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In AP Case, Little Evidence DOJ Broke the Law

Did the Justice Department break the law when it secretly reviewed the phone records of more than 20 Associated Press reporters and editors? Many legal experts aren’t ready to go that far.

Media representatives and members of Congress contend that the department crossed a line when it seized records of personal and professional calls by AP staff. DOJ is believed to have been attempting to learn the identity of one or more government officials who leaked classified information that the wire service published in a May 2012 story about terrorist activity in Yemen.

House Judiciary Chairman Robert W. Goodlatte, R-Va., and panel member Zoe Lofgren, D-Calif., are among the influential voices in both parties who believe the department may have crossed a legal threshold.

At a Wednesday hearing with Attorney General Eric H. Holder Jr., Goodlatte said the DOJ’s confiscation of the AP phone records “appears to be contrary to the law and standard procedure,” while Lofgren said she believes it “impaired the First Amendment.”

Many legal experts argue, however, that the information available about the AP investigation thus far — while incomplete — does not show any violation of legal protections for the press.

Constitutionally, the Supreme Court has never found a reporter’s privilege within the First Amendment. The closest it came was a 1972 ruling in Branzburg v. Hayes, in which it held 5-4 that reporters are not exempt from testifying in a criminal grand jury, even if it means identifying their confidential sources.

In that ruling, the court declined “to grant newsmen a testimonial privilege that other citizens do not enjoy.” Lawmakers who argue that the Justice Department infringed on First Amendment guarantees of a free press, in other words, are taking a view that the Supreme Court has never accepted.

Statutorily, lawmakers have all but acknowledged that the DOJ did not break existing free-press laws because they instead are suggesting new laws be passed in response to the AP scandal.

House Judiciary ranking member John Conyers Jr., D-Mich., and Sen. Charles E. Schumer, D-N.Y., are promoting a “media shield” law that would grant reporters new legal protections from disclosing their sources. But even proponents of such a statute agree that it may not have prevented the Justice Department from seizing the AP’s records, because it would contain a national security exception that federal investigators could have invoked.

“The facts in the AP phone records case are still coming to light, so we cannot say for certain whether the bill would have changed the ultimate outcome,” Schumer and Sen. Lindsey Graham, R-S.C., said in a May 16 letter to their colleagues urging support for the media shield bill.

Regulations Under Scrutiny

Most of the attention surrounding the propriety of the Justice Department’s actions has focused instead on internal DOJ rules that were codified in the Code of Federal Regulations in 1973. The AP argues that the department’s unusually broad probe into the news organization’s phone records, spanning portions of two months and phone lines in at least four bureaus, ran afoul of the regulations.

“The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with [the regulations] and should therefore never have been undertaken in the first place,” Gary B. Pruitt, the AP’s top executive, wrote in a letter to Holder on May 13. “The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be ‘as narrowly drawn as possible.’ This plainly did not happen.”

Lawmakers, including Senate Majority Leader Harry Reid, D-Nev., also have questioned whether DOJ acted appropriately under the rules by not first seeking to negotiate with the AP in an attempt to obtain relevant phone records.

The rules state: “Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible assistant attorney general determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.”

The Justice Department contends it didn’t violate the regulations. Holder said in a press conference May 14 that the leak at the center of the AP case was “one of the top two or three most serious leaks I’ve ever seen,” suggesting that advance negotiations with the AP were not necessary under the guidelines because they could have threatened the investigation. On the question of the breadth of its probe, the DOJ argues that its subpoenas “were limited in both time and scope.”

“For each of the phone numbers … there was a basis to believe that the numbers were associated with AP personnel involved in the reporting of classified information,” Deputy Attorney General James M. Cole, who is leading the investigation because Holder has recused himself, said in a letter to Pruitt on May 14. “The subpoenas were limited to a reasonable period of time and did not seek the content of any calls.”

Even if the department is unequivocally found to have violated its own rules, however, some legal experts say that the AP would have limited legal options in response.

“The guidelines are purely a creature of executive discretion,” said David E. Pozen, a First Amendment expert and professor at Columbia Law School and the author of a forthcoming paper about government leaks. “No congressional statute or Supreme Court decision requires that the Justice Department adhere to them.”

But a House aide, who asked not to be identified, said that a violation of the Code of Federal Regulations can come with serious civil penalties.

Other Legal Points Raised

While there may be no clear evidence so far that the department broke the law, lawmakers are going over DOJ officials’ public statements with a fine-toothed comb to test whether that is the case.

During his testimony before the House Judiciary Committee on May 15, Holder said for the first time that there is no written record of his recusal from the AP investigation, a disclosure that raised eyebrows of at least three members of the panel on both sides of the aisle. In response, Rep. Raúl R. Labrador, R-Idaho, suggested that Holder may have violated a statute requiring the attorney general to explain a recusal decision “in writing.”

“There’s already a statute, 28 USC Section 591, that requires [you] to put in writing your reasons for recusal in certain circumstances,” Labrador said. “Frankly, I’ve read it a couple times. I don’t know if it applies to your situation right now.”

A DOJ spokeswoman, Nanda Chitre, told CQ Roll Call that the statute cited by Labrador does not apply because it has expired, a point confirmed by a House aide. The department regulations that are currently in effect do not require recusals to be made in writing, Chitre added, though Holder said during the House hearing that he would consider changing that policy.

Rep. Devin Nunes, R-Calif., has pursued a different angle in response to the AP controversy. Nunes is concerned about the revelation that one of the AP phone lines included in the DOJ probe is located in the House press gallery, a line used by reporters who frequently conduct phone interviews with members of Congress. Nunes, a member of the House Intelligence Committee, has suggested that a separation-of-powers issue may be at play because the executive branch may have effectively been spying on lawmakers.

“There’s no question that Justice knows what members of Congress the AP was talking to during the two-month time period,” Nunes told CQ Roll Call in a recent interview.

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