeInformationand HandlingofCertainMemoranda (2019),https://www.oversight.gov/sites/default/files/oig-reports/01902.pdf.

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sensitive matters of national security, like military strategies or the identities ofundercover

operatives. See In re Miller, 438 F.3d at 1173 ( Tatel, J., concurring ). The Department of

Justice's Office of Inspector General, while concluding that Director Comey violated

department and FBI policies through his leaks, did not identify any concrete harms that hisdisclosure caused to any government interests or ongoing investigations .38 And the lack of

urgency associated with this investigation — which seemingly began years after the article

was first published — belies the notion that the leak caused any real harm . The public interest

indisclosure of the reporters now is thus quite limited. On the other hand, The New

York Times's coverage of the leaked memos provided significant public value on topics of

paramount importance: the conduct of the President of the United States and investigations

into the two candidates in the 2016 presidential election.39 Stories like these, which shedlight on the operation ofgovernment and the political process , serve weighty public interests,

as there is “ practically universal agreement that a major purpose of [the First] Amendment

[is] to protect the free discussion ofgovernmental affairs.” Brown v. Hartlage, 456 U.S. 45,52 ( 1982) .

The Government's Section 2703 (d) request an attempt to compel identification of

reporters confidential sources — would chill the press's vital newsgathering role while

providing limited public value in light of the availability of alternative channels of evidence .

There is simply no basis to conclude that the records sought are indispensable to theinvestigation and could not be obtained elsewhere. Nor is there any public interest in

disclosure sufficient to override the press’s interests in protecting information about its

sources from government intrusion . Accordingly , the invasive and damaging order must

give way to the reporter's privilege under both the First Amendment and the common law.

Conclusion

For all of these reasons , we respectfully request that the Government withdraw its Section

2703( d ) application, in addition to its non- disclosure request , as detailed inour March 16,2021 letter.

38 See Off of The Inspector Gen., U.S. Dep’t of Justice, 19-02, Report of Investigation of Former FederalBureau of Investigation Director James Comey’s Disclosure of Investigative Information andHandling of Certain Memoranda (2019), at 60–61, https://www.oversight.gov/sites/default/files/oigreports /01902.pdf.

39

SeeMattApuzzoet al., Comey Triedto Shieldthe F.B.I.FromPolitics. Then HeShapedanElection, N.Y.

Times ( April22, 2017), https://www.nytimes.com/2017/04/22/us/politics/james-comey-election.html.

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We look forward to discussingboththis request and our prior request to lift the gagorder

withyou and your colleagues. Please informus of position on these issues by Friday,

April 2 as we intendto petition the Court for reliefshould we not reach an agreement.

Respectfullysubmitted,

Theodore J. BoutrousJr. AlexanderH. Southwell