The Daily - Cracking Down on Leaks

Episode Date: June 18, 2018

For a year and a half, President Trump has threatened to crack down on leaks and leakers. The seizure of emails and phone records from a reporter at The New York Times tells a great deal about what that might look like. Guest: Matt Apuzzo, a reporter for The Times in Washington who had his records subpoenaed during the Obama administration. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, for a year and a half, President Trump has threatened to crack down on leaks and leakers. What the seizure of emails and phone records from a reporter at The Times tells us about what that will look like. It's Monday, June 18th.

So in May of 2013, I was working at the Associated Press in the Washington Bureau with my now colleague at the Times, Adam Goldman, and we sat across from each other, separated by this cubicle, and just spent all day, every day, just talking to each other through the cubicle. And, you know, we're sitting there, and Goldman says, hey, did you get this thing? And I said, I don't know what you're talking about. He goes, I'm forwarding this to you.

Is this spam? And it was a weird attachment, a PDF attachment. And I opened it up. And I was like, dude, this isn't spam. The government just subpoenaed our phone records. Wow. It was a very kind of like form lettery notification. You know, the law requires that we notify you.

This is that notification. If you have any questions, let us know. Kind regards, U.S. Attorney's Office, Washington, D.C. Matt Apuzzo has been revisiting this experience in the days since the records of our colleague, Allie Watkins, were seized by the federal government. Yeah, so then it comes on us to figure out, what did they have?

And what did they have? They had everything. I mean, they had my cell phone number, Adam's cell phone number, home phone numbers for some editors, the main line in and out of the AP Bureau on Capitol Hill. So all the interactions that reporters have with lawmakers. In the end, we figured out, while trying to look at us, they just sort of swept up records on maybe 100 journalists. And when you say that they had your number or they had Adam's number,

you mean that they have the records of every incoming and outgoing call or message associated with that number, right? Absolutely, for several months. Hmm. So what exactly is this all about? Why is the federal government seizing your phone records and Adam's phone records? How are they even able to get these? So in 2012, we have some breaking news. Now, the Associated Press reports the CIA foiled an al Qaeda plotQaeda plot to blow up an American airliner using an underwear bomb that was not detectable by traditional American airport metal detectors. According to

the AP, the plot was to coincide with the one-year anniversary of the killing of Osama bin Laden. And it was a time when American authorities were saying, at this time, we have no credible information that terrorist organizations, including al-Qaeda, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden's death. And they wanted to know who had told us about this information and how did it become public? So the government is looking for your source. Who alerted you to the existence of this underwear bomb? The argument is, whoever was telling us about this shouldn't have been telling us about this. This was classified material. And even though it's not illegal for us to write about it,

the people who are sharing the information with the reporters aren't allowed to disclose that information. If you were at the Justice Department or you're at the FBI and you want to know how did Adam and Matt get this information, the quickest way to do that would just be to get a subpoena and rifle through all of our stuff

until you figured out who gave it to us. That would be the most efficient way. It's also the most intrusive, constitutionally invasive thing you can do. The First Amendment of the Constitution has made the United States the symbol for press freedom around the world, but Reporters Without Borders just ranked the United States 49th in the world for press freedom. The group says the Obama administration's pursuit of journalists under the Espionage Act has put a chill on reporters who cover the U.S. government. So was this an unusually aggressive move by the government in subpoenaing the records

of reporters and editors? It was super aggressive. And I think there was a time when I would have said, yes, it was very unusual. But under the Obama administration, the government took a really aggressive posture in dealing with unflattering stories about national security. The Obama administration has dredged up this 1917 statute called the Espionage Act, which was enacted under Woodrow Wilson as a means to criminalize those who were against the US involvement in World War One. And it's an incredibly broad statute that allows the US government to punish virtually anybody who takes action or discloses information that the United States government doesn't want disclosed. This administration, the Obama administration, has used the Espionage Act more times to go after whistleblowers, individuals in the government who share potentially damaging information with reporters. They have used the Espionage Act to go after whistleblowers more than every other administration combined. So this is a very aggressive administration when it comes to squashing freedom of the press.

They put more people in jail for talking to reporters than all other administrations combined. Seizing our phone records was just one part of that. The Associated Press is not the only media outlet that's been targeted by the Obama administration. You know, they call the Fox News reporter a potential criminal co-conspirator. The Justice Department told a federal judge

that by James's talking and flattering a particular person on his vanity, a particular person in the State Department, James committed a crime. It was just a moment in time when the Justice Department appeared to just basically being at war with journalists and their sources. They are now perceived, I think, widely within the journalistic industry as the greatest enemy of press freedom that we have encountered as an industry in at least a generation. And why do you think that that was? Was this something about the era in which Obama was president,

post 9-11, after George W. Bush, or what? I think all presidents really want to control the message, and Obama was obsessive about controlling the message. They had the cover of saying, look, we're just trying to protect classified information, and certainly that has more currency in a post-9-11 world, but... Fox News alert now on an angry response from the White House after a bipartisan group of senators

starts suggesting that the White House is leaking classified secrets to the media for political purposes. They never really seem to care about protecting classified information when it makes the government look really good. You know, we know everything about the bin Laden raid. God, the CIA let movie producers come

in and start interviewing all these covert officers to help them make their movie more realistic. And that information was classified as well. Yeah. And they would hold briefings and, you know, have 50 reporters on the phone to tell you what a great job they did. But boy, you report that Obama's got a secret kill list and how he goes about deciding which Americans to kill. And boy, everybody gets really worked up about that. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe or conduct foreign policy. And what you and Goldman were reporting was not information the government wanted out there. It was not flattering to Obama.

Right. At one point in the negotiations, you know, because we always go to the government and say this is what we have. And if they raise national security concerns, you know, we always take that to heart. And we held the story for several days because they said there were imminent national security concerns. for several days because they said there were imminent national security concerns. But we stopped holding the story when they argued, well, could you hold it so that the president can make the announcement that he thwarted this plot? What? No.

And so it just all had this feel to it. I was like, this isn't about protecting American secrets. This is about protecting people's images. And that's always been the hardest thing to swallow. So what happened as a result of this subpoena that you received when you were at the AP? It was paralyzing, just to be totally frank with you. I mean, I remember we would sit there and we'd look at the records and you'd see people in there who had nothing to do with anything. And you'd say, oh, my God, the government is going to think that guy was talking to me.

Should I call and tell him, hey, heads up, you're in the phone records? Will he never talk to me again? Will I just spook him? Or what if the government gets my phone records again in three months and they see that I called him? Like, am I obstructing something? Am I doing something wrong? Am I making him look like a source when he's not?

Or like, maybe if I don't call, people will be like, oh, that's interesting. He called him last month, but he didn't call him again this month. And so you're just like, oh, the best thing for me to do is just nothing. And you just sort of stare at your computer. You feel handcuffed. You feel paralyzed. And ultimately, that's exactly what they want you to feel. And what about the people on the other side of those phone logs? I can imagine that there would be people suddenly not wanting to talk to you, even if they're not necessarily in the phone logs, but they hear that your records have been subpoenaed. Yeah. I had people who said, hey, man, look, I didn't know anything about that story you wrote. And the government knows I didn't know anything about that story, but they're still investigating

me and I still have to get a lawyer and they're still threatening my security clearance and my livelihood. And it's clear they just want to send a message that we shouldn't be talking to you. So I'm not talking to you. These kind of investigations send a strong message. If you get on the other side of us, we're coming after you. And that's a very bad message for the White House, any White House to be sending against our free press. This was a total win from a operational standpoint for the government. What happened was the public opinion shifted. And frankly, I think a lot of it had to do with the fact that conservatives got behind the free press outrage. Lawmakers are also outraged.

House Speaker John Boehner releasing a terse statement saying this, quote, the First Amendment is first for a reason. If the Obama administration is going after reporters' phone records, they better have a damn good explanation. And so the pushback became so great that the administration actually said, all right, whoa, you know, maybe we went too far. We admit no wrongdoing, but we will reconsider our internal policies. And Eric Holder, who was the attorney general at the time,

he presided over revisiting and rewriting these guidelines to make it maybe institutionally more difficult to subpoena reporters. It's intriguing. So you had a Democratic president who is cracking down on the press and on leakers, and you had not just liberals, but also conservatives coming to the defense of the media,

which is kind of fascinating to think about now in this moment. Yeah, we've all been waiting to figure out how is a Republican president, this president, President Trump, who is at war with people in his own administration who talk to journalists and has declared reporters to be the enemy of the people. How is he going to deal with these issues?

They're very dishonest people. In fact, in covering my comments, the dishonest media did not explain that I called the fake news the enemy of the people, the fake news. And we always knew that eventually it was going to come to a crossroads where his administration was going to have to decide how to proceed. And now we know. Now, this case is about more than just leaks.

Consider how investigators built their case. They secretly seized years worth of phone and email records of a New York Times reporter. years worth of phone and email records of a New York Times reporter. The Times writes that this is the first known instance of the Justice Department going after a reporter's data under President Trump. We'll be right back. I want the attorney general to be much tougher on the leaks from intelligence agencies, which are leaking like rarely have they ever leaked before at a very important level. These are intelligence agencies. We cannot have that happen. We're going to find the leakers.

We're going to find the leakers. They're going to pay a big price for leaking. So Matt, what's the answer? How is President Trump going to deal with these leaks? Well, I think we have a pretty good sense that he's going to deal with them the same way President Obama dealt with them. Breaking overnight, word that the Justice Department has seized the emails and phone records of a New York Times reporter while investigating leaks of classified information. It's come out that the Justice Department secretly subpoenaed the phone records and email metadata of our colleague, Ali Watkinskins in a leak investigation involving a former Senate staffer. Watkins was notified about these intrusions into her records by the U.S. government

after the fact, making it impossible for her to challenge this questionable search and seizure in court before it happened. So Allie is a colleague here in the Washington Bureau. She covers federal law enforcement. But before she got to the Times, she worked for several news organizations covering national security issues. For at least some of that time, she was also dating a staff member on the Senate Intelligence Committee. And that staff member came under FBI investigation over whether or not he was providing reporters with classified information. This morning, a former Senate staffer who worked for the Senate committee investigating Russia's interference in the 2016 presidential election is expected to appear in court. He is being charged for allegedly lying to investigators on more than one occasion about his contacts with at least three reporters.

contacts with at least three reporters. Best we can tell, as part of that investigation, they started also looking at Allie Watkins to see if she was getting classified stuff from him, or basically, was he also a source? And is that pretty much on the same level of what the Obama administration did to you and to Adam Goldman when it was trying to get to the bottom of your reporting? Or is it something different? The bottom line, you set aside the relationship

for the moment here. The bottom line is from a press freedom standpoint, it's the same. And the same chilling effect that Adam and I felt is just going to be felt again. By Ali. By Ali and by anybody who worries they might be in those records. By Allie. By Allie and by anybody who worries they might be in those records. Well, can we set aside the relationship between Allie Watkins and this staffer on the Senate Intelligence Committee? Because that sounds like a potentially ethically complicated situation between a reporter and a source and kind of an unusual one. Yeah, I don't think we can set it aside as an institution.

And The Times is conducting a full investigation into that, even though it happened before she got here. But from a pure Justice Department policy and press freedom standpoint, the relationship is a side issue. Reaching into a reporter's private files or phone records should be the rarest, most exceptional thing that the federal government does.

Because of the constitutional protections of the First Amendment. Exactly right. And the government's own guidelines say that in all but the rarest situations, you don't do secret subpoenas. You give notice to the reporter or to the news organization.

And that way they can go to court and challenge it and an independent arbiter, a federal judge can say, yeah, look, I think this is probably reasonable or no, this is totally unreasonable. Somebody independent can hear an argument on the other side. But with a grand jury, there's only one side arguing. The argument is we need the information, we need the information, we need the information.

Mm-hmm. But isn't there a very good reason that it's illegal to leak classified information, that there's a national security that has to be accounted for, and that from the perspective of federal government, isn't it logical that they act really swiftly and with some level of secrecy to try to get to the bottom of something that has life and death consequences? bottom of something that has life and death consequences. Absolutely. However, I don't want people to hear this and say, oh, boo-hoo,

Matt Apuzzo and Adam Goldman couldn't get their calls returned to report on national security secrets. Big deal. Because it is a big deal. And here's why. Let's go back for a minute to the aftermath of 9-11. Bombshell reports from the British newspaper The Guardian that NSA is collecting all kinds of data on millions and millions of Americans. If you didn't have people willing to have those conversations with reporters, we wouldn't know about warrantless wiretapping or black sites. Disturbing details on CIA interrogation techniques at secret overseas prisons, so-called black sites. The torture included waterboarding used against terror suspects in the years after September 11th. Or torture or the abuses at the Abu Ghraib prison. The brutality is shocking. The report reveals at least five detainees were subjected to what it calls rectal feeding, interrogation procedures that went on for months.

The abuses at Guantanamo Bay. Stripped naked, diapered, physically struck and put in various painful stress positions for long periods of time. They were deprived of sleep for days. The use of drones to kill people anywhere in the world. Human rights groups say they are killing more civilians than the Obama administration admits, and that could be causing us even more trouble abroad. The use of drones to kill an American citizen, extraordinary rendition. I mean, the list goes on. And if you didn't know those things, we wouldn't have any idea what our government was doing. I mean, imagine taking all of those things out of the public mind. And then we go out on election day and we think we're making an informed vote. You have no idea what's happening if reporters can't have those conversations. Then the only thing you know is what the White House says from the press briefing. Sarah, you've said repeatedly that we've addressed our feelings on that situation

in regards to the Stormy Daniels payment. But specifically, can I ask, do the president approve of the payment that was made in October of 2016 by his longtime lawyer and advisor, Michael Cohen. Look, the president has addressed these directly and made very well clear that none of these allegations are true. This case has already been won in arbitration and anything beyond that, I would refer you to the president's outside counsel. So tonight we're going to speak straight to the American people and cut right through the fake news media. Yeah, right through, right through, right through. For the first year of the administration,

my colleagues and I would watch the president say, fake news, and obviously that's annoying. But I guess I also kind of said, well, if I have to choose between the guy who says you're fake news and the guy who subpoenas your phone records and sends people to prison for talking to you, I guess I'll take the fake news guy. But it's more complicated than that, I think, because you see now the president is going after people, trying to put people in prison for talking to reporters.

He's also now subpoenaing journalists. And he has so gone after reporters with this drumbeat of like fake news and don't trust the media. And I mean truly dishonest people in the media and the fake media. They make up stories. They have no sources in many cases. The check that existed under Obama, this sort of bipartisan pushback has really been tamped down because who's going to stand up for a reporter, especially as a conservative, when the stated position of the president is, you're the enemy of the people? CNN sucks! CNN sucks! CNN sucks! CNN sucks! CNN sucks!

It's this really troublesome and really worrisome combination between keeping up the attacks on a free press that started under Obama, but with this added public relations twist that eliminates, you know, the check that ultimately maybe held things together. So the difference between going after leakers under Obama and going after leakers under Obama and going after leakers under Trump may be that President Trump has so effectively convinced half the country, maybe even more than half the country, that the media is the enemy. Yeah, I mean, he says it. He's not shy about that at all. Matt, thank you very much. I appreciate it.

Thanks, Michael. And I don't know, you know, this dishonest media, the world's most dishonest people. Terrible people. You can have 100% home run and they'll make it look bad. They're bad people. Here's what else you need to know today. The Trump administration says that between April and May, it had separated nearly 2,000 children from parents facing criminal prosecution for unlawfully crossing the border. The separations have drawn widespread criticism, including from Republicans, prompting President Trump to claim incorrectly that Democrats,

rather than his own administration, are responsible for the practice. On Sunday, Melania Trump echoed that claim, issuing a statement that lamented the separations, but called for both Republicans and Democrats to end the practice. Tomorrow on The Daily, Stephen Miller explains the administration's policy. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.