Eric Holder
Eric Holder (Molly Riley/Associated Press)

In denouncing the secret subpoena of its phone records by the Justice Department, the Associated Press talked, in part, about its journalistic lifeblood: “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period,” wrote AP President and CEO Gary Pruitt in a May 13 letter.

John Solomon knows about that. Before jumping to the Washington Post and the Washington Times — among other stops – Solomon put in 20 years at the Associated Press. He did a lot of investigative stuff, like a story in early May 2001 about the activities of Sen. Robert Torricelli. Back in 1996, wrote Solomon, FBI agents who were monitoring a pizzeria in Florida picked up a chat between Torricelli and some supporters on the topic of fundraising. From the story:

The 1996 intercept, weeks before Torricelli was elected to the Senate, surprised the FBI agents and they alerted the Justice Department. Prosecutors reviewed the tape and concluded there was no reason for further investigation, law enforcement officials said. The call received new scrutiny two years later when allegations surfaced of thousands of dollars in illegal straw donations to Torricelli’s campaign, the officials told the Associated Press, speaking only on condition of anonymity.

The Justice Department was impressed with Solomon’s scoop. So impressed that it subpoenaed Solomon’s home phone records that very month. Solomon himself didn’t discover this development until August, when he received a letter from Justice explaining things.

Looking back on the incident, Solomon takes a dim view of officialdom’s intrusions. “There were many other options that the Justice Department had,” said Solomon. Did they check with all other people who might have access to the wiretap information? “They never proved to us that they had exhausted other methods….Our lawyers were concerned that they went right after the phone records.” Watergate-era guidelines on this matter state, in part:

All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

The action against Solomon stirred a backlash among commentators not unlike the incipient objections to yesterday’s news about the secret AP phone subpoena. In response to queries after Solomon’s news, Justice stated that it had subpoenaed journalists’ phone records 13 times over the previous decade.

In the early days of September 2001, says Solomon, he and his AP bosses failed to get good answers from the Justice Department about the subpoena. On Sunday night, Sept. 9, 2001, Solomon had a phone chat with Barbara Olson, a passionate conservative TV commentator and lawyer. Solomon recalls that Olson had pledged to help his legal team beat back the Justice Department. “She was furious,” Solomon recalls. Two days later, on Sept. 11, Olson died aboard American Airlines Flight 77, which crashed into the Pentagon.

David Schulz, a lawyer with Levine Sullivan Koch & Schulz who has long represented the AP, says that the news service had sent a letter on Sept. 10 to the Justice Department “demanding a bunch of other information.” But the events of the following day, says Schulz, effectively ended the issue. “This all became history,” says Schulz.

It stuck with Solomon, however. “I knew instantly that it was going to cause a problem for me,” he says. A couple years after news of the subpoena broke — in 2003 or 2004 — Solomon got together with sources who “had gone cold on me.” When Solomon asked about the silence, they said, “‘We thought you were being monitored,’” in Solomon’s recollection.

“I’ll never know how many stories I didn’t get because the Justice Department scared off my sources,” says Solomon.

On the plus side, the federal intrusion occupies a nice little paragraph in Solomon’s bio:

His reporting has roiled the top levels of government, prompting the FBI to seize his home phone records in 2001 in an effort to unmask his sources and a year later to seize his mail without a warrant to stop him from writing about a confidential FBI lab report he had obtained. The bureau later apologized amidst an outcry from the journalism profession.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.