Explainer-Can prosecutors compel New York Times journalists to testify in leak probe?

NEW YORK, July 14 – New York Times journalists have been issued subpoenas seeking to force them to testify before a Manhattan federal grand jury on Wednesday after reporting on security concerns over President Donald Trump’s flight on the new Qatari-donated Air Force One.

Here’s what the law says about compelling journalists to testify in criminal cases and how the New York Times might fight the subpoenas.

WHY ARE THE JOURNALISTS BEING CALLED TO TESTIFY?

Manhattan U.S. Attorney Jay Clayton issued the subpoenas on Friday, the Times said, ordering journalists to testify on Wednesday “in regard to an alleged violation of federal criminal law.”

Times Executive Editor Joe Kahn said in a Saturday internal email reviewed by Reuters that five reporters were issued subpoenas “after they reported on security shortcomings of the Qatari-donated jet that forced the president to use an older government plane for his recent international travel.”

The Times’ top lawyer called the subpoenas a brazen attempt to intimidate journalists and vowed to fight them. The Justice Department would not confirm or deny the subpoenas but told Reuters on Friday it was targeting leakers of classified information, not journalists.

The new plane is a Boeing 747 refitted by defense contractor L3Harris Technologies.

WHAT DOES THE LAW SAY?

Journalists have limited legal protections against federal subpoenas.

The Supreme Court has held the First Amendment of the U.S. Constitution, which guarantees press freedoms, does not allow reporters to refuse subpoenas unless they are issued in bad faith or to harass them.

Federal courts have since recognized a qualified privilege weighing whether the information is essential, obtainable elsewhere and whether other factors outweigh press freedom. That protection is strongest in civil cases and weakest in criminal grand jury investigations.

Many states, including New York, have shield laws protecting journalists’ sources. No federal equivalent exists, and state shield laws do not apply to federal subpoenas.

IS THIS UNUSUAL?

Subpoenaing journalists requires top-level approval and is subject to limitations under Justice Department policies.

Both Republican and Democratic administrations have sought to compel journalists to reveal sources in leak probes, but press groups say Trump’s Republican administration has used subpoenas and search warrants too freely, including against the Washington Post and Wall Street Journal. They also accuse Trump of using government power and private lawsuits to bully and harass the news media.

The Trump administration has said it is pursuing criminal charges against leakers, not targeting journalists.

WHAT COULD THE TIMES ARGUE?

The Times has said it will fight the subpoenas. The newspaper could ask a judge to quash the subpoenas as overbroad, issued in bad faith or violating First Amendment protections.

It could also argue the Justice Department violated internal policy requiring prosecutors to weigh whether the information is essential, obtainable elsewhere and to negotiate with outlets first. Those policies are not enforceable in court, but judges can weigh them in considering the legitimacy of subpoenas.

The Justice Department previously withdrew grand jury subpoenas against Washington Post and Wall Street Journal reporters after they challenged them in sealed court filings.

The government had sought information from the Post about its reporting on U.S. military action in Venezuela, and from the Journal about an article concerning warnings to Trump about war with Iran, according to a New York Times report citing anonymous sources.

In January, press freedom groups criticized the FBI for taking the rare step of searching the home of a Washington Post reporter as part of a leak probe.

WHAT HAPPENS IF THE REPORTERS REFUSE TO TESTIFY?

If prosecutors offer immunity, the journalists lose their Fifth Amendment right against self-incrimination and could be held in contempt for refusing to testify, risking jail time or fines until they comply. The Times could separately challenge a contempt ruling. REUTERS