Everyone Apoplectic About The Government Seizing AP Phone Records Should At Least Understand Current Law

eric holder

President Obama’s second term has suddenly become embroiled in three scandals that have put the Administration on the defensive: 

  • Questions about the White House’s role in communications about the Benghazi embassy attack, 
  • The IRS’s unfair targeting of conservative groups for tax harassment, and 
  • The Justice Department’s decision to sub-poena phone records from AP reporters in an investigation of a national security leak.

These scandals have eclipsed whatever policy agenda the Administration might otherwise have been pursuing. And they have prompted some to suggest that the Republicans will clean up in the midterm elections and that President Obama’s second term is already effectively over.   The Administration’s political opponents are obviously doing everything they can to make the scandals sound as outrageous as possible and to hold the White House directly responsible for them.   And each of these events certainly deserves to be investigated.   As yet, however, despite the decibel level of the outcry, there does not seem to be clear evidence that the Administration behaved inappropriately.   The Benghazi scandal has now boiled down to the assertion that the White House intentionally misled the public about the source of the attack and then lied about having done so. This assertion appears to rely on internal emails that are being characterised second-hand by people who say they have seen them. At this moment, different news organisations have described the emails differently, so we’ll need to get the actual emails to determine who is right.   The IRS scandal, meanwhile, appears to have involved a handful of bureaucrats at the agency, not the White House. The Department of Justice has already launched a criminal investigation of this behaviour, so we’ll soon get to the bottom of it.   Lastly, the Department of Justice scandal, in which the DOJ obtained phone records of AP reporters via their phone companies, has prompted a colossal media outcry. But the details here are important.    Some of those who are arguing that the DOJ abused its power appear to be suggesting that the DOJ should never be allowed to seek records or testimony from the media. Under current law, however, the DOJ does have the right to obtain these records under certain circumstances: Namely, when it has exhausted other reasonable means of obtaining the desired information (in this case, apparently, clues as to the identity of the person or persons who leaked classified national security information to the Associated Press).   In his press conference yesterday, Attorney General Eric Holder suggested that that is what the DOJ did in this case: The DOJ was investigating the leak of classified national security information and could not determine possible sources of the leak any other way.   What the DOJ did not do, which it is normally required to do, is “negotiate” with the media organisation prior to obtaining such records. Instead, the DOJ sub-poenaed the records from phone companies and obtained them without notifying the AP in advance. Those who have taken a deeper look at this particular case think that it was this failure to notify the AP in advance (and, thus, give the AP an opportunity to try to quash the sub-poena) where the abuse of power might have occurred.   But here, too, under certain circumstances, the DOJ has the right to do this: When the DOJ believes that notifying the media organisation in advance might compromise the integrity of the investigation.   At first glance, it is hard to see why obtaining records of past telephone calls would threaten the integrity of the leak investigation. So it is possible that the DOJ abused its power here, in addition to violating its own guidelines. And this question certainly deserves further investigation.   But the blanket outrage that the DOJ obtained records from a media organisation is likely driven mostly by politics and the media’s feeling that reporter-source communications should be beyond the reach of the law. The Supreme Court, however, has decided that such communications are not always legally privileged, and all reporters and editors (and sources) should understand that.    This scandal should trigger an evaluation of what the DOJ is and isn’t allowed to do. Whether an independent judge should have to approve every DOJ media sub-poena, for example, and whether media organisations should always be notified in advance, are legitimate questions.   But current law does allow the DOJ to obtain media phone records without notifying the media organisation–provided the DOJ has exhausted other reasonable efforts to obtain the desired information and provided the DOJ believes that notifying the media company would compromise the investigation.

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