Critics have doubts Justice followed law in obtaining reporter's phone records

By The Associated Press

08.29.01

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WASHINGTON — Lawyers and news executives are questioning whether the Justice Department followed the law in obtaining a reporter's phone records after he wrote a story about a federal wiretap of Sen. Robert Torricelli.

The Justice Department was required by the Code of Federal Regulations to take "all reasonable alternative investigative steps" before subpoenaing the personal phone records of Associated Press reporter John Solomon.

Solomon's story on Torricelli, D-N.J., appeared May 4 and his incoming and outgoing telephone records from May 2-7 were subpoenaed. The department received the phone records on May 14.

"It's hard to believe that they could have complied" with the federal requirements in just 10 days, New York University law professor Stephen Gillers said yesterday.

Quoting unidentified law enforcement officials, Solomon's story revealed a federal wiretap in 1996 that captured Torricelli discussing campaign donations. Law enforcement officials can be prosecuted for leaking information obtained under federal wiretaps.

"Given that there are a potentially large number of people inside the Justice Department who could be the sources of information for the reporter, the first step under the regulations is to go to them or use other investigative techniques that might be available short of getting a subpoena," said Mary Cheh, a George Washington University law professor.

"It sounds like the Justice Department jumped the gun," Cheh said.

AP Executive Editor Jonathan P. Wolman said "we have directed our counsel to make a formal demand that the Justice Department explain the process and reasoning used to secretly obtain a reporter's telephone records. We know of nothing that comes close to justifying such a gross invasion of the editorial process."

Justice Department spokeswoman Susan Dryden insisted "there has been no change in the Department of Justice's policy or procedures regarding the issuance of subpoenas pertaining to the news media."

But a number of former federal prosecutors, including one of Kenneth Starr's ex-deputies, Solomon L. Wisenberg, questioned the Justice Department's actions.

"Could they legitimately and fully have pursued" alternative investigative steps as the law requires "in a 10-day period? It's certainly possible, but it's not likely," he said.

While Wisenberg questioned the Justice Department's actions, he also said that generally he sees no First Amendment problem with subpoenaing a reporter's telephone records.

"We think that the Justice Department has to be very cautious about invoking its investigatory powers in the legitimate pursuit of news," said Chris Peck, editor of the Spokesman-Review in Spokane, Wash., and president of the Associated Press Managing Editors. "Many other avenues short of subpoenaing telephone records of a reporter should have been considered."

The Reporters Committee for Freedom of the Press and the Investigative Reporters and Editors Inc. wrote letters of protest to Attorney General John Ashcroft.

"The case makes me wonder if seizing phone records has become a first resort rather than last resort," said Tim J. McGuire, president of the American Society of Newspaper Editors and editor of the Star Tribune in Minneapolis. "It appears to me that the Justice Department has seriously overreacted in search of a leak."

"The failure of the Justice Department to seek these records in an open and aboveboard manner is reprehensible," said Sandra Mims Rowe, former ASNE president and editor of The Oregonian in Portland, Ore.

The AP reporter first found out about the Justice Department's actions when he returned from vacation Aug. 26 and opened a notification letter from the office of U.S. Attorney Mary Jo White in New York.

This is not the first time that reporters' phone records have been subpoenaed:

• The Justice Department acknowledged it violated its own regulations by not having the attorney general approve a subpoena four years ago for the phone records of reporter James Sanders, who was investigating the TWA Flight 800 air tragedy. Sanders and his wife were sentenced to probation after their conviction for stealing bits of seat material from the reconstructed remains of the Boeing 747 that blew up.

• In 1991, the government subpoenaed free-lance writer Gregory Millman's phone records after his article in the trade magazine Corporate Finance cited nonpublic Internal Revenue Service documents in alleging the agency failed to collect millions of dollars in back taxes from General Motors Corp. and other corporations.

Updates

Leave reporters' telephone records alone
First Amendment Outrage When government big-foots journalists’ newsgathering, it tramples public's right to know.  08.31.01

While at Justice, current FBI director approved subpoena for reporter's records
Sen. Charles Grassley sharply criticizes decision, saying such drastic action should be reserved for ‘an extreme case of national security.’  08.30.01

Related

Justice Department obtains reporter's home phone records
John Solomon’s May 4 story about Sen. Robert Torricelli may have prompted secret seizure of call records; press groups express outrage.  08.28.01