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The Freedom of the Press Foundation, a nonprofit dedicated to protecting press rights outlined in the First Amendment of the U.S. Constitution, has filed a formal complaint seeking disciplinary action against a federal prosecutor following a highly unusual raid of a journalist’s home last month.
In mid-January, federal agents served a search warrant to Washington Post journalist Hannah Natanson, conducting a raid on her home and confiscating her electronic devices, including her cellphone and laptop computers.
Natanson was informed that she was not the subject of the inquiry itself, but that investigators were looking for information relating to a government contractor named Aurelio Perez-Lugones, who had been charged with “unlawful retention of national defense information.” Natanson’s work as a journalist focuses on the consequences of President Donald Trump’s mass firings of workers in the federal government.
Perez-Lugones doesn’t have connections with journalists, and it’s not alleged that he shared any classified documents with reporters like Natanson. At the time, press freedom organizations blasted the government for the highly unorthodox search, as it is extremely rare for investigations — including those featuring classified documents — to be conducted at journalists’ homes.
“There are important limits on the government’s authority to carry out searches that implicate First Amendment activity,” said Jameel Jaffer with the Knight First Amendment Institute at Columbia, shortly after the raid took place.
On Friday, the Freedom of the Press Foundation submitted a formal complaint to the Virginia State Bar, alleging that the person who applied for the search warrant on Natanson’s home, Assistant U.S. Attorney for the Eastern District of Virginia Gordon Kromberg, had omitted key facts about his request.
Kromberg, for example, “failed to disclose the Privacy Protection Act of 1980, a federal statute that limits search warrants for journalistic work product and documentary materials” within his application.
As the organization explained in its complaint:
The Privacy Protection Act prohibits searches of these materials except when there is probable cause to believe that the reporter (or other target of a search, since the Act is not limited to professional journalists) has themselves committed a crime to which the materials relate. The Act makes clear that authorities cannot circumvent the exception for reporters’ own crimes by deeming reporting itself – e.g. “possession” or “receipt” or protected information – a crime.
The complaint further alleges that Kromberg’s mistake doesn’t appear to be a “mere oversight,” but rather a purposeful omission, given that investigators knew the raid was going to make national headlines and that, in such circumstances, it required greater discussion “with and authorized by the highest levels of the DOJ, including the Attorney General.”
Since the warrant application doesn’t identify Natanson as a subject of any investigation, and doesn’t inform the judge of the Privacy Protection Act stipulations, the request for the warrant was deeply troubling, and requires disciplinary action against Kromberg, the complaint states.
The Freedom of the Press Foundation recognized that the search caused reputational and professional harm to Natanson, writing that she is “without terabytes of material, therefore unable to complete stories in progress.” The improper raid also jeopardized her confidentiality with sources, the group said, “and journalists and whistleblowers across the country are sure to think twice about drawing the ire of the current administration” because of Kromberg’s errors.
“Surely, the decision to take such a drastic and alarming action – recognized by the department’s own guidelines as ‘extraordinary measures, not standard investigatory practices’ potentially subject to the Privacy Protection Act – was not made lightly, and Kromberg and his team were well aware of applicable law, but deliberately chose not to mention it,” the complaint states.
The organization asks for a strong response to Kromberg’s negligence from the Virginia State Bar.
“We request that this office take appropriate disciplinary action, up to and including disbarment, and that it expedite disciplinary proceedings due to the dire consequences for First Amendment freedoms if illegal newsroom raids and seizures of journalists’ work product are allowed to go unchecked,” the complaint states.
In a statement accompanying the complaint, Seth Stern, chief of advocacy for the Freedom of the Press Foundation, reiterated the organization’s demands.
“Disciplinary bodies cannot look the other way and ignore misconduct that threatens the First Amendment, particularly from an administration with a long history of misleading judges and everyone else,” Stern said. “When prosecutors abuse their power to facilitate efforts to silence reporting and intimidate news sources, disciplinary authorities must hold them accountable and impose real consequences.”
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