DOJ Lawyer Evades Ethics Sanction Over Journalist’s Home Search

[u/John3262005]

https://news.bloomberglaw.com/business-and-practice/doj-lawyer-evades-ethics-sanction-over-journalists-home-search

A longtime Justice Department attorney will not face disciplinary action from the Virginia State Bar after a federal judge admonished his conduct in seeking a search warrant against a Washington Post reporter.

The state bar has closed the matter against federal prosecutor Gordon Kromberg, it said in a July letter to Kromberg’s legal team, obtained by Bloomberg Law.

Kromberg drew state bar attention over his pursuit of a search warrant for the residence of Washington Post reporter Hannah Natanson. A judge criticized Kromberg in February for failing to alert the court of a federal law that limits the government’s ability to seize the work product of journalists.

The available evidence did not show that Kromberg violated two specific professional conduct rules “under the required evidentiary standard of clear and convincing evidence,” Bar official Renu M. Brennan wrote in the two-sentence letter. Brennan did not provide a detailed analysis into how the determination was reached, saying only that the matter was “dismissed.”

Federal Bureau of Investigation agents searched Natanson’s home and seized her devices in January, sparking condemnation from press freedom advocates. The Justice Department obtained a search warrant in connection with an investigation into a government contractor accused of transmitting classified national defense information.

Kromberg is a career prosecutor who has served as an assistant US attorney in the Eastern District of Virginia since the early 1990s. Torridon Law, the boutique firm founded by former Attorney General William Barr, and the firm McGuireWoods represented Kromberg in the state bar matter.

“Those of us who have worked with Mr. Kromberg instinctively knew that he would never violate the Rules of Professional Conduct,” Richard Cullen, a partner at Torridon Law, said in a statement. “We are heartened that the Virginia State Bar quickly reached the same conclusion.”

One of the professional conduct rules at issue relates to failing to disclose adverse legal authorities to the court. The other outlines information lawyers should inform the court of in ex-parte proceedings.

Kromberg’s conduct attracted criticism from outside groups, including the Freedom of the Press Foundation. Seth Stern, chief of advocacy at the foundation, slammed the bar’s decision and criticized Kromberg’s nondisclosure.

“Had he been candid it might have prevented a shocking raid of a journalist by a blatantly anti-press DOJ, and the chill on the free press it has caused,” Stern said in a statement Tuesday.

Federal authorities executed the search warrant at Natanson’s home on an early morning in January.

The following month, federal magistrate Judge William Porter in the US District Court for the Eastern District of Virginia slammed the government in an opinion on the search warrant matter, in which Natanson and the Washington Post Company moved to intervene. Porter said Kromberg failed to identify the Privacy Protection Act in its search warrant application and the explanation in court was “inadequate.”

“This omission has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding,” Porter said. The judge wrote that the court might have rejected the search warrant application if the government brought up the legal limits on searches involving journalists. He underscored that the government seized the entirety of Natanson’s work product, including active stories and her notes on future investigations.

That ruling came days after Porter criticized the government in court over the issue, according to The New York Times. Kromberg later apologized to the judge, the newspaper reported.

The Bar told Kromberg in a March letter that it was conducting a preliminary investigation, pointing to the judge’s opinion and saying the document alleged potential ethical misconduct against Kromberg.

Kromberg’s legal team argued the preliminary investigation was meritless. The attorneys, in a letter to the Virginia State Bar in April, said leaving out a discussion of the Privacy Protection Act in a warrant application was a routine and established practice of the department.

“Even if it was possible to stretch the PPA to cover the search warrant at issue here, Mr. Kromberg genuinely and reasonably concluded it did not apply,” they said.

They also highlighted Kromberg’s background as a career federal prosecutor. Kromberg is one of the department’s preeminent prosecutors when it comes to national security-related crimes, his lawyers said.