So the Justice Department says that it conducted “over 550 interviews” before it took the measure of secretly subpoenaing the phone records of journalists with the Associated Press. In addition, it reviewed “thousands of documents” and took other steps as well.
Good job, Justice!
Five-hundred and fifty interviews — that’s a lot of tape and transcription work. Now, it’s unclear how many people are involved in those interviews; it’s very remotely possible that the government carried out, say, 110 interviews with five separate individuals. In any case, the number is central to the Justice Department’s compliance with regulations stating, “All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media.”
The sheer volume of Justice Department interviews makes it hard to claim that it didn’t comply with the “alternative sources” standard. Surely we media folk publish conclusions based on far skimpier inquests. The Erik Wemple Blog, for starters, recently raised concerns about Politico’s gender environment based on consultations with “more than a dozen former members of Politico’s editorial staff.” That story itself raised questions about a Politico story alleging that New York Times Executive Editor Jill Abramson was “on the verge” of losing her newsroom, based on interviews with “[m]ore than a dozen current and former members of the editorial staff.”
Not up to Justice Department “550” snuff!
More: A little while back, the Washington Post characterized Mitt Romney’s post-presidential-election life as a big bore, based on “interviews with more than a dozen of Romney’s closest friends and advisers.” And The Post completed an analysis of attendance at Washington Mystics games last summer with the help of “interviews with more than 20 longtime season-ticket holders.” In the aftermath of the Sept. 11, 2001, attacks, The Post did a spot-news wrap-up resting in part on interviews with “more than 100 other survivors and witnesses.”
The New York Times last December published a story on “The Empty Promise of Tax Incentives.” Interview tally? “[M]ore than 100 officials in government and business organizations as well as corporate executives and consultants.”
That’s a little more like it.
The point here is not to orchestrate some media v. government showdown on numerical interview integrity. It’s to demonstrate that the number of interviews necessary to investigate any given topic is a subjective matter. In some cases, interviewing five people is overkill; in others 550 may be too few. Who knows.
What’s scary about the Justice Department’s authority on phone-records subpoenas is that it, and it alone, gets to decide when it has satisfied the “alternative sources” provision. As previously discussed in this space, the New York Times a decade ago fought a Justice Department phone-records subpoena stemming from its reporting on the federal government’s pursuit of Islamic charities with suspected ties to terrorist activity. The government apprised the New York Times of its activities, in contrast to the ongoing AP case. It also declared that it had exhausted “alternative sources” and thus was forced to seek the records.
In a dissent in the federal court case, Judge Robert Sack expressed doubts that the government had really done all that much on the “alternative sources” front:
[W]ith respect to the government’s assertion that it has “pursued all reasonable alternative investigation steps” to source disclosure (guidelines formulation) or that the information it needs is “not obtainable from other available sources”…, the government tells us only that: “The Affirmation of the United States Attorney for the Northern District of Illinois, who was personally involved in conducting, and responsible for supervising, the ongoing grand jury investigation, stated that ‘the government had reasonably exhausted alternative investigative means,’ and that the Attorney General of the United States had authorized the issuance of the challenged subpoenas pursuant to the DOJ Guidelines.”
The government thus takes the position that it is entitled to obtain the Times’ telephone records in order to determine the identity of its reporters’ confidential sources because it has satisfied itself that the applicable standard has been met. I do not think, and I read the majority opinion to reject the proposition, that the executive branch of government has that sort of wholly unsupervised authority to police the limits of its own power under these circumstances.
As discussed here in a previous post, former AP reporter John Solomon had his phone records secretly subpoenaed more than a decade ago. He still has no idea whether the Justice Department exhausted those alternative sources: “There were many other options that the Justice Department had,” said Solomon. “They never proved to us that they had exhausted other methods…. Our lawyers were concerned that they went right after the phone records.” In 2008, the FBI apologized to The Washington Post and the New York Times for having violated internal procedures in securing phone records related to stories that the newspapers had published several years before. In a letter to the post, it confessed that it hadn’t even issued a subpoena to get the phone records.
Is the government’s record on journo phone records in need of further checks? Yes, according to a group of media organizations — including The Washington Post — that wrote a letter to Justice deploring the AP action. They also endorsed a much-talked-about media-shield law that would make the federal judiciary the arbiter of such matters. “The Department’s actions demonstrate that a strong federal shield law is needed to protect reporters and their news-gathering materials in a court of law where the adversarial process ensures a fair weighing of the issues.”
The letter carried the endorsement of about 50 companies representing a whole lot of circulation, pageviews and air time. Does that mean that journalism is united behind the media-shield movement? Oh no way.