THE OBAMA administration remains on the defensive over the Justice Department’s decision to seize a wide range of the Associated Press’s phone records without prior notice to the news agency. Media organizations — this one included — denounced the apparent prosecutorial overreach in pursuit of alleged leakers of classified information about a successful CIA anti-terrorism operation. Many Americans who don’t make their living in journalism were justifiably concerned.
President Obama and Attorney General Eric F. Holder stood by their subordinates and did damage control in the form of a White House statement reiterating support for a federal “shield law” that would help journalists protect confidential sources. Mr. Obama “believes strongly that we need to provide the protections to the media that this legislation would do,” spokesman Jay Carney said.
Would the Associated Press actually have enjoyed greater freedom if the bill in question had been law? A bit, yes. The proposal cleared the Senate Judiciary Committee in December 2009 (and then died for political reasons not germane to this case). Before the Justice Department could send phone-service providers a subpoena, the law would have required Justice Department to have given the AP a heads-up so that the news agency could try to negotiate a narrower request — or seek one in federal court.
The Justice Department would have been able to postpone notifying the AP for an unlimited number of 45-day periods, but only if it persuaded a federal judge each time by clear and convincing evidence that notifying the news agency would have posed a “substantial threat to the integrity of its investigation” or that “exigent circumstances exist.” In short, Justice would have been able to do what it did, but it would have been harder, perhaps significantly so.
Alas, that law did not pass, and there’s little prospect that it will anytime soon. So Mr. Obama’s support for it is at best cold comfort and at worst a transparent diversion. The issue remains what Justice did and whether it was consistent with existing legal authority — which consists of the First Amendment and a long-standing department policy designed to prevent violations of it.
That policy clearly says that federal prosecutors will give press organizations prior notice of pending phone-record subpoenas unless doing so would pose a “clear and substantial threat to the integrity of the investigation.” Generally, that has been taken to mean a threat that records would be destroyed, but no such threat has been suggested in this case — and none seems likely to have existed, given the fact that the service providers, not the AP itself, had possession of the records.
In a letter to the AP, Deputy Attorney General James Cole invoked the “substantial threat” exception, but he offered no specifics to back it up. He did note that the department had exhausted alternative means of fact-gathering, as its rules require, and alluded to the serious harm done by the alleged leak. Neither amounts to a reason for what appears to be a pretty stark departure from, if not a violation of, the Justice Department’s own rules.
The Obama administration should stop trying to change the subject and start explaining its actions better — if, indeed, it can.