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Opinion John Solomon claims the First Amendment protects him as a journalist

John Solomon in his office at the Washington Times on May 23, 2008. (Gerald Martineau/The Washington Post)
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Six years ago, we learned that the Obama Justice Department had seized records from more than 20 phone lines belonging to the Associated Press. Journalists hopped on the nearest public platform to express their outrage. This was a “serious interference with A.P.’s constitutional rights to gather and report the news,” argued the wire service in a statement.

Fast forward to early December, when we learned that phone records of John Solomon, a veteran Beltway journalist who departed the Hill in the fall, had surfaced in the House’s “Trump-Ukraine Impeachment Report.” In a Wall Street Journal op-ed published Monday evening, Solomon writes that House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) “intruded on my First Amendment rights.” He further compares the incident to the early 2000s when he himself worked for the AP, and the Justice Department “obtained my home phone records and the FBI illegally seized my mail without a warrant in an effort to unmask my sources on federal corruption and stop publication of a story about the government’s counterterrorism failures before 9/11.”

Do we have an apples-to-apples situation here? Well, there’s a common thread involving telephones. But that’s about it.

In recent months, Solomon has become a high-profile journalist for all the wrong reasons. Witness after witness in the House impeachment inquiry testified to the impact of Solomon’s reporting in the Hill. It was Solomon, after all, who conducted an interview with a Ukrainian official published on March 20 that blasted then-U.S. Ambassador Marie Yovanovitch. The allegations were baseless, though that problem didn’t prevent them from influencing Yovanovitch’s recall from the post in May.

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As it turned out, Solomon was working closely with Rudy Giuliani, the personal attorney for President Trump who was trying to turn Ukraine into a bonanza for Trump’s 2020 reelection campaign. Among the ideas promoted by Giuliani was that Ukraine committed the real intervention in the 2016 presidential campaign, not Russia, and that Joe Biden and his son Hunter had corrupt dealings in Ukraine. According to ProPublica, Solomon worked closely with a Giuliani associate, Lev Parnas, in pursuing the “stories” that Giuliani and his associates sought to disseminate. And the New York Times reported that Giuliani courted Solomon on Ukraine: “I really turned my stuff over to John Solomon. … I had no other choice,” said Giuliani.

In light of those reports, certain facts disclosed in the House impeachment report didn’t come off as revelations. “Phone records show that in the 48 hours before publication of [March 20] The Hill opinion piece, Mr. Parnas spoke with Mr. Solomon at least six times,” it says.

The report reveals the dates, times and durations of the calls, though not the content of the communications. In his op-ed, Solomon argued that the constitutional intrusion related to his inability to “contact figures like Mr. Giuliani and the Ukrainian-American businessman Lev Parnas without fear of having the dates, times and length of private conversation disclosed to the public.” More from Solomon:

Likewise, Mr. Schiff published call records between Mr. Giuliani and me and suggested they involved my Ukraine stories. Many contacts I had with Mr. Giuliani involved interviews on the Mueller report and its aftermath or efforts to invite the president’s lawyer on the Hill’s TV show, which I supervised.
Mr. Schiff’s team has tried to minimize the conduct because he never subpoenaed my phone records directly but extracted them from others’ call records. That defense is laughable. Once a journalist and his calls are made public through the powers of the surveillance state, there is an instant chilling effect on press freedom.

As evidence of the damage done by the House Intelligence committee, Solomon writes that folks who formerly spoke with him “openly” are now requesting that they talk via encrypted apps.

Before criticizing Solomon’s op-ed, a caveat: It is the job of journalists to talk and meet with slimeballs in all industries. They are the ones closest to wrongdoing and often the most willing to backstab other wrongdoers. So there’ll be no condemnation of Solomon for chatting with Parnas, who is under federal indictment for campaign-finance violations, or Giuliani, easily the second-most slippery man in American public life these days.

Solomon’s work is another matter, however. In a series of “opinion” articles for the Hill, he essentially created the Ukraine “controversy.” Without his input, Yovanovitch might have been able to complete her ambassadorial term, and Giuliani would have had to find someone else to feed his nonsense.

There’s a key difference between the impeachment subpoenas and the AP seizure of 2013/Solomon’s own experience in the early 2000s: The goal of the impeachment inquiry wasn’t to sniff out Solomon’s Ukraine sources; on the contrary, the records appear to come from the phones of Giuliani and Parnas, and Solomon happened to get vacuumed up in the process.

“John is just off-base in his attack here,” says attorney David Schulz, co-director of the Media Freedom and Information Access Clinic at the Yale Law School. He defended the AP in the 2013 phone-records case, as well as Solomon’s 2000s case. “I would defend to nth degree the importance of protecting journalists and their sources,” continues Schulz. However, those other cases involved situations where the government was going after sources. “That’s where the First Amendment comes in,” he says.

Such a dynamic isn’t in play here. The committee has powerful reasons for seeking the phone records of Giuliani and Parnas, says Schulz: It’s investigating allegations that Giuliani & Co. were engaging in a criminal effort to extort a foreign government.

Now: That doesn’t mean that the committee must disclose the communications involving Solomon. That’s a judgment call, and a touchy one. “If the committee gratuitously included embarrassing or scandalous or titillating information about John Solomon’s role in here simply because it wanted to punish him or chill others from talking to him in future, that would be wrong,” says Schulz. All such constitutional concerns fade, however, if inclusion of the Solomon call data is important to understanding how the “wrongdoing is carried out,” according to Schulz.

Considering the ubiquity of Solomon in the impeachment proceedings and report, the case for his inclusion is clear. George Kent, a top State Department official, provided this insight on how Solomon’s writings advanced the wrongdoing: “It was, if not entirely made up in full cloth, it was primarily non-truths and non sequiturs,” Kent said of Solomon’s March 20 piece. This passage from the impeachment report speaks to Solomon’s role: “In April, Mr. Solomon continued to publish opinion pieces about Ambassador Yovanovitch and other conspiracy theories being pursued by Mr. Giuliani on behalf of President Trump,” it reads. “Mr. Solomon was not working alone.” (Solomon has fiercely contested the criticism from impeachment witnesses and the House’s report, saying that he reported the facts and relied on documents and on-the-record interviews. The Hill is reviewing his work in light of the impeachment testimony.)

It’s fitting that Solomon’s phone data got swept up in the same effort that surfaced Giuliani’s activity. In this instance, after all, both fellows appear engaged in the very same professional activity — that of advancing President Trump’s political interests.

“Give me a break. Donald Trump is one of the most — perhaps the most — grievous threats to freedom of press we have seen in this country in history,” says First Amendment attorney Theodore J. Boutrous of Gibson, Dunn & Crutcher LLP. “Mr. Solomon seems oblivious to that, and instead he is manufacturing issues about Congress. Chairman Schiff apparently obtained in a lawful manner phone records of non-journalists who happened to talk to Mr. Solomon. While it is very important to protect journalists from intrusions on their work, that doesn’t seem to be what happened here, let alone pose a danger to freedom of the press.”

With his barrage of complaints against the media, Rep. Devin Nunes (R-Calif.) is threatening to overturn the governing culture of a landmark Supreme Court case. (Video: The Washington Post, Photo: Andrew Harris / Reuters/The Washington Post)

Read more from Erik Wemple:

John Solomon is now doing press for congressional Republicans

Impeachment report hammers the Hill and John Solomon

The Hill is reviewing the work of former opinion contributor John Solomon

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Did Devin Nunes just file a halfway-decent defamation suit?