By David Vigilante
Updated: Wed, 09 Jun 2021 18:46:34 GMT
Editor's Note: David Vigilante is Executive Vice President and General Counsel for CNN.
Since July 17, 2020, I have been bound by a gag order or a sealing order that prohibited me from discussing, or even acknowledging, that the government was seeking to compel the disclosure of the professional email communications of CNN reporter Barbara Starr.
That day, through our parent company WarnerMedia, I received a secret order issued by a federal magistrate judge in the Eastern District of Virginia. That court, based on an ex parte submission approved by the William Barr-led Justice Department, had ruled that CNN must produce all of Ms. Starr's email headers from a two-month period in 2017.
We immediately retained outside counsel to challenge the order. I was informed that, other than conferring with counsel, the order prohibited me from acknowledging to anyone that it even existed unless I had express permission from the Department of Justice.
I was told in no uncertain terms (multiple times) that I was forbidden from communicating about any aspect of the order or these proceedings to the journalist whose interests I am duty-bound to protect, Barbara Starr. And I was further informed that if I violated the order, I was subject to charges of contempt and even criminal prosecution for obstruction of justice.
I was aware that such secret orders were used by DOJ on matters of national security. However, in the 20 years I have been at CNN, we have never been subject to one. That is likely because the law and existing DOJ regulations establish (at least on paper) a very high bar for such an order to be issued directly against a media organization. Advance notice is typically required. The government is required to show "negotiations with the affected member of the news media [and] appropriate notice to the affected member of the news media, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm," according to Justice Department regulations.
Even then, the scope of any such request is limited to information that is "essential to a successful investigation" and "should not be used to obtain peripheral, nonessential, or speculative information."
In this case, the only reason I got notice at all was because the Justice Department had to serve the secret order on CNN's parent company, as Ms. Starr's work email resided on its servers.
Attempts to negotiate with the DOJ went nowhere. Its lawyers showed no interest in exploring good faith ways to narrow the order. Instead, we were met with a refusal to concede on any aspect of its wide scope, even after we confirmed there were over 30,000 responsive messages, 26,000 of which were wholly internal to the company and clearly irrelevant to the government's investigation.
Indeed, every effort to better understand the situation was refused:
• We were forbidden from knowing what their investigation was about.
• We were forbidden from knowing who the subject(s) of the investigation were so we could narrow our production (we even proposed that they include additional "dummy" names to protect the actual identity of the target or targets).
• We were forbidden from knowing the subject matter of the reporting that was at issue.
• We were forbidden from knowing when the investigation was opened.
• We were forbidden from conferring with the reporter, even after we secured the evidence, in order to understand how to narrow this invasion into our reporting.
In short, all the tools lawyers use every day to navigate these situations were refused to us.
After weeks of trying to find any good faith basis to reach a solution, we sought intervention through the court. On September 11, 2020, we filed a motion requesting that the court quash, or at least narrow, the July order. After a hearing under seal, on October 7, 2020, the court granted our motion and ordered the government to submit a proposal to narrow its search of records related to the relevant account -- essentially ordering the government to confer with us in good faith.
We assumed at this point we could reach an easily negotiated resolution. But the government's lawyers had other ideas.
Two days later, on October 9, 2020, the government filed a motion for reconsideration of the court's order. In support, it offered new, secret evidence in the form of an affidavit containing classified information. Again, this was done ex parte, and to this day we have no idea what was in that document, nor did we ever have the opportunity to challenge its content. Two weeks later, the court reversed itself and ordered CNN to comply with the original July ruling.
In November, we were granted a stay of enforcement of the order so we could appeal.
On December 16, 2020, our appeal was heard by the district court. The court was skeptical of the claims made by the government, including in the new secret affidavit. What the judge said about the evidence submitted by the government was telling:
"[T]he court has reviewed the government's explanation for why [internal email headers are relevant and concluded the theory of relevancy is based on] speculative predictions, assumptions, and scenarios unanchored in any facts. ... the requested information by its nature is too attenuated and not sufficiently connected to any evidence relevant, material, or useful to the governments ascribed investigation, particularly when considered in light of the First Amendment activities that it relates to."
Since we were never privy to any of the secret submissions made by the government, this was the first characterization of the evidence we had seen, and it was stunning: After months of secret proceedings and heavy-handed enforcement tactics, a neutral judge said that, in large part, the emperor had no clothes.
The district court significantly narrowed the order again. Finally, we thought we were close to a reasonable conclusion. We pressed for a final resolution that precluded any additional secret orders for Ms. Starr's work materials without first notifying us, and if the DOJ did seek such an order, that required notice of our significant litigation history, including the district court's findings, to the incoming DOJ leadership team.
The Justice Department took one last step, filing a motion for reconsideration on January 15, 2021.
It was not until January 26, 2021, when we were able to agree on notice to us and to the DOJ's new leadership under the Biden administration that we were we able to reach a resolution and conclude these proceedings. Our internal communications were protected and the production was significantly narrowed. We were also in a position where Barbara Starr had the crucial right to be involved in any follow up proceedings.
This conclusion triggered the clock that led ultimately to the required notice to Barbara on May 13, 2021. That day was the first day I was legally allowed to talk to her and at least acknowledge that such an order existed.
There was never an indication that Starr violated any laws.
It was also the first time I learned, by virtue of the notice letter, that the government had also been sweeping other electronic accounts where Barbara communicated about work-related matters. CNN was afforded no opportunity to protect any communications that were maintained by these third-party hosts. And other than knowing none of the other accounts were held by our parent company, AT&T, we have no way of knowing how these responses were handled.
This article is the first time in almost a year that I have been able to publicly address what happened to CNN without fear of prosecution. While we are gladdened by recent commitments from both the President and the Office of the Attorney General, these commitments must be made permanent and binding on future officeholders to have any meaning.
History teaches us that secret tribunals are ripe for abuse by even well-intentioned officials. Given recent revelations about other Barr DOJ abuses, it is fair to question whether the very high standard for requesting these secret orders was ever satisfied. Indeed, it seems impossible that what a district court judge described as "scenarios unanchored in any facts" could ever survive the scrutiny of an objective DOJ official.
We are hopeful that our meeting next week with the attorney general, along with my colleagues for The New York Times and The Washington Post, will result in processes that can prevent a repeat of this scenario for future news organizations and reporters.