Feds explain why they grabbed AP records without negotiating first

The Department of Justice's secret seizure of Associated Press phone records was a topic of two well-covered press conferences Tuesday, and it will certainly be discussed again at Attorney General Eric Holder's scheduled appearance before the House Judiciary Committee Wednesday.

DOJ's legal justification for the move requires further scrutiny. While the government hasn't said what it's investigating, it has addressed some of the technical aspects of its remarkable incursion into a news organizations' records.

• Justice Department policy "provides that we should issue subpoenas for phone records associated with media organizations only in certain circumstances," Deputy Attorney General James M. Cole wrote in a letter to AP CEO Gary Pruitt Tuesday.

"We are required to negotiate with the media organization in advance of issuing the subpoenas unless doing so would pose a substantial threat to the integrity of the investigation." Justice, he wrote, "undertook a comprehensive investigation, including, among other investigative steps, conducting over 550 interviews and reviewing tens of thousands of documents, before seeking the toll records at issue."

• First Amendment lawyer George Freeman tells Erik Wemple about a time the Justice Department followed its policy requiring negotiation with a media organization. It notified The New York Times it intended to seek phone records from reporters Philip Shenon and Judith Miller.

By apprising the New York Times of the intent to subpoena phone records, the government — specifically, U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald — gave the newspaper the tools it needed to defend itself. In a September 2004 filing, the New York Times sought “declaratory judgment” in a New York court that the records were protected by the First Amendment. It prevailed.

"Perhaps the Justice Department learned something from that experience," Wemple writes.

• National Law Journal reporters Zoe Tillman and Mike Scarcella speak with several lawyers regarding these points. Justice's claim that it bypassed negotiations to preserve the integrity of the investigation "really doesn't make sense when you're investigating leaks that took place in the past," Charles Tobin, a lawyer who has represented AP, though not in this case, told them.

Storied defense attorney Abbe Lowell tells them the government's move reflected increasing confidence in its ability to collect information with impunity: "As law enforcement takes one step without being restrained, it gets emboldened to then expand to the next step and that's what this reflects." (Here's a guide to what information authorities can collect without a warrant.)

• Meanwhile, at least one fan of the government's action emerged yesterday: Democratic strategist Hilary Rosen, who attempted to launch a hashtag in support of presidential spokesperson Jay Carney.


Also, Media Matters' Message Matters project offers talking points for those defending the government: "If the press compromised active counter-terror operations for a story that only tipped off the terrorists, that sounds like it should be investigated" goes one suggestion.

Previously: Why the Justice Department ‘better have a damned good explanation’ for seizing AP phone records | What journalists need to know about the Justice Department’s seizure of AP phone records | Justice Department secretly seizes AP phone records

  • Andrew Beaujon

    Andrew Beaujon reported on the media for Poynter from 2012 to 2015. He was previously arts editor at TBD.com and managing editor of Washington City Paper. He's the author of the 2006 book "Body Piercing Saved My Life," about Christian rock and evangelical Christian culture.


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