Judge’s rebuke of DOJ in raid on journalist’s home exposes bigger problem

A judge who approved the search warrant that led to a raid on journalist Hannah Natanson’s home has recently chastised prosecutors for failing to tell him about a federal law that limits such raids. Judge William B. Porter said that prosecutors should have informed him about the Privacy Protection Act of 1980, a law that forbids almost all search warrants targeting journalists.

But Porter’s rebuke sparked a debate: Isn’t it the judge’s job to know the law himself?

The answer is more complicated than it may seem at first. It’s true that we generally expect judges to know the law, and they have law clerks who help them research relevant statutes and precedents. But judges and their staffs are human, and the legal system is designed with that in mind. Our adversarial system, with prosecutors and defense attorneys on opposite sides, encourages lawyers to make sure a judge knows about the facts or law that helps their case or harms their opponent.

Sometimes, however, that system breaks down or isn’t followed. For example, when the government applies for a search warrant, there is no opposing side. Only prosecutors and law enforcement officers make their case to a judge. The person targeted by the search warrant doesn’t even know about it, let alone get a chance to oppose it.

In those situations, we rely not only on the judge’s acumen but also attorneys’ ethical obligations. Attorneys have an ethical duty to inform the court of any relevant law, even if it hurts their case. They can argue that the law doesn’t apply, but they can’t pretend it doesn’t exist. Prosecutors, in particular, are also supposed to seek justice, not just win cases.

That didn’t happen in the Natanson case. Assistant U.S. Attorney Gordon D. Kromberg knew about the Privacy Protection Act but chose not to mention it in the government’s request for a search warrant targeting Natanson’s home and devices, part of an investigation into a government contractor accused of leaking to the press.

Kromberg told Porter the omission was because of Department of Justice memos that said that the act didn’t apply in circumstances like Natanson’s, “when there was a reason to believe that the individual who maintained the information was involved in the offense.” But the decision of whether the act applied or barred the search warrant was one for the court to make, not prosecutors.

It’s deeply alarming to have DOJ lawyers decide they don’t have to tell judges about the Privacy Protection Act when they’ve unilaterally decided it doesn’t apply because a reporter is “involved” in a crime. For one thing, the DOJ’s determination that Natanson was “involved” in an offense because she allegedly received classified documents from a source relies on a deeply controversial reading of criminal law. For another, failing to mention the act also makes it more likely courts will simply overlook it.

That’s because the Privacy Protection Act is a little-known law that most judges have probably never heard of. After all, the government doesn’t apply for a search warrant to raid newsrooms or journalists’ homes every day (though it does it more often than it should, and judges’ apparent ignorance of the act suggests a real need for more judicial training).

But unless something changes, real accountability for following such an unethical policy may be elusive. We filed an ethics complaint with the Virginia State Bar, arguing that Kromberg violated his ethical duties by failing to disclose the law to the court in the Natanson case. The bar punted on the complaint, saying it was a matter for the court to handle. We resubmitted the complaint after Porter’s remarks, but have not yet heard back.

Meanwhile, the DOJ is trying to make it harder for state bars to investigate federal prosecutors at all. Porter’s admonishment of Kromberg, while embarrassing, is hardly a strong deterrent toward future omissions.

Even worse, the government may still get the information it wanted from Natanson as a result of a raid that never should have happened in the first place. While Porter refused to allow the DOJ to search Natanson’s seized materials, he decided instead to search them himself. After his search, Porter will give prosecutors anything he finds that’s relevant to their leak investigation.

The DOJ has also demanded that the court turn over any classified material found on Natanson’s devices, whether it relates to the original leak investigation or not, and it’s appealing Porter’s ruling restricting its ability to conduct its own search.

In the end, then, the DOJ may get most of what it wants and suffer nothing more than a public scolding. That sends a terrible message. If prosecutors believe they can sidestep the Privacy Protection Act without consequence, then its protections become largely meaningless. Although journalists can file lawsuits to recover damages for violations of the act, even that apparently operates as very little deterrent.

The solution is to create consequences that matter. Congress should investigate whether the DOJ is operating under a formal or informal policy that tells prosecutors to omit or downplay the Privacy Protection Act in search warrant applications. Judges must be better trained on the act and start enforcing lawyers’ ethical duties with sanctions and other real consequences, not just finger-wagging. State bar associations must do their jobs and actually enforce ethical standards when prosecutors cross the line.

Without these reforms, the next time a journalist’s home or newsroom is raided, it won’t be an oversight or a mistake. It will be the new normal for press freedom in America.