The New York Times asked a federal court Wednesday to quash subpoenas served on three of its journalists in connection with a Justice Department investigation into the disclosure of information about security concerns involving a new presidential aircraft.

The motion was filed under seal in the U.S. District Court for the Southern District of New York, where the reporters had been directed to appear before a federal grand jury. The Times is also seeking permission to make its filing public, while protecting any information that remains subject to grand-jury secrecy.

FBI agents delivered subpoenas Friday to the homes of Times journalists Julian E. Barnes, Eric Lipton and Eric Schmitt, according to the newspaper. The government also attempted to serve reporters Tyler Pager and Adam Goldman, but those subpoenas were not completed.

The subpoenas seek testimony and information that could identify confidential sources used in the newspaper’s coverage of security issues involving a Boeing 747 provided by Qatar for presidential use. The aircraft, valued at roughly $400 million before extensive modifications, is being converted for use as Air Force One.

The Times reported that President Donald Trump traveled aboard an older presidential aircraft after security concerns were raised about the newer plane’s readiness and defensive capabilities. The government subsequently opened an investigation into whether officials improperly disclosed classified or otherwise protected information connected to the reporting.

The Justice Department has said its investigation is focused on identifying government employees responsible for unauthorized disclosures, rather than prosecuting the journalists who received and published the information. The subpoenas nevertheless seek evidence from the reporters that could reveal the identities of their sources.

In its motion, the Times argued that the subpoenas were issued in bad faith and violated the constitutional rights of the newspaper and its journalists. David McCraw, the Times’ senior vice president and deputy general counsel, said the demands were intended to punish the newspaper for its reporting.

“These subpoenas are brought in bad faith to punish The Times for its coverage,” McCraw said in a statement. “They violate the constitutional rights of The Times and its journalists.”

The newspaper also argued that forcing its reporters to disclose confidential sources would interfere with newsgathering and make government officials less willing to provide information to journalists. The Times said it would challenge the subpoenas and defend its reporters’ ability to protect confidential sources.

The subpoenas were delivered two days after the Times published reporting about Trump’s use of an older Air Force One aircraft during a return trip from Turkey. The report said the decision was connected to security concerns involving the aircraft being prepared for presidential service.

The legal dispute comes after the Justice Department changed internal policies that had limited the circumstances under which prosecutors could seize journalists’ records or compel reporters to testify in leak investigations. Those restrictions had generally required prosecutors to pursue other investigative methods before seeking evidence directly from members of the news media.

Federal law does not provide journalists with an absolute privilege allowing them to refuse testimony in every grand-jury investigation. Courts have previously required reporters to testify in certain criminal cases, particularly when prosecutors demonstrate that the information is relevant and cannot reasonably be obtained elsewhere.

The Times is expected to argue that the subpoenas are overly broad, that they intrude on First Amendment protections and that prosecutors have not shown they exhausted alternative ways to identify the officials under investigation. The government can seek evidence through agency records, communications data, access logs and interviews with officials who handled the information.

Because the newspaper’s motion remains sealed, the complete legal arguments and the precise testimony sought from each journalist have not been made public. The Times’ request to unseal the filing could provide additional details if approved by the court.

The Justice Department had not filed a public response to the motion as of Wednesday evening. No hearing date had been announced.

The judge handling the matter may enforce the subpoenas, narrow their scope or quash them. Any proceedings involving grand-jury information or classified material could be conducted partly or entirely under seal.

The case now places a federal court between the Justice Department’s investigation into a possible national-security leak and a newspaper seeking to protect the identities of the government sources behind its reporting.

JBizNews Desk | New York

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