A Justice Department filing is drawing scrutiny after lawyers said the government indicated it would not put a response in writing because statements it made could be presented to the court or “otherwise used against it.”

National security writer Marcy Wheeler highlighted the remark in a Wednesday post about a court exhibit in a case involving reporters who were present at a Cities Church protest in January 2026. Wheeler wrote that “the primary issue in this conversation was potentially illegal spying on journalist Georgia Fort using customs summonses,” referring to Emmy Award-winning journalist Georgia Ellyse Fort.

Customs summonses, issued under federal trade and border enforcement authority, are administrative tools that allow Homeland Security Investigations to demand records from third parties such as telecom providers without a court order. Their use to obtain a journalist's phone records sits in tension with long-standing Justice Department regulations at 28 C.F.R. Part 50.10, which govern how the department may obtain information from members of the news media. Those rules were tightened after the 2013 revelations that the DOJ had secretly seized Associated Press phone records and tracked a Fox News reporter under the Obama administration. In 2021, then-Attorney General Merrick Garland formalized a policy prohibiting the department from using compulsory legal process to obtain journalists' records in leak investigations.

Fort is accused of being a protester because she was at the event to report on it. She faces three felony charges, including a hate crime charge.

According to Wheeler, defendants in the case tied to the Cities Church protest have asked the judge to continue deadlines, arguing that the Justice Department has been stalling. The journalists involved opposed the request, contending that the delay is part of broader problematic conduct by the DOJ and Homeland Security Investigations Agent Timothy Gerber.

Lawyers for Fort allege that Gerber has been spying on her. A judge blocked Gerber from obtaining cell-site simulator data and toll records that included Fort’s phone. Wheeler wrote that Gerber then began “using customs summonses for some of the same information, continuing all the way until late May.” Cell-site simulators, sometimes called Stingrays, mimic cell towers to capture phone location and identifier data, and their warrantless use has drawn judicial pushback in multiple jurisdictions.

In a letter from Fort’s lawyer, prosecutors “would not specify, when asked, whether it is continuing to issue customs-related administrative summonses as part of this case.”

Prosecutors are required to provide the defense with evidence obtained in a case. Gerber referenced data received from T-Mobile concerning Fort’s phone, but the records were not attached. The Justice Department has not stated why Fort is under surveillance.

The letter to the judge also described a phone call with DOJ attorney Ned Hedley. Fort’s legal team said Hedley indicated that the government did not want to put its position in writing.

“We understand from Mr. Hedley the government does not intend to respond to our correspondence in writing, out of the concern expressed on the call that what it represents to us could be put before the Court and/or otherwise used against it,” the lawyer wrote. “Thus, to the extent we have misunderstood the government’s position conveyed on the call, please respond to this email in writing to clarify things from your perspective; otherwise, we will assume this accurately captures the parties’ discussion.”

In documenting the call, attorney Matthew S. Ebert said the DOJ “does not intend to address with the court the significant misstatements about Ms. Fort's conduct that appear in the superseding indictment.” He also wrote that the department “has not identified, and does not intend to identify, what evidence on which it is relying to support the allegations against Ms. Fort in the superseding indictment.”

Ebert further said the DOJ indicated it does not intend to notify judges about false testimony that had previously been submitted to them.

Wheeler also noted that the lawyers involved work under Assistant Attorney General for Civil Rights Harmeet Dhillon, who has been associated with 2020 election conspiracy theories. At the time, Dhillon called for the jailing of journalists and political opponents who refused to promote those claims.