By Dan Kennedy • Tracking the future of local news and other passions since 2005

Should a judge be expected to know when a prosecutor’s request is illegal? I would have thought so. But that turns out to be not the case with regard to a Washington Post reporter whose home was raided by the FBI last month as part of a leak investigation targeting a Pentagon contractor.

Follow my Bluesky newsfeed for additional news and commentary. And please join my Patreon for just $6 a month. You’ll receive a supporters-only newsletter every Thursday.

New York Times reporter Charlie Savage reported recently that the Justice Department had failed to tell a judge that a 1980 federal law prohibited the government from seeking a journalist’s reporting materials in most instances. Because of that failure, the judge issued a warrant to search the home of Post reporter Hannah Natanson — a shocking move given that journalists are generally summoned to court and given an opportunity argue against being forced to turn over their documents.

The Privacy Protection Act prohibits investigators from seeking or taking a journalist’s documents unless the journalists themselves are suspected of breaking the law. Savage quoted Gabe Rottman of the Reporters Committee for Freedom of the Press:

By not alerting the judge to the existence of a federal law that is supposed to limit searches for reporting materials, it may have greased the skids for the judge agreeing to the warrant when otherwise the judge might have scrutinized it more carefully.

Reprehensible as the Trump administration’s conduct was, I would have assumed that the judge was obliged to know about the law whether prosecutors chose to tell him or not. But when I made that point on social media, several lawyers told me that’s not how it works. And in a follow-up published last Friday, Savage and fellow Times reporter Erik Wemple reported that the judge blasted prosecutors for breaching their ethical duty. Savage writes:

“Why didn’t you raise it?” Judge William B. Porter of the Eastern District of Virginia asked during a heated stretch of a hearing at the federal courthouse in Alexandria, Va. “It’s a threshold question in this case.”

The assistant U.S. attorney who submitted the warrant application, Gordon D. Kromberg, later conceded that he had known about the law, but also said he had been following department policy in not bringing it to the judge’s attention.

Earlier this week Judge Porter rejected the government’s request to search Natanson’s documents and electronic devices, ruling that the court would handle that task. This is not unusual in cases involving a reporter’s confidential materials.