It was not an atomic bomb the Justice Department dropped on Associated Press reporter John Solomon, only a subpoena for six days of home telephone records. But the mushroom cloud that followed -- primarily media howls of "First Amendment violation!" -- has eclipsed the other side of the story: Solomon's "law enforcement officials" (his description) violated the law when they told him the contents of a federal wiretap. The department had a duty to pursue that leak vigorously to ensure the integrity of its investigative process.
Solomon's May 4 story revealed that a wiretap on a Chicago pizzeria five years ago happened to pick up a telephone conversation with a well-known public figure, New Jersey Democratic Sen. Robert Torricelli. Solomon, who has been covering a federal investigation of Torricelli for allegedly receiving undisclosed gifts from a lobbyist, reported that the senator could be heard discussing his need for -- gasp! -- campaign contributions. Prosecutors twice evaluated the 1996 conversation and found "no reason for further investigation," according to Solomon's report. It's ironic that the leakers' revelation was neither earth-shattering nor relevant to Torricelli's present troubles. But that doesn't alter the underlying problem: the leak was a crime, one that Congress considers important enough to classify as a felony.
In granting the federal government the awesome power of listening to private conversations, Congress established specific rules to prevent abuses. The law requires prosecutors to seek approval from a court before commencing a wiretap and, to protect non-targeted persons who might call a tapped phone number (a la Torricelli), the results of a wiretap cannot be disclosed to any unauthorized person.
Solomon waved a red flag in the department's face by describing his sources as "law enforcement officials, who have listened to the tape or seen its transcript." If the department were to ignore this story, it might as well hang out a sign that says, "We don't care about leaks." An investigation was necessary as much to stop future leakers as to catch and punish the perpetrators.
When I was at Justice during the Reagan administration, I conducted such internal investigations. So I know the procedures. The first step is to evaluate the material leaked. A disclosure that so-and-so is under investigation, while unprofessional and improper, is not a crime. To identify a leaker in high-profile cases, which routinely involve dozens of personnel, requires hours and hours of valuable time. In most cases, it is an impossible task without going to the journalist. For that reason, non-criminal leaks are rarely pursued and never would the department subpoena a journalist's records for a non-criminal leak.
Any time the disclosure is a felony -- when it involves wiretap, grand jury or otherwise protected information -- the policy is to conduct a concerted effort to find the lawbreaker. In the late 1980s, during a multi-district investigation of defense procurement fraud known as "Ill Wind," there were leaks of grand jury information. I gathered the more than 100 personnel involved, climbed on a government-issue gunmetal gray desk top and issued a warning that shouldn't have been necessary: "If any of you is caught speaking to the press, you are fired." The leaks stopped, but the damage remained. If a leaker is never caught -- and has no fear of being caught -- there is no discomfort in leaking.
Unfortunately, most leak pursuits are thwarted because there are too few clues to investigate and too many people with access to the disclosed material. At that point, the option is to drop the investigation or attempt to obtain information from the reporter. The least intrusive method is a subpoena to a third party seeking records -- in Solomon's case, the subpoena went to MCI WorldCom, not to Solomon himself. The most intrusive would be to subpoena the reporter to a grand jury and demand that he or she reveal the source, a route I have never seen contemplated by the department in a leak case.
There's no doubt that the Torricelli leaks -- there have been others in addition to the wiretap disclosure -- are considered serious. In June, before the subpoena became public, two Democrats, Sens. Patrick Leahy of Vermont and Dianne Feinstein of California, asked Attorney General John Ashcroft to instruct his subordinates to "ensure that the leaks are stopped" and to "identify those responsible for them." Another Democrat, Rep. John Conyers Jr. of Michigan, also assailed Ashcroft in June on "The NewsHour With Jim Lehrer" for "the failure of the Department of Justice to investigate the leaks."
Previously, at a House hearing, Conyers had berated Ashcroft for the leaks, focusing more on the politics of the leak than on the felony. Conyers suggested the department was using the Torricelli inquiry as a way of reclaiming control of the Senate. (Politics was also the reason for Ashcroft's decision to recuse himself from the Torricelli probe. Torricelli raised money last year for Ashcroft's U.S. Senate opponent.) But that is precisely the point of criminalizing the leaking of wiretap information: Government power can be abused for political reasons.
So, how to find the leaker when a reporter is involved? The Supreme Court has held that when there is a need to investigate a crime, the people are entitled to "every man's evidence." The court has consistently declined to exempt journalists from having to turn over evidence of a crime. Notwithstanding that opinion, the department, appropriately, adopted guidelines to limit when a reporter is subpoenaed or "affected" by a subpoena. By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press's constitutional role.
The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter's telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.
Were those conditions met in Solomon's case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena -- Ashcroft having recused himself. Solomon received his timely notice.
There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued -- incorrectly -- that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly "to the reporter." The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.
The only other viable investigative avenue in leak cases would be to polygraph everyone with access to the confidential information. But polygraph results are as uncertain as drawing up an accurate list of whom to test. What about the person, unconnected to the investigation, who sneaks a transcript from a colleague's desk? Is it a better decision to subpoena six days of one reporter's telephone logs or subject 100 people to a polygraph with possible false results?
The attempt by some in the media to hang this on a "Republican administration" fails for lack of evidence. This is a bipartisan pursuit: White, who requested the subpoena, is an eight-year Clinton appointee and holdover as U.S. attorney for New York's southern district. Mueller, who approved the subpoena, served as U.S. attorney for San Francisco during the Clinton administration -- at the recommendation of California Democratic Sen. Barbara Boxer, who also strongly supported him as the Bush administration's choice for FBI director. The person deciding there should be no negotiation was career department official John Keeney. Democratic lawmakers have been vociferous in demanding these leaks be stopped and the perpetrators identified. If the Bush administration wanted to gain political advantage, why not just let the leaks continue?
There were eight subpoenas for reporters' phone records during the Clinton administration. For some reason the press was not as vocal then about its distress.
The subpoena to Solomon is not a case of a new administration that does not understand the rules, as journalists also have implied. It is a case where Solomon's interest in not having six days of phone records subpoenaed is trumped by the need to find the person or persons who broke the law -- especially for a story that, except for the leak itself, exposed no abuse of power, no government wrongdoing.
I commend Solomon for his doggedness in getting a story. I condemn the law enforcement officials who disclosed the contents of the wiretap. The leak must be investigated fully if the law has any meaning. If that requires subpoenaing a reporter's phone records, so be it.