The Obama administration’s record on transparency once again faces criticism—this time from both Republicans and Democrats—following the revelation that the U.S. Department of Justice secretly obtained and reviewed Associated Press telephone records during a criminal investigation into a suspected leak of classified information.
The Associated Press, revealing this week that the Justice Department obtained two months of records for 20 phone lines used by reporters and editors, called the government subpoenas a "massive and unprecedented intrusion" into newsgathering. The company told Attorney General Eric Holder Jr. in a letter that "there can be no possible justification for such an overbroad" collection of phone call data.
Leading Republicans and Democrats in Congress—including the Senate majority leader and the ranking Republican on the Senate Judiciary Committee—are pressing Holder over whether prosecutors exceeded their authority and trampled on constitutional protections in the process.
Holder on Tuesday said he was confident that prosecutors didn’t violate any department guidelines. Addressing reporters at Main Justice, the attorney general said that trying to determine the source of the leak of classified information "required very aggressive action."
Lawyers say the department has grown more aggressive in collecting information from reporters since the mid-2000s, when prosecutors investigated the leaked identity of covert CIA operative Valerie Plame. More so than during previous administrations, the Justice Department under Holder has zealously pursued leak prosecutions, causing alarm among whistleblower lawyers and attorneys for media companies.
Lawyers familiar with Justice Department leaks inquiries said the AP subpoenas seemed to run afoul of department rules that require narrowly tailored requests when it comes to pursuing evidence from news reporters.
The Reporters Committee for the Freedom of the Press on Tuesday sent Holder a letter, signed by 40 media groups including ALM Media LLC, which publishes the NLJ, questioning whether the Justice Department "ignored or botched" those guidelines requiring narrowly tailored requests when it came to pursuing evidence from news reporters.
"The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public’s interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case," the letter said.
Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., co-chairman of the firm’s appellate and constitutional law group and a longtime lawyer for media companies, described the AP subpoenas as "so broad, so indiscriminate, so contrary to basic First Amendment principles."
"It’s not clear there was some nefarious purpose here," Boutrous said, "but it was bungled." On Twitter, Boutrous urged the Justice Department to release its authorization for the AP subpoenas to allow public scrutiny.
Holland & Knight partner Charles Tobin, who has represented the AP but not in this matter, called the department’s behavior a "colossal incursion into the autonomy of the free press."
The subpoenas, Tobin said, were in line with the department’s recent efforts to pull reporters into leaks investigations, but officials went a step further by failing to notify or negotiate with the AP first.
"If they want information from a journalist, they’re supposed to give them notice and an opportunity to go to court and litigate the issue," Tobin said, referring to the department’s guidelines. The Justice Department can bypass negotiations if the attorney general believes it would threaten the investigation, Tobin said, but "that really doesn’t make sense when you’re investigating leaks that took place in the past."
Holder disclosed on Tuesday that he didn’t make the decision to issue the AP subpoenas. That authority, he said, fell to James Cole, the deputy attorney general. Holder said he recused himself after the FBI interviewed him last year in the pending criminal investigation into the unauthorized disclosure of classified information.
Responding to criticism of the department’s action, Cole said in a letter to Gary Pruitt, the AP president and chief executive officer, that the subpoenas were "limited in both time and scope." Cole noted that the subpoenas did not seek the content of any phone call.
The Justice Department, Cole said, conducted more than 550 interviews and reviewed tens of thousands of documents before seeking the AP phone records for the months of April and May 2012.
"We strive in every case to strike the proper balance between the public’s interests in the free flow of information and the public’s interest in the protection of national security and effective law enforcement of our criminal laws," Cole wrote. "We believe we have done so in this matter."
Cole acknowledged the Justice Department is required to negotiate with news organizations before issuing a subpoena—unless doing so, he said, "would pose a substantial threat to the integrity of the investigation."
Chadbourne & Parke partner Abbe Lowell said that no one "yelled and screamed" in the past when law enforcement stepped up efforts to collect information from media outlets, opening the door to the AP subpoenas.
"As law enforcement takes one step without being restrained, it gets emboldened to then expand to the next step and that’s what this reflects," he said. Lowell, who has been involved in several leaks cases, represents a State Department contractor charged in Washington federal district court with leaking information to a reporter.
In another pending case, this one before the U.S. Court of Appeals for the Fourth Circuit, prosecutors argued that New York Times reporter James Risen should be forced to disclose the identity of a confidential source in the context of a criminal prosecution. The Justice Department is fighting on appeal to reverse a trial judge’s ruling for the Times. The appeals court heard oral argument in May 2012.
A lawyer for Risen, Joel Kurtzberg of Cahill Gordon & Reindel, said in court papers that "every court of appeals to have examined this issue" has determined the existence of a federal reporters’ privilege in the context of a criminal trial.
Miller & Chevalier white-collar defense partner Barry Pollack, a lawyer who represents the defendant in the case, James Sterling, said via email that the Justice Department’s "zeal to ferret out the source of the leak is understandable." But that aggressiveness, Pollack said, must be checked so that the investigations don’t have what he called "collateral damage."
"Approval is to be given only if obtaining the information will not have an undue chilling effect on journalism, other investigative means have been exhausted, and efforts have been made to obtain voluntary compliance from the media organization at issue," Pollack said. "It is not at all clear how this policy was followed with respect the AP phone records subpoena."
Several First Amendment lawyers in Washington said the AP could decide to sue over the DOJ subpoenas, but it’s unclear exactly what remedy would be available.
Boutrous of Gibson Dunn said the AP’s legal options could include filing a civil rights lawsuit or seeking relief from the court if there were a grand jury investigation. He said courts generally haven’t found the Justice Department’s guidelines enforceable by private parties, but will consider the guidelines in weighing First Amendment claims.
In his letter to the AP, Cole said the "records have been closely held and reviewed solely for the purposes of this ongoing criminal investigation. The records have not been and will not be provided for use in any other investigations."
Regardless whether there’s a lawsuit, the AP subpoenas are sure to be the subject of congressional hearings. Holder likely will be questioned on Wednesday by members of the House Judiciary Committee during a previously scheduled oversight hearing.
On Monday night, hours after the AP disclosed the Justice Department’s review of phone records, Senator Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, said the Obama administration "needs to be transparent with its rationale for such a sweeping intrusion" into newsgathering. Senator Patrick Leahy (D-Vt.), chairman of the committee, called the AP subpoenas "troubling."
Senate Majority Leader Harry Reid (D-Nev.) on Tuesday said the Justice Department should have gone to the Associated Press before issuing the subpoena, and that he would look into whether legislative action is called for.
"I have trouble defending what the Justice Department did in looking at the AP," Reid said during his weekly press conference on Capitol Hill. "It’s inexcusable and there’s no way to justify this."
Zoe Tillman and Mike Scarcella are reporters for The National Law Journal, a Legal affiliate based in New York.