AP Scandal: Could the Justice Department's Seizure Of AP Phone Records Be Completely Legal?

The revelation that the Justice Department accessed records of calls made by reporters of the Associated Press has gripped the news this week.

As coverage of the story exploded into prominence over a single news day, the optics of the situation looked terrible for the Justice Department. This more so as the AP's own reporting on the issue took an unusually strong tone, one that made you feel anger as you read the wire copy.

The United States likes to believe that it has an especially free press, so the idea that the government may clamp down on the media illegally is upsetting. There is one problem, though: The whole situation may be entirely legal.

I must emphasize that being legally correct and being morally in the right is frequently not the same thing. But it is worth walking through the reasoning of the Justice Department to spy on the AP in order to see where any criticism should be focused.

The relevant reasoning for the Justice Department spying can be found here in Title 28, Volume 2, Section 50.10. It establishes that the Justice Department does have the power to subpoena news organizations and their telephone log records. 

Section C states:

"Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated"

If you review the AP’s complaint to Holder it says that,

"This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records." 

However, since the subpoenas were served to the phone companies instead of the reporters, Section D applies instead (bolding mine),

"Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation."

While direct communications would be required to serve a subpoena to a reporter directly, investigators do not have to inform reporters regarding telephone records if they feel that such a disclosure would harm the investigation. The next section, Section E, states that the attorney general is the one who makes the final call on that decision.

Eric Holder’s admission that he recused himself from the case makes this even more complicated. Without him making the call, the highest the decision would go is Deputy Attorney General James Cole.

The Justice Department claims it was investigating leaks regarding a May 7th, 2012, AP story that disclosed details of how the Central Intelligence Agency located a threatening Al-Qaeda person of interest in Yemen. Republican lawmakers have criticized the DOJ as recently as December of 2012 for not doing enough to clamp down on leaks. Holder appointed two U.S. attorneys to investigate the leaks. One of them, Ronald C. Machen, is mentioned by name the AP’s complaint to Holder.

Section G is full of many other relevant sections. Interestingly,

"When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given […] as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation."

So the Justice Department was not required to immediately inform the AP until the investigation into the leaks was over. According to the response from the Justice Department, the highly classified investigation is still underway.

"’There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period."

It has been claimed that the amount of information reviewed by the Justice Department while investigating the leaks has been excessive, far beyond the amount that the above statue recommends. The Justice Department in its response claims that while the AP says it was two months, the only covered a portion of that two-month period. Again we have no way of evaluating that until further information is released.

Depending on the further information revealed by the Justice Department as to the specific scope and wording of the subpoenas, it is quite possible that the whole affair may be legal. It may be a moral outrage to some people, but the distinction between moral and legal has always been a tricky one in modern day life.