NPR’s Michel Martin asks First Amendment lawyer Theodore Boutrous about the FBI executing a search warrant at the home of a Washington Post reporter.
MICHEL MARTIN, HOST:
Theodore Boutrous is with us now to talk more about this. He is an attorney who has represented many news organizations and matters involving the First Amendment. And I do want to note that his clients include NPR in its case challenging the Trump administration’s executive order defunding NPR and PBS. Mr. Boutrous, thanks so much for joining us once again.
THEODORE BOUTROUS: Thank you for having me.
MARTIN: How unusual is this?
BOUTROUS: This is extraordinarily unusual – very few examples of search warrants being executed on reporters, let alone at their homes, under these circumstances. So it’s a dramatic escalation of the Trump administration’s war on the press.
MARTIN: Other administrations have subpoenaed journalists. I think people who follow these things will have remembered, you know, one or two cases like this. But how is this different, in your view?
BOUTROUS: This is different because they decided to use a search warrant. It takes it to a whole new level. With a search warrant, the government can come to your house and execute the search warrant and take all your – if you’re a reporter, your work product, your source information, your notes, sweep up your computers without the reporter having the ability to challenge that in the first place. With a subpoena, you get the subpoena, and then you can go to court before anything is produced. So it’s really a radical escalation of the government using its authority to intrude on journalism when they go with the search warrant route. That’s what’s so rare about this.
MARTIN: Do reporters have any special protections from searches by the government? I mean, I guess my question is – in your view, was any law or regulation broken in this search?
BOUTROUS: Yes. Based on what we’ve heard – we’re getting information from The Washington Post and from other sources – the law seems to have been broken here. There are several protections specific to reporters. The First Amendment imposes special protections on top of the Fourth Amendment. The Supreme Court, in a case called Zurcher v. Stanford Daily back in 1978, said there’s not an absolute bar to search warrants executed on reporters. But they must be done with scrupulous exactitude, so a more rigorous standard. After that, in 1980, Congress passed the Privacy Protection Act to impose more protections, saying that unless the reporter is the target, the suspect of a crime, generally, there can’t be search warrants executed on reporters. And then the Justice Department has its own guidelines that seem not to have been followed here, so I think this is a real problem. It’s extraordinary. It’s very, very troubling.
MARTIN: The Washington Post says the Justice Department informed them that the reporter is not accused of any wrongdoing, was not the target of the search, but rather that they are pursuing a government contractor whom they say illegally leaked classified information.
BOUTROUS: Based on that, it would seem to be a clear violation of Congress’ mandate in the Privacy Protection Act. It’s inexplicable.
MARTIN: There is no law, as I understand it, barring journalists from publishing or reporting on classified information. But now that the DOJ has her computers and phone, is the journalist exposed to other risks?
BOUTROUS: That’s the danger. Both journalistic risks – the government has significant amounts, it sounds like, of work product of the journalist, potential source information – and you never know what prosecutors might do with information. Once they have it, The Post and the journalist do have the ability to file a motion to get the material back because it violated the law when they seized it, so we’ll see how that plays out. But, yes, there are all sorts of risks, including to the journalist’s First Amendment rights, but also just as a citizen who’s had private papers taken from them, apparently in violation of a clear congressional statute and the First Amendment.
MARTIN: And before we let you go, I’m sure there are some people who are listening to our conversation who just think, you know, so what? I’m not a journalist. Or who see journalists as just another set of partisans. What might you say to them?
BOUTROUS: I would say to them that journalists are doing the work for the public. That’s why the First Amendment imposes these protections for journalists. It’s not for the individual journalists. It’s really for the American people so they can get the information they need to put a check on government abuses and to elect the people who they think will do the best job running the country. So it’s really a broader point for all of us, not for the individual journalists, and it’s really an important issue.
MARTIN: That’s Theodore Boutrous. He is a partner in the Los Angeles office of Gibson Dunn. He is NPR’s lawyer in its First Amendment case against the Trump administration challenging the administration’s executive order defunding NPR and PBS. Mr. Boutrous, thank you so much for joining us.
BOUTROUS: Thank you again for having me.
MARTIN: And I do want to mention that we have asked the Department of Justice to hear from one of their spokespeople this morning. To this point, they have not yet responded.
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