Without any official justification, such an indiscriminate intrusion into one of the most important American news organizations appears to be a deliberate attempt to intimidate journalists and their sources — or at least indicates a willingness to tolerate such intimidation as collateral damage of an investigation.
“I really don’t know what their motive is,” Pruitt said on “Face the Nation.” But, he added, “I know what the message being sent is: If you talk to the press, we’re going to go after you.”
By secretly serving the subpoena directly on phone companies without notifying the AP, the Justice Department avoided negotiations with the news agency or a court challenge over its scope. This is permitted as an exception to the Justice guidelines if prior notification and negotiations would “pose a substantial threat to the integrity of the investigation.” But there has been no explanation of what threat might have been posed in this case, when the preservation of the records by the phone companies was never in question and the news leak under investigation had occurred long before.
I can remember only one similar incident during my 17 years as executive editor of The Post. In 2008, FBI Director Robert S. Mueller formally apologized to me and the executive editor of the New York Times for the secret seizure four years earlier of the phone records of our foreign correspondents working in Jakarta, Indonesia — because the Justice guidelines had been violated and no subpoena had been issued. But I recall a number of instances in which other federal investigative requests were successfully negotiated in ways that fully protected our news-gathering independence in accordance with the guidelines.
In Thursday’s speech, Obama said he has raised the impact of federal leaks investigations on accountability journalism with Holder. The president said the attorney general “agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and he’ll convene a group of media organizations to hear their concerns as part of that review.”
The president also called on Congress to revive and pass a federal “shield law” — similar to those in 40 states and the District — that would increase defenses, including judicial appeals, for journalists who face legal attempts to force them to reveal confidential sources and reporting contacts. It is unclear whether the legislation, which stalled in the last Congress after negotiations with the news media, would have prevented the Justice Department’s sneak attack against the AP. Nevertheless, its passage would provide significant new protection for accountability journalism and government whistleblowing. White House support of the legislation had been lukewarm, so the timing and ardor of Obama’s new embrace remains suspect, depending on the administration’s future actions.
I can only speculate about the politics at play here. If 2012 had not been a presidential election year, would Republicans have characterized news reports and Obama administration announcements about successful counterterrorism operations as “leaks” endangering national security? Would the administration have decided that it was necessary to react by aggressively investigating leaks for which there is not yet public evidence that national security was seriously compromised? If not for the 2014 congressional elections, would Republicans now be hypocritically condemning the Justice Department’s seizure of phone records in the AP case?