Critics Concerned By Federal Subpoenas

By: Todd Shields The Associated Press last week mounted an aggressive campaign against the U.S. Justice Department in reaction to one of the most invasive uses of federal subpoena power against journalists in decades.

"We are outraged," said AP President and CEO Louis D. Boccardi after the Justice Department obtained home telephone records of an AP reporter covering an investigation of Sen. Robert G. Torricelli, D-N.J. Boccardi said the actions "fly in the face of long-standing policy that recognizes what a serious step it is to go after a reporter's phone records."

AP asked for an explanation, but received none, Executive Editor Jonathan P. Wolman told E&P. Justice Department officials, while not responding in detail, said there was no change in policy. Guidelines established in 1973 call for approval by the attorney general before a subpoena can be issued to a journalist.

The groundwork for the controversy was laid May 4, when the wire service moved a story by investigative reporter John Solomon about the federal probe of Torricelli's campaign finances.

Returning from vacation to his northern Virginia home on Aug. 26, Solomon found a mailed letter from the U.S. attorney investigating Torricelli. It said federal authorities using a subpoena on May 14 had obtained records of his home phone calls from May 2 to May 7.

Critics said the incident showed the Bush administration may be indifferent to traditional protections that keep journalists independent from government investigators -- and keep sources talking to journalists without fear of discovery. Wolman said the subpoena "raises questions about the standards the Justice Department is using. The alarm bells go off. It's also possible somebody made a mistake, and they ought to own up to it."

An earlier incident only adds to critics' concern. On July 20, federal authorities in Houston jailed would-be true-crime writer Vanessa Leggett for her refusal to comply with a sweeping subpoena seeking her research into a society slaying. Officials decided Leggett, who hopes to sell a book about the killing, is not covered by the policy concerning subpoenas of journalists. She could remain jailed for as long as 18 months.

Ray Marcano, president of the Society of Professional Journalists, accused the Justice Department of "tremendous disregard for its own policies and the First Amendment [by] threatening and intimidating journalists." Attorney General John Aschcroft recused himself from Solomon's case, citing prior political involvement with Torricelli. According to AP, Ashcroft's removal left the decision to Robert Mueller, who was then Ashcroft's top aide and this week begins service as FBI director.

Ten days elapsed between Solomon's article and the obtaining of his phone records. Critics say that left federal authorities little time to pursue other investigative avenues, as the guidelines suggest. The guidelines call for notification to allow challenges to a subpoena. AP said it received no such notice. Solomon's article quoted unidentified law-enforcement sources, suggesting officials pursued his phone records in a bid to discover which officials were talking to him.

"I just don't understand the urgency. There's absolutely a finite number of people that information could have come from," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press (RCFP), an Arlington, Va.-based organization founded in 1970 to contest Nixon administration subpoenas of reporters.

Since the early 1970s, federal subpoenas of phone records have been relatively rare. The AP cited cases in 1997 and 1991. In addition, the Carter administration earlier had sought phone records of The New York Times' bureau in Atlanta. Subpoenas seeking journalists' testimony have arrived more frequently -- for instance, 115 newspapers reported receiving subpoenas in 1999, according to the RCFP. But only a tenth of subpoenas comes from federal authorities.

In the Leggett case, a three-judge federal appeals panel decided Aug. 17 that she enjoyed no privilege against testifying, regardless of whether she were a journalist. Leggett's subpoena asks for records of interviews with a witness who has since died, as well as other interviews conducted, including those with law enforcement officials. "It's any- and everything," said Leggett's attorney, Michael DeGeurin. The lawyer said he would ask higher courts to weigh First Amendment concerns against the desire for a full investigation, noting, "There should be some balancing before you go after the reporter."