SDNY COURTHOUSE, July 23 – The
defense table began with three prosecutors and ended
with four on July 23 before U.S. District Court for the
Southern District of New York Judge Arun Subramanian.
Inner City Press, with a FOIA case against DOJ pending
before Judge Sumramanian, live tweeted:
All
rise!
Judge Subramanian: Mr. Buckley, is the government
willing to withdraw the subpoena given you ask to hold
it an abeyance while you investigate?
Buckley: We are not seeking testimony. But we want the
records properly preserved
Buckley:
The
subpoenas were properly issued on July 10-
Judge Subramanian: So that's a No. Your brief says there
are investigative steps the Government anticipates
taking - since you haven't taken them, haven't you
failed the Gonzalez test?
Buckley: No.
Judge
Subramanian:
But taken the steps means there are other means, and I
should quash the subpoenas, no? Let me ask the movants,
me quashing them now would not prevent you from arguing
in the future, right?
Right.
Judge: Withdraw, or quash, those are the options
Buckley:
We would like to preserve the record. There is a circuit
split - the 4th Circuit in the Sterling case rejects the
three factor test. So we will not withdraw.
Judge: Can't you take the steps, then come back and
apply for subpoenas?
Buckley:
If we withdraw it might imply we accept the Gonzalez
test.
Judge: You're going to go to the Supreme Court?
Buckley: It's possible.
Judge: I will not understand any withdraw as accepting
the Gonzalez test. I'm trying to figure out a practical
way here
Judge:
You propose an abeyance of two weeks. But your
investigation might take longer. It seems, based on what
you say today, it would be quashed. Or you withdraw.
Buckley: In your in inclined to quash, I understand the
rationale.
Judge:
The movants say it is appropriate this Court retains
jurisdiction. Any objection?
Buckley: If directed at these reporters, yes. But not
over the entirety of the grand jury proceeding. Only the
reporters.
NYT lawyer: We are not aware of the case they cite
Judge:
Mr. Buckley, are you in charge of this investigation?
Buckley: Yes.
Judge: You said the steps you now refer to, you were not
aware - what do you mean?
Buckley: On July 10 the subpoenas were appropriate,
authorized by the Acting Attorney General
Judge:
Aren't
subpoenas supposed to be the last step? And the first
would be to ID other means not raising these 1st
Amendment issues
Buckley: To the extent I can-
Judge: I'm asking about rules, "not obtainable from
other sources."
Buckley: There's an exception
Buckley:
28 CFR 50.10(c)(4)(iv)
["the Attorney General may authorize the Department of
Justice, in such investigations, to issue subpoenas to
members of the news media" - much language before
thatJudge: You cannot point me to any language in
Romanette iv that there need not be any attempt to seek
information for other source
Buckley: I think it's clear on its face
Judge: Where?
Buckley: If the Attorney General authorizes it
Judge:
So you're saying because of the nature of this
investigation, there was no attempt to find out these
were the numbers of mother and spouses-
Buckley: That was an error. We own it. We used a public
source database
Judge: Aren't you saying you can just do it?
Buckley:
No.
The family members, that was a mistake, not in
furtherance of the investigation.
Judge: There was other earlier reporting on the
defensive capability of the new Air Force One. So what
gave the Government concerns?
Buckley: Citing gov't sources
Buckley:
We would be prepared to immunize these reporters - our
focus is on the leakers.
Judge: Is Mr. Sullivan here?
Buckley: Yes. In the gallery
Judge: Why? He is on all the pleadings. Come up- we have
extra chairs here. Good afternoon.
Sullivan: Good afternoon
Judge:
You didn't tell the judge that the subpoena was about
reporters, about the New York Times?
Sullivan: We did not. It was an oversight. Later we did
legal research.
Judge: Wouldn't it have been relevant to know there had
been public reporting?
A: Yes
Judge:
Are you going to do this again?
Sullivan: Absolutely not.
Judge: It said non-disclosure would continue for one
year - why?
Sullivan: It applied to the wider public as well. These
investigations came take more than a year.
Judge: Even the account holders?
No
Judge
Subramanian:
If these were a regular case I would issue an Order to
Show Cause why sanctions should not issue. Why not here?
Buckley: Look at footnote 5
Judge: That wasn't sufficient. I am giving you the
opportunity to meet it more fully
Buckley: Never again
Judge:
What additional case law did you find?
Buckley: That account holders could have standing to
challenge.
Judge: You mean the Gonzalez case - were you unaware of
it?
Buckley: It was an inadvertent error, not a fast one on
a court.
Judge:
You were not aware of the leading case in this field?
Buckley: No.
Judge: Why was it an issue of the Gonzalez case at all?
Buckley: We had the regulation about bodily harm. I
can't get into it in public.
Judge: How could it be true in these circumstance?
Judge:
DOJ on July 11 has made a statement about it - so how
was this appropriate?
Buckley: Yes, we should have done it. I personally did
not review the non-disclosure. I do not review every
single piece of paper.
[Silence]
Judge:
You say you don't want to withdraw the subpoenas. But
the errors are piling up.
Buckley: I am struggling with this: what is the
difference, if we hold them in abeyance? It's only
testimonial.
Judge: Didn't you just speak about document
preservation?
Buckley:
There
is a duty to preserve documents.
Judge: But the subpoena doesn't say what the
investigation is about.
Buckley: If I had a client, I would say, Preserve them.
Judge: How would they know what the scope was?
Buckley: We spoke with counsel about this
Buckley:
Give
me a minute to confer
[Buckley,
Sullivan,
Maimin and Richman still conferring]
2:57 pm
Buckley: Can we have a five minute adjournment to confer
with movants' counsel?
Judge: Of course. We'll come back in five
[Same links as above : )
There's time to answer questions, if there are any
3:11
pm
Buckley: The Government is prepared unilaterally to
withdraw the subpoenas at this time. If under Gonzalez
we find it appropriate to seek new subpoenas, we'll come
to the court.
Judge: Moving forward, we would have the issues that
have plagued it so far
Judge:
Mr. O'Neil take it away.
David O'Neil of Debevoise: I have a lot to say but I'll
be brief. It is important that the public know that the
Government is unilaterally withdrawing these subpoenas.
After this bad faith, I do not expect new
subpoenas
Judge:
Mr. Buckley has said the Government will follow the
regulations going forward, despite the hiccups to say
the least
Buckley: We dispute any allegation of bad faith, I'll
just leave it at that.
Judge: Anything else?
Buckley: Not from the government
Adjourned
The
case is In re Grand Jury Subpoenas Dated July 10, 2026,
1:26-mc-352 (Subramanian)
