Leave reporters' telephone records alone
First Amendment Outrage
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08.31.01
The government's latest — and boldest — assault on the press has all the earmarks of an overwrought spy caper, were it not so very real and ominous.
And the still-unfolding role of top officials who took the extraordinary action of secretly subpoenaing a reporter's home phone records raises serious constitutional questions about government interference with newsgathering. Such interference effectively interrupts the flow of information to the public.
From what has been revealed so far, it appears this time it's not just the spirit of the law that has been broken. The letter of the law seems also to have been ignored.
For when Justice Department officials subpoenaed Associated Press reporter John Solomon's personal calls on the six days surrounding his May 4 story on Sen. Robert Torricelli, they appeared to have blithely ignored the very premise of their policy for such actions.
Solomon had reported that Torricelli, a New Jersey Democrat, was overheard on a federal wiretap discussing campaign contributions with a known crime figure's relative. Solomon's sources for the wiretap disclosures were unidentified law enforcement officials, who can be prosecuted for leaking that kind of information.
Outside of criminal cases, when government goes after press sources like this, it threatens reporters' ability to ensure confidentiality. That threatens the foundation of a reporter's ability to report freely.
The shadow of Watergate looms large; the collective memory of it appears to have faded.
Watergate was, in fact, the impetus for the federal Code of Regulations, Section 28, Part 50.10, which sets out concise standards for subpoenaing a member of the press or the telephone records of that person.
Its overview states: "Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues."
You might ignore — as Justice apparently did — the fact that a subpoena of a journalist's phone records requires the government to determine ahead of time whether the same information could be acquired elsewhere. But one of the main unanswered questions that has emerged in the loud outcry from press groups around the country is: why Justice did not notify AP in advance to give the news organization a chance to contest the matter, a first course of action outlined in the code.
It gets even more perplexing.
The guidelines require that a press subpoena be approved by the U.S. attorney general. In this case, John Ashcroft has recused himself from any involvement in the investigation of Torricelli being run by U.S. Attorney Mary Jo White in New York. White was the one who went after the subpoena as soon as Solomon's story appeared. And the person she went to was then-acting deputy attorney general Robert Mueller, whose role in Justice ended May 14, the day the subpoena was executed.
Mueller, a veteran federal prosecutor, has moved on to his new job, as head of the FBI, an agency that must have been keenly interested in Solomon's story because of the leaks.
There's more.
If such a subpoena is indeed executed without a reporter's knowledge, the code requires that the journalist be notified "as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation."
Cast aside the ominous message implied by that last fragment of that paragraph — it would seem to turn a reporter's traditional role of observer into player in this case — and consider the time frame set out for such notification:
"Such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days."
Solomon received his required letter of notification in a letter from White that was dated Aug. 20.
And there lies the most intriguing question of all. Not only did Justice appear to take longer than the required 90 days to notify the AP, but Mueller was the one required to make that extension decision.
So did he sign the extension the day the subpoena was executed, the same day he left Justice? And if so, why? Just how long did Justice officials think it would take to track whatever calls they expected to find on Solomon's phone records?
Certainly there can be one chilling conclusion from all this: In this administration, so many years beyond Watergate, government interference with the press is excusable, the Constitution be damned.
Coming on the heels of the jailing of free-lance writer Vanessa Leggett for her refusal to turn over interview material to a federal grand jury investigation, this latest outrage does nothing to quell the rising uneasiness that press rights are being clearly shunted aside when the government determines its need to know is paramount.
The Solomon case involves law enforcement officials speaking confidentially. In Leggett's case, those sources included FBI agents and prosecutors. To plug such leaks, the government is using subpoenas and jail time to bully the press into serving as the plumbers.
There is a dangerous deja vu pattern evolving here. Government officials who big-foot on the First Amendment with such obvious disdain are dispatching not just the news media's right to report but also the public's right to know.
Original story
Critics have doubts Justice followed law in obtaining reporter's phone records
‘It's hard to believe that they could have complied’ with federal requirements in just 10 days, says NYU law professor.
08.29.01
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