{"id":374,"date":"2026-07-28T15:45:35","date_gmt":"2026-07-28T15:45:35","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=374"},"modified":"2026-07-28T15:45:35","modified_gmt":"2026-07-28T15:45:35","slug":"the-subpoena-detective-a-dispatch-from-the-times-hearing","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=374","title":{"rendered":"The Subpoena Detective: A Dispatch from the Times Hearing"},"content":{"rendered":"
\n

It\u2019s nearly 2:00 p.m. on July 23 in courtroom 23B at the Thurgood Marshall federal courthouse in New York\u2019s lower Manhattan, and the room is, by the standards of the last 24 hours, nearly empty. Yesterday, this same courtroom was packed with curious spectators, eager to catch a glimpse of a hearing in the criminal case against Nicol\u00e1s Maduro, the former leader of Venezuela. <\/p>\n

Read more The AI Sovereignty Paradox<\/a><\/p>\n

Today, the gallery holds a noticeably thinner crowd, and the benches appear to be almost exclusively filled with reporters. It\u2019s a fitting audience. We\u2019re here for a hearing about journalism, and the extent to which the government can lawfully interfere with it. Journalists, as it turns out, care about journalism. <\/p>\n

At issue is a spate of subpoenas the government issued for the testimony and phone records of several New York Times journalists.\u00a0 The subpoenas followed two Times articles\u2014published on July 8 and July 9, respectively\u2014reporting that President Trump had switched planes during an international trip earlier this month. Rather than depart Turkey on his newly retrofitted jet gifted by Qatar, Trump reportedly opted to fly on the old Air Force One jet. According to the Times’ reporting, the switch followed a recommendation from the Secret Service, which had concerns that the Qatari jet lacked some of the defensive countermeasures built into the previous aircraft. The president, who has previously praised the Qatari jet as the \u201cbest plane ever built,\u201d disputed the reporting, saying the switch was made so the Qatari jet could be shown off to the troops at U.S. military bases. <\/p>\n

Within days of the Times\u2019 stories running, federal agents showed up at several reporters\u2019 homes to serve subpoenas ordering them to testify before a grand jury. In a July 11 article published in the Times, a Justice Department spokesperson confirmed that they were issued as a part of an ongoing criminal investigation, claiming that \u201creporters are not the targets, those leaking classified information are.\u201d Days later, the Times learned that the government had served additional subpoenas on telecommunication companies, seeking phone records associated with the journalists\u2014including phone records of one journalist\u2019s mother and two journalists\u2019 spouses. <\/p>\n

The Times swiftly , arguing that they were issued in a bad faith effort to harass and intimidate the journalists. What\u2019s more, the newspaper contended that the government hadn’t come close to meeting the standard set out in New York Times v. Gonzales<\/em>, the Second Circuit precedent establishing that prosecutors seeking a reporter’s confidential sources must show, among other things, that the information can’t be obtained by other means. <\/p>\n

The Justice Department, , didn’t ask the court to deny the motion outright. Instead, it asked the court to hold the subpoenas in abeyance for two weeks while it pursued additional investigative steps\u2014steps that, the government suggested, might bear on the scope of the subpoenas and on whether the Gonzales<\/em> factors could ultimately be satisfied.<\/p>\n

Now, around 2:00 p.m., a court officer shouts \u201cAll rise!\u201d as Judge Arun Subramanian sweeps into the courtroom and seats himself behind the bench. <\/p>\n

The parties make their appearances. For the government, it\u2019s Sean Buckley, Chief Counsel to the U.S. Attorney for the Southern District of New York. For the New York Times, it\u2019s David O\u2019Neil of Debevoise & Plimpton. <\/p>\n

With introductions behind him, Judge Subramanian wastes no more time on pleasantries. He announces that he has a few questions for both sides before turning things over to argument. But it becomes clear almost immediately that \u201ca few questions\u201d is something of an understatement, while \u201cboth sides\u201d is a bit of an overstatement. The judge has a legal pad’s worth of questions for the government, and he intends to get an answer to every single one. <\/p>\n

Subramanian lobs his opening question at Buckley: Given that the government has asked to hold the subpoenas in abeyance while it pursues further investigative steps, is the government willing to just withdraw them? <\/p>\n

Buckley says the government believes the \u201cappropriate measure\u201d is to hold the subpoenas in abeyance while it takes unspecified additional investigative steps. In other words: the government wants to put enforcement of the subpoenas on pause rather than withdraw them entirely. <\/p>\n

\u201cStop you right there,\u201d Subramanian interjects. \u201cSo the answer to my question is no?\u201d<\/p>\n

Buckley repeats his view that abeyance is the \u201cappropriate measure\u201d at this time. <\/p>\n

\u00a0\u201cSo, again, that\u2019s a no, right?\u201d Subramanian retorts. <\/p>\n

\u201cCorrect,\u201d Buckley concedes.<\/p>\n

Having pinned down the government\u2019s position, Subramanian turns to the law. He notes, , that to overcome the qualified reporter\u2019s privilege recognized in Gonzales<\/em>, the government must show that the information it wants is not obtainable from other sources. You agree, right? he asks aloud. <\/p>\n

Buckley acknowledges that is one of the three factors set out by the appeals court in Gonzales<\/em>. <\/p>\n

To that end, Subramanian points out that the government\u2019s own brief admits there are \u201cparticular investigative steps\u201d it hasn\u2019t yet taken to obtain the information it seeks. So doesn\u2019t that mean, right now, today, the government fails the Gonzales<\/em> test? <\/p>\n

Buckley tries to explain that those steps weren\u2019t identified back when the subpoenas were issued, but have since come into focus as the investigation has unfolded. <\/p>\n

Subramanian, unmoved, restates the question more bluntly: So, at the present time<\/em>, he stresses, you would agree that the government cannot satisfy the Gonzales <\/em>test? <\/p>\n

Buckley doesn\u2019t have much choice but to concede this point. \u201cYes, with respect to that factor of the Gonzales<\/em> test, correct,\u201d he replies. <\/p>\n

It\u2019s the kind of admission that tends to end an argument before it starts, and Subramanian treats it that way. \u201cSeems like you’ve got two options,\u201d he says to Buckley. \u201cEither we can quash the subpoenas or you could withdraw the subpoenas.\u201d<\/p>\n

The judge adds that both options lead to the same place: The government could issue additional subpoenas down the road after it pursues further investigative steps. If it does, the Times could move to quash the subpoenas again, and the government could come back to court to challenge that motion. \u201cWhy isn\u2019t that the right outcome here?\u201d Subramanian asks. <\/p>\n

Buckley reaches for a reason, and his answer has something to do with preserving the government\u2019s argument on appeal. The government would like to \u201cpreserve the record\u201d with respect to the Gonzales <\/em>three-factor test, he explains, because there\u2019s a circuit split\u2014the Fourth Circuit\u2019s Sterling<\/em> decision goes the other way and rejects Gonzales<\/em>\u2019s framework entirely. Withdrawing now, he suggests, could be read as a concession that Gonzales<\/em> is the right test. <\/p>\n

Subramanian isn\u2019t persuaded, and he says as much at some length, walking Buckley through the reasons why withdrawing the subpoenas now would not prevent the government from someday asking the Supreme Court to resolve the circuit split. \u201cI\u2019m telling you right now,\u201d he says, \u201cthat I will not understand any withdrawal of your subpoena here to prejudice some argument that you would make in a subsequent application that the Gonzales<\/em> test, if you went all the way to the Supreme Court, would not apply.\u201d <\/p>\n

Having dispensed with the preservation argument, Subramanian says that he\u2019s simply trying to find a practical way to resolve the parties\u2019 concerns in this litigation. And from the court\u2019s perspective, he notes, holding the subpoenas in abeyance for two weeks wouldn\u2019t be particularly practical. The government\u2019s investigative steps might end up taking longer, requiring the court to extend the abeyance again and again. So rather than keep the proceeding open indefinitely, he says, there are really only two options: quash or withdraw. \u201cGiven everything that I’ve told you,\u201d he asks, \u201cwhat does the government want to do?\u201d<\/p>\n

Buckley says the government still maintains it should be held in abeyance, but that he understands the court’s rationale if it’s inclined to quash. It is not quite a white flag, but it’s close, which may be why Subramanian returns to the subject minutes later. <\/p>\n

For now, though, Subramanian pivots to another matter raised in the filings: whether the court should retain jurisdiction over the dispute if the government issues new subpoenas down the road. Buckley says he doesn’t object to that, as long as the court\u2019s jurisdiction is limited to matters concerning the reporters themselves\u2014not, he cautions, the entirety of the grand jury investigation. <\/p>\n

O’Neil, responding to this point on behalf of the Times, agrees that jurisdiction should be retained. However, he thinks the court should retain jurisdiction over the grand jury proceeding as a whole. Given the government\u2019s conduct in this case, he explains, we are concerned that its other investigative steps could impact our clients. <\/p>\n

Subramanian says he’ll let the parties brief the issue concerning the scope of jurisdiction. For now, everyone agrees: The court keeps jurisdiction over any new subpoenas concerning these reporters.<\/p>\n

Then Subramanian asks Buckley whether he’s in charge of the investigation. Buckley says yes. <\/p>\n

Having established that Buckley has personal knowledge of the investigation, Subramanian circles back to the timeline. He wants to understand what Buckley meant earlier when he said that additional investigative steps “had not been identified” when the subpoenas went out on July 10. <\/p>\n

Buckley, in response, cites the urgency of the national security concerns and the
\u201crapidity with which things were moving on July 10.\u201d Given all of that, he says, the subpoenas were appropriately issued pursuant to federal law and Justice Department regulations. He says he can\u2019t get into much more detail without \u201ccompromising\u201d the ongoing investigation or grand jury secrecy under Rule 6 of the Federal Rules of Criminal Procedure.\u00a0 <\/p>\n

“Let me stop you right there,” Subramanian says, for maybe the third time this hearing. You said you\u2019re overseeing this investigation, he notes. And you just indicated that, because of the need to get the subpoenas out, there were certain steps that weren\u2019t taken. But doesn\u2019t the entire structure of the law\u2014Gonzales<\/em> and the Justice Department’s own regulations\u2014require subpoenas to reporters to be the last<\/em> resort, not the first? And wouldn\u2019t you be aware of that? <\/p>\n

Yes, Buckley confirms. He was aware of the regulations as of July 10. <\/p>\n

Subramanian tries again: So why did subpoenas to reporters go out before anyone had identified what alternative investigative steps existed? To underscore his point, the judge quotes from a Justice Department regulation, which states that the government, when issuing a subpoena to a member of the news media, should first make \u201call reasonable attempts to obtain the information from alternative sources.\u201d It\u2019s not a matter of Rule 6 or classified information, Subramanian continues. It\u2019s a matter of basic compliance with the law. <\/p>\n

With respect to the regulations, Buckley claims that there is an exception to the regulation cited by the judge. That exception was triggered, he says, so we\u2019re not in violation. <\/p>\n

The judge is silent for several minutes while he locates the supposed exception cited by Buckley. The text, found in 28 C.F.R. \u00a7 50.10(c)(4)(iv), reads as follows: <\/p>\n

Read more Lawfare Daily: Investigating Atrocities in Post-Assad Syria<\/a><\/p>\n

In investigations of unauthorized disclosures of national defense information or of classified information, where the relevant Department or agency head certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified, and reaffirms the Department’s or agency’s continued support for the investigation and prosecution, the Attorney General may authorize the Department of Justice, in such investigations, to issue subpoenas to members of the news media. The Attorney General may also authorize the Department, in such investigations, to use subpoenas, 2703(d) orders, or 3123 orders to obtain communications records or business records of a member of the news media.<\/p><\/blockquote>\n

Subramanian, reading directly from this provision, asks Buckley to point him to any language in it that actually creates an exception to the “should have made all reasonable attempts” language two provisions up. Buckley offers that “should” is merely advisory language. If the Attorney General authorizes the issuance of these subpoenas, it\u2019s not a violation of the rules, he says. <\/p>\n

Subramanian asks again, more slowly, whether there is any actual textual basis in (iv) that would indicate it serves as an exception to the alternative-sources requirement. Buckley, audibly working through the question in real time, says he thinks it is \u201cclear on the face of the regulation.\u201d<\/p>\n

The judge, for his part, doesn\u2019t seem convinced. <\/p>\n

Then comes the moment the whole hearing has been quietly building toward. Subramanian asks about a filing the government submitted to a magistrate judge on July 14 in connection with a subpoena issued to a telecommunications company. The July 14 filing, submitted by Assistant United States Attorney Kevin Sullivan, sought something called a \u201cnon-disclosure order\u201d\u2014essentially, an order that would prohibit the telecommunications company from informing the journalist that his information had been subpoenaed. <\/p>\n

The magistrate granted the government\u2019s request and issued such an order on July 15. But the government had a problem. Sullivan\u2019s July 14 application for a non-disclosure order had affirmed under penalty of perjury that the investigation was \u201cnot public.\u201d In fact, it was<\/em> public. Days earlier, in a July 11 article published by the Times, a Justice Department spokesperson issued an on-the-record statement confirming the existence of the investigation. <\/p>\n

All of which left the government in an awkward spot, to put it mildly. Judges tend to take an unsympathetic view of government attorneys misrepresenting facts under oath\u2014particularly in a case where the government stands accused of acting in bad faith to begin with. <\/p>\n

Now, turning to this issue, Judge Subramanian asks Buckley if he personally reviewed Sullivan\u2019s July 14 application for a non-disclosure order. Buckley says he didn’t. <\/p>\n

“Is Mr. Sullivan here?” Subramanian asks.<\/p>\n

He is. He’s been sitting in the gallery this whole time, apparently under the impression that having his name on key filings in the case did not entitle him to a seat at counsel table.<\/p>\n

\u201cI mean, he’s on\u2014his name is on all the pleadings here,\u201d Subramanian says. \u201cSo why is he in the gallery? You can come up. We have extra chairs here.\u201d<\/p>\n

And so Sullivan, moving with the stiff posture of a student called to the principal\u2019s office, makes his way to the well of the courtroom. <\/p>\n

Subramanian doesn’t go easy on him. \u201cMr. Sullivan, when you affirmed in your July 14 application to a judge in this court, under penalty of perjury, that the investigation was not public, that was false, correct?\u201d<\/p>\n

Sullivan says the wording was “imprecise”\u2014the full scope<\/em> of the investigation wasn’t public, even though the Justice Department had, in fact, publicly confirmed the investigation’s existence on July 11. <\/p>\n

Subramanian then asks him to confirm what the application did not<\/em> say. It never told the reviewing judge what the investigation concerned, never mentioned that the records sought were associated with a journalist, never mentioned the Times, right? His point is that the magistrate judge had no way of connecting Sullivan\u2019s non-disclosure application to the investigation that was publicly reported and confirmed by the Justice Department on July 11.<\/p>\n

Sullivan concedes all of it, one admission at a time. <\/p>\n

Subramanian presses further: \u201cBut then you said in your affirmation, \u2018The attached subpoena relates to an ongoing criminal investigation that is neither public nor known to all the targets of the investigation.\u2019\u201d That was not correct, right? <\/p>\n

Sullivan acknowledges that this statement was \u201cnot correct.\u201d We should have been more precise, he says. The full scope of the investigation was not public.\u00a0 <\/p>\n

The judge then asks why the application didn\u2019t inform the magistrate judge that the government\u2019s request was related to an investigation involving journalists. <\/p>\n

\u201cJudge, it was an oversight on the government\u2019s part,\u201d Sullivan replies. He says the government concluded that it was an oversight after conducting additional legal research later in the week, ultimately determining that it was appropriate to notify the journalists\u2019 counsel about the phone records subpoenas. <\/p>\n

\u201cSo are you going to do this again?\u201d the judge queries. <\/p>\n

\u201cNo, your honor, absolutely not,\u201d Sullivan replies. <\/p>\n

Subramanian turns the questioning back to Buckley. If this were a civil case, he says, incorrect statements made under penalty of perjury to a federal judge would normally trigger an order to show cause why sanctions shouldn\u2019t be imposed. So can you help me understand why I shouldn\u2019t take further steps here? <\/p>\n

Buckley calls it an inadvertent error, promising that it won\u2019t happen again. <\/p>\n

Subramanian doesn\u2019t seem entirely satisfied by this response, but he has something else on his mind. He observes that the government didn\u2019t inform the Times\u2019 lawyers about the phone records subpoenas until July 17, with Sullivan\u2019s stated reason being that the government deemed disclosure appropriate after it identified \u201cadditional case law.\u201d What was the additional case law? he asks. <\/p>\n

\u201cIt was the case law that indicates that the account holders could have standing to challenge and move to quash the subpoena with respect to their accounts,\u201d Buckley replies. <\/p>\n

The judge is incredulous. That\u2019s the Gonzales<\/em> case, right? Were you unaware of Gonzales<\/em> prior to July 17? <\/p>\n

Buckley says the government was aware of Gonzales<\/em>. But it was unaware of that aspect of Gonzales<\/em>. This was an \u201cinadvertent error,\u201d he insists. \u201cNobody was looking to pull a fast one on the court.\u201d <\/p>\n

Subramanian, still incredulous, clarifies: So prior to July 17, you personally were not aware that, in the leading case on the reporter\u2019s privilege, the court had made very clear that the privilege extended to records of this very kind in the hands of third-party providers? <\/p>\n

Buckley replies: At that time I was not. <\/p>\n

Then Subramanian wants to know why this was ever a question of case law in the first place. He reads aloud from a Justice Department regulation, 28 C.F.R. \u00a7 50.10(e), which provides that members of the news media must be given \u201creasonable and timely notice\u201d when the Attorney General authorizes a subpoena for their phone or business records. <\/p>\n

Buckley again points to an exception contained in the regulation itself. This exception is more obvious than the one he cited earlier. It provides that disclosure of the subpoena need not be provided if the Attorney General determines that \u201csuch notice would pose a 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.”<\/p>\n

Subramanian stares at Buckley. You\u2019re saying that determination was made?<\/p>\n

Buckley pauses. \u201cYour Honor, I can\u2019t get into that,\u201d he says. <\/p>\n

Having grilled Buckley and Sullivan for nearly an hour now, Subramanian seems anxious to wrap things up. Noting that the government has conceded that it made multiple errors, oversights, and omissions during this very hearing, he asks why it is still unwilling to withdraw the subpoenas. <\/p>\n

Buckley, for his part, says he doesn’t understand the practical difference between the government withdrawing them and the court quashing them. Moments later, however, he asks for a chance to confer with his colleagues. Subramanian allows a five-minute recess. <\/p>\n

When court resumes, Buckley has a new position. \u201cUpon further consideration,\u201d he announces, \u201cthe government is prepared unilaterally to withdraw these subpoenas at this time.\u201d If new subpoenas are ever warranted down the line, he says, the government will come back to this court in the first instance.<\/p>\n

O’Neil, for the Times, has no objection. <\/p>\n

Subramanian extracts a few final commitments from Buckley: that he remains in charge of the investigation, that the office will follow its own regulations and Gonzales going forward, that nothing like this will happen again. <\/p>\n

\u201cWe\u2019re not going to have situations where, for instance, someone\u2019s watching \u2018Sheep Detectives\u2019 and FBI agents show up at their door, right?\u201d the judge asks. It\u2019s a reference to reports that one of the subpoenaed reporters, Julian Barnes, was watching \u201cThe Sheep Detectives,\u201d a film released this year, with his family when government agents showed up to serve him with a subpoena. Buckley promises that won\u2019t happen again. <\/p>\n

\u201cI can\u2019t think of anything more inconsistent with \u2018The Sheep Detectives\u2019 than having an FBI agent show up at your door,\u201d Subramanian quips in response. <\/p>\n

O’Neil, who hasn\u2019t had much to do throughout the hearing, is finally given his turn to address the court. He keeps it short. There are “critical First Amendment interests at stake,” he says, and it matters for the public record that the government is withdrawing unilaterally rather than being forced to. The record here, he continues, is \u201creplete with bad faith,\u201d and the government\u2019s conduct has already had a chilling effect on the reporters\u2019 work. Given all that, he expects that the government won’t try this again.<\/p>\n

Subramanian assures him the court will take all of the circumstances into account if the government issues additional subpoenas. <\/p>\n

Asked if he has anything to add, Buckley allows himself one small act of defiance: the government disputes any suggestion of bad faith, he says. He leaves it there.<\/p>\n

Subramanian turns to housekeeping matters. He orders the Times to submit a letter on the jurisdictional question by Monday and asks the parties to order a transcript of the day’s proceedings. <\/p>\n

Read more Lawfare Daily: The Trials of the Trump Administration, July 24<\/a><\/p>\n

And with that, court is adjourned.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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