Incident Details
- Date of Incident
- February 15, 2024
- Targets
- Eric Lach (The New Yorker)
- Legal Orders
-
-
subpoena
for
other testimony
- Feb. 15, 2024: Pending
- Feb. 19, 2024: Objected to
- Mar. 4, 2024: Quashed
-
subpoena
for
other testimony
- Legal Order Target
- Journalist
- Legal Order Venue
- Federal
Subpoena/Legal Order
A portion of a subpoena issued to New Yorker reporter Eric Lach on Feb. 15, 2024, by the U.S. attorney for the Southern District of New York, ordering him to testify about his reporting on a criminal defendant with ties to New York City’s mayor.
New Yorker reporter does not have to testify, judge rules
A judge ruled on March 4, 2024, that New Yorker staff writer Eric Lach will not have to testify about his reporting on the defendant in a federal lawsuit, according to court documents reviewed by the U.S. Press Freedom Tracker.
U.S. District Judge Lorna G. Schofield wrote that the federal government had not proved to her that the information Lach could give them was unique or critical to their investigation of the defendant, and that therefore Lach’s journalistic privilege trumped their need for his testimony.
Lach published an article in January 2023 about Brooklyn preacher Lamor Whitehead and his relationship with New York City Mayor Eric Adams. Whitehead was under federal investigation at the time and was later charged with fraud, extortion and lying to federal law enforcement. Just over a week before the criminal trial was scheduled to begin in late February 2024, the U.S. attorney for the Southern District of New York subpoenaed Lach, ordering him to authenticate statements of Whitehead’s from the published article.
Lach filed a motion to quash the subpoena on Feb. 19, arguing that testifying would make criminal defendants and other sources less willing to speak to him in the future and that being cross-examined at the trial would jeopardize his confidential reporting.
Schofield held a private interview with Lach on Feb. 26. She wrote in her March ruling that he had convinced her a cross-examination was likely to force him to disclose confidential source information, including information he had collected to verify what Whitehead told him.
“We are pleased the Court recognized that government subpoenas to journalists, even if only to authenticate a statement, can pose serious risks to independent journalism and confidential sources,” a spokesperson for The New Yorker told the Tracker via email. “If the Department of Justice attempts to compel journalists’ testimony in the future, we hope that they will more carefully consider not only the evidence that may be elicited on direct examination, but also the potential harmful effect of information revealed during any likely cross-examination.”
Eric Lach, a staff writer for The New Yorker, was subpoenaed by a federal prosecutor on Feb. 15, 2024, to testify about his reporting on a man accused of fraud, extortion and lying to federal law enforcement.
Lach began reporting on Brooklyn preacher Lamor Whitehead in 2022, according to an affidavit. Whitehead stands accused of stealing a parishioner’s savings and defrauding a businessman with claims that he could leverage his ties to Mayor Eric Adams and other city officials for financial gain, The Associated Press reported.
Lach spoke with the preacher several times that December and published an article about Whitehead and his relationship with Adams in January 2023.
The U.S. attorney for the Southern District of New York subpoenaed Lach just over a week before the criminal trial was scheduled to begin on Feb. 26. The subpoena orders Lach to testify during the trial to authenticate on-the-record statements from Whitehead in the published article.
Attorneys representing Lach filed a motion to quash the request on Feb. 19. In his accompanying affidavit, Lach voiced concerns that being forced to testify could impair not only his ability to report on Whitehead’s trial but his journalistic work generally.
“The prospect of being forced to testify in court about my news reporting is, frankly, chilling,” Lach said in his affidavit. “I often speak to criminal defendants as part of my reporting, and I am confident that criminal defendants — and other sources — will be less willing to speak to me as part of my reporting if they understand that I may be called to testify against them in their trial.”
The motion to quash argued that the subpoena is also highly invasive and would subject Lach to a cross-examination that could jeopardize his confidential reporting.
“In violation of the Department of Justice’s own guidelines, the Government seeks to compel the testimony of a journalist to authenticate a generic, run-of-the mill denial,” the motion said, noting that the statements were made after Whitehead knew he was the target of a government investigation.
The day before the subpoena was issued, the Justice Department released new guidelines for federal prosecutors limiting when they can seek journalists’ records: when the information is crucial for the prevention of a serious crime, when the journalist is the target of the investigation and when the records involve information that is already public.
To address concerns around the potential breadth of the cross-examination, Lach and his attorneys agreed to appear for a private interview with District Judge Lorna G. Schofield on Feb. 26.
The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].
