Subpoenas might reveal alarming trend

From the Fall 2001 issue of The News Media & The Law, page 30.

By Monica Dias

Does the subpoena of an Associated Press reporter’s long-distance telephone records and the jailing of a Texas author signal a shift in policy in how the Department of Justice handles subpoenas of the press?

At a time when the agency, led by Attorney General John Ashcroft, is seeking expanded investigatory powers to fight terrorism, some observers worry that the Justice Department is abusing power it already has.

“If they want more power with this antiterrorism legislation going through the Congress, they can’t be seen as abusing power they already have and not following their own procedures,” said Sen. Charles E. Grassley (R-Iowa), who has demanded answers from Ashcroft regarding a recent subpoena of an Associated Press reporter’s phone records.

For nearly 30 years, the Justice Department has operated under subpoena guidelines designed to balance the public’s interest in a free flow of information with the public’s interest in effective law enforcement. Before issuing a subpoena to a reporter, federal prosecutors must try to obtain the information from another source. If they can’t get the information that way, they must first negotiate with the reporter, unless those negotiations would pose a substantial threat to the investigation.

When seeking phone records, prosecutors must have reasonable grounds to believe a crime has been committed and that the information is essential to the investigation. They must notify the reporter in advance, or within 90 days after receiving the phone records. Under the guidelines, subpoenas aren’t issued to reporters or for their phone records without express approval from the attorney general.

Those guidelines weren’t followed before federal prosecutors subpoenaed the research of Vanessa Leggett, the free-lance Houston writer who was sent to jail this summer when she wouldn’t comply with a subpoena. The department didn’t consider her a reporter, so prosecutors didn’t apply the guidelines to her, agency spokeswoman Mindy Tucker said.

The guidelines also apparently weren’t followed when the Justice Department subpoenaed the phone records of Associated Press reporter John Solomon. There were no negotiations with him. Solomon learned of the subpoena in August, when he returned home from a vacation and was greeted by a letter from a U.S. attorney informing him that his long-distance records were subpoenaed more than 90 days earlier.

Solomon was one of five reporters subpoenaed by the Justice Department during President Bush’s first eight months in office, according to a tally by the department that apparently does not include Leggett. While it may be too early to know whether a fundamental policy change has occurred at the agency, editorial writers and First Amendment advocates are alarmed.

“Free-press advocates worry that this haste to subpoena reflects an emerging pattern of contempt for journalists’ role. If that’s indeed the case, Americans have reason to worry,” the Los Angeles Times editorialized on Aug. 30.

Paul McMasters, First Amendment ombudsman for the Freedom Forum, said the Leggett case, in particular, should “send a chill down the spine of any journalist” because it could frighten sensitive sources.

“When government officials are pawing over the private telephone records of a journalist, or there is the threat that that might be happening, it certainly would give pause to anybody who wanted to discuss anything with a reporter,” McMasters said.

The Solomon subpoena

The Justice Department subpoenaed Solomon’s phone records to discover his confidential source for information about the investigation of a U.S. senator.

For a May 4 article, Solomon quoted unidentified law enforcement officials as saying that a government wiretap had recorded conversations between Sen. Robert Torricelli (D-N.J.) and relatives of a prominent Chicago crime figure. They were discussing donations for Torricelli’s campaign, the story said.

Justice officials were investigating because law enforcement officials can be prosecuted for disclosing the contents of a wiretap.

Solomon was notified in a letter dated Aug. 20 that the U.S. attorney’s office in Manhattan had obtained his phone records for incoming and outgoing calls from May 2 to May 7, the time frame surrounding Solomon’s article.

Because Ashcroft had recused himself from matters involving the Torricelli investigation, then-Acting Deputy Attorney General Robert Mueller approved the subpoena. Mueller later became FBI director.

Calling the subpoena “an extraordinary strike against the press,” Associated Press President Louis D. Boccardi asked Ashcroft for a public accounting of the subpoena.

When the Associated Press reported that the Justice Department’s guidelines had “virtually eliminated federal subpoenas of reporters’ phone records,” department officials countered with a cryptic chart showing that news media subpoenas are not rare.

In fact, the agency noted that it approved 73 subpoenas for reporters’ documents, testimony or long-distance phone records over the last 10 years. Of those subpoenas, 13 were approved for reporters’ long-distance phone records, according to the Justice Department’s chart.

Grassley, who on Sept. 4 wrote Ashcroft demanding details of the subpoena of Solomon’s phone records, wrote another letter to Ashcroft two days later complaining that the “sparse list” of news media subpoenas “raises many more questions than it answers.”

Grassley asked for details of all the subpoenas, including the reporters involved, the negotiations that were held with the reporters and when the reporters were notified of the subpoena.

More than a month later, Grassley was still waiting for answers.

The senator said he’d be satisfied that no policy shift occurred under Ashcroft, if the Justice Department can show that it followed its regulations for news media subpoenas. But he believes federal prosecutors failed to follow the proper procedure.

“It’s quite obvious that they didn’t negotiate with the news organization or Mr. Solomon,” Grassley said. “I think it comes because there’s an over-aggressive attitude of stopping leaks in the department. I don’t find any fault with things that should not be leaked not being leaked, but if there is a leak, you ought to change what’s wrong in the department and do it internally, as opposed to going outside to do it.”

Susan Dryden, a Justice Department spokeswoman, told The New York Times that there has been no change in policy on issuing subpoenas to the news media. The department has said little else.

Victoria Toensing, a former deputy assistant attorney general in the Reagan administration and now a Washington lawyer, derides suggestions that the Solomon subpoena was the product of a new Republican administration.

In an opinion piece published Sept. 9 in The Washington Post, she noted that two of the key players in the Solomon subpoena were Clinton holdovers: Mary Jo White, the U.S. attorney who requested the subpoena of Solomon’s phone records, was a Clinton appointee, and Mueller was a U.S. attorney for San Francisco during the Clinton administration.

Toensing defends the subpoena of Solomon’s records as abiding by the department’s rules.

“Anybody who has any sophistication, who has been in this business for more than two weeks, knows that when there’s a leak in the press the only way to really pursue it is to get information from the reporter,” Toensing told the Reporters Committee. “And for that reason, most leaks are never investigated, because they don’t contain per se criminal conduct. This one contains per se criminal conduct.”

Justice under Reno

The Justice Department’s 10-year tally of news media subpoenas shows the agency approved 45 subpoenas under former Attorney General Janet Reno, who served from 1993 to 2000. Of those subpoenas, eight were for reporters’ long-distance records, but the Justice Department has not said how many of those were approved without negotiation or without advance notice to the reporter.

Former public affairs directors under Reno either don’t remember details or won’t discuss specifics about news media subpoenas approved during her tenure as attorney general. But they said Reno, whose parents were newspaper reporters, fostered an atmosphere that supported the First Amendment.

“I thought the press should be subpoenaed as little as possible,” said Reno, now a Democratic candidate for governor in Florida.

When asked how much weight the Justice Department should give to the First Amendment in deciding whether to subpoena a reporter, Reno simply responded, “Lots.”

The policy under Reno and Ashcroft allows the director of the department’s Office of Public Affairs to recommend whether the attorney general should approve a subpoena for a reporter’s notes, testimony or phone records.

Carl Stern, a former NBC law correspondent who served as the Justice Department’s public affairs director from April 1993 to July 1996, remembers recommending approval of one subpoena request for a reporter’s long-distance phone records. The case involved a leak from a law enforcement office that threatened an investigation into organized crime. Stern suggested that the department ask a judge to appoint a third party to review the phone records, instead of the records going directly to the Justice Department.

“That way, if there was not anything there, the claim couldn’t be made by the reporter that the government was rummaging through a reporter’s files,” Stern said. “I felt that was a way to minimize the intrusion.”

Unlike Solomon’s case, the department decided not to authorize a subpoena, so there never was an issue of negotiating with or notifying the reporter, Stern said.

Stern, who covered the Supreme Court and the Justice Department for 26 years for NBC News, believed he should bring a journalistic view to the Justice Department.

“I felt that our role was to try to minimize the intrusion and to see what could be done, if in fact the subpoena was warranted,” said Stern, who teaches media law in the journalism department at George Washington University in Washington, D.C.

That journalistic standard was passed on to Stern’s successors, Bert Brandenburg and Myron Marlin, who had not worked as reporters before becoming public affairs directors at the Justice Department.

“We were trained by Carl Stern, a lifelong journalist, who made it clear to us that there are certain needs that the press had, and, while it wasn’t always appropriate or lawful to accommodate every one of those needs, at least appreciate what those needs are,” Marlin said.

While it’s not necessary that the Justice Department’s public affairs director have a background in journalism, “they’re going to need an ethos that the journalists’ viewpoint is going to be fully aired,” Brandenburg said. “People who come to these offices need to absorb a culture that puts journalists’ interests up high.”

The Justice Department’s current public affairs director, Mindy Tucker, has a lengthy background as a government spokeswoman but no journalism experience. She served as press secretary to the Bush-Cheney campaign in Austin, Texas, and was press secretary during Ashcroft’s Senate confirmation hearings. She also has worked as a spokeswoman for the National Republican Congressional Committee.

Tucker recommended approval of the subpoena for Solomon’s phone records, the AP reported. Tucker won’t discuss the subpoena, but she indicated that it shouldn’t make any difference whether the public affairs director has a journalism background. Every public affairs director bases a subpoena recommendation on whether the subpoena meets the department’s guidelines, she said. Although public affairs directors change with new administrations, the guidelines don’t, she said.

“I think it’s important to represent the rights of the reporter that’s the subject of the subpoena, but to also make sure that law enforcement is able to do its job within the regulations that are set out for them,” she said.

The beat reporters’ view

Reporters who cover the Justice Department say their day-to-day dealings with Ashcroft’s staff aren’t much different from working with Reno’s aides, except that Ashcroft’s staff takes critical stories almost personally.

“They are watching very closely what we write” for errors, which isn’t necessarily unwelcome, said Kevin Johnson, who covers the Justice Department for USA Today.

Friction between Ashcroft’s press aides and reporters is more likely to arise because of the aides’ inexperience, not because of any threat of subpoenas.

Beverley Lumpkin, Justice Department reporter for ABC News, said it has been frustrating for reporters to work with a new press office that has “a steep learning curve” about federal law enforcement. That has changed some since the Sept. 11 attacks on the World Trade Center and the Pentagon, with Tucker doing a good job of getting information to the press, Lumpkin said.

Nevertheless, reporters should be concerned about the Leggett and Solomon subpoenas, said Ron Ostrow, who covered the Justice Department for the Los Angeles Times from 1966 to 1998 and still freelances for the paper. The Justice Department’s subpoenas of reporters could chill coverage of the war against terrorism, he said.

“People will be less likely to talk (to reporters). They’ve shown they’ll go after reporters’ home telephone records without much hesitation,” Ostrow said. “Reporters are nervous about it. And Department of Justice employees who might have talked to you before are certainly not as willing, especially in the wake of Sept. 11.”