A federal magistrate judge on Tuesday rescinded the Trump administration's ability to examine data seized from Washington Post reporter Hannah Natanson last month, saying he would "conduct an independent judicial review" of the materials obtained by the Justice Department through a search warrant.
U.S. Magistrate Judge William B. Porter wrote that it was the court's "genuine hope" that the search was conducted, as the Trump administration contended, "to gather evidence of a crime in a single case, not to collect information about confidential sources from a reporter who has published articles critical of the administration." Porter wrote that he "further hopes the record ultimately bears out the government’s representations."
The Washington Post has called the seizure of the materials last month "outrageous," saying the government's decision to grab the materials though a search warrant executed at Natanson's home "chills speech, cripples reporting, and inflicts irreparable harm every day the government keeps its hands on these materials."
On Tuesday, the paper responded to the ruling in a statement, "We applaud the court’s recognition of core First Amendment protections and its rejection of the government’s expansionist arguments for searching Hannah Natanson’s devices and work materials in their entirety and placing itself in charge of determining their relevance."
The Justice Department did not immediately respond to a request for comment.
Porter had approved the search warrant in connection with an investigation into Navy veteran Aurelio Perez-Lugones, who was charged last month with unlawful retention of national defense information.
In his ruling Tuesday, Porter expressed frustration that the government wasn’t forthcoming about the Privacy Protection Act of 1980, which is a federal law that prohibits the government from searching for or seizing any work product possessed by journalists.
Porter wrote that he was "unaware" of that law when he conducted a limited probable cause review, and he accepted responsibility for the "gap" in his analysis. But he said the government "failure" to raise the law "seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.”
Porter wrote that many government lawyers — including those "from the highest levels of the DOJ" — had the opportunity to flag the law as part of their argument.
“None of them did,” he wrote. “In its day-to-day workings, this Court affords government attorneys a presumption of regularity, including by assuming that federal prosecutors have satisfied their obligation to disclose controlling and relevant authority. The government’s conduct has disturbed that baseline posture of deference.”
At a hearing last week, Porter stated that approval for the search warrant went all the way up to Attorney General Pam Bondi and asked Justice Department attorneys about the failure to mention the law when they applied for the search warrant.
“Did you not know, or did you not tell me?” Porter asked.
Porter said he was "frustrated" by the government's "convenient" failure to mention the law. "I find it hard to believe this law did not apply,” he said.
The Freedom of the Press Foundation, which filed a complaint against Assistant U.S. Attorney Gordon Kromberg for omitting the Privacy Protection Act, said in a statement Tuesday that Porter was right to limit the government from examining the seized data.
"He is also right to reprimand prosecutor Gordon Kromberg and his team for failing to disclose the Privacy Protection Act of 1980 — a law that severely limits the kinds of raids that Natanson endured — in their search warrant application," Seth Stern, the chief of advocacy, at the foundation said. He said Porter should sanction prosecutors in the case and urged the Virginia State Bar to investigate a Freedom of the Press Foundation's ethics complaint against Kromberg.
The Virginia State Bar has said it would be up to the judge to decide whether the warrant application was misleading.
Still, Porter wrote Tuesday, he could not "simply order the government to return all devices" and allow the Post to unilaterally identify material responsive to the search warrant. He said an outside review was needed to identify and protect classified information before the devices were returned.
Porter wrote Tuesday that Natanson's work had been altered by the seizure of her device, and that the Justice Department's suggestion that Natanson "simply start from scratch fails to recognize the realities of modern journalism and the value of confidential source relationships cultivated over time."
Porter concluded that Natanson's rights had been "restrained" because the government "seized all of Ms. Natanson’s work product, documentary material, and devices, terminating her access to the confidential sources she developed and to all the tools she needs as a working journalist."
Porter concluded that in balancing "First Amendment rights and newsgathering rights against the government’s compelling interest in its prosecution," it was "reasonable for the government to retain only the limited information responsive to the search warrant — and nothing more."
A status conference is set for March 4.
