The Justice Department's investigation into who disclosed information to the Associated Press for a 2012 story about a CIA operation in Yemen could end up exposing more confidential sources for other AP stories, according to former federal prosecutors and media law experts.
When Justice Department officials obtained the personal and business phone records of several AP journalists, they were presumably looking for connections to a limited number of government employees who disclosed information for a specific story or stories. But if in the course of their investigation officials come across new names and phone numbers of people they didn't know had been in touch with the AP, they can investigate them, as well.
"If [investigators] get the records, they get the records. They can go over them" and follow up on any news leads, said Joseph diGenova, a former US attorney for the District of Columbia.
With a valid subpoena, even if the only motivation is to get information on one confidential source, nothing precludes investigators from using the phone records they obtained for another purpose, said Baruch Weiss, a former US attorney in the Southern District of New York. "If they find something that leads them down a different criminal road, they're not limited in their use."
Government investigators could have entrée into the reporting of some of the country's top journalists, many of whom have broken news that relied on confidential sources. "Potentially, they’ve exposed the reporters' entire contact list to investigation," says Chuck Tobin, a lawyer with Holland & Knight, who has represented journalists trying to resist subpoenas. Tobin is not representing the AP in the current matter, though his firm has worked for the news organization in the past.
Gary Pruitt, the president and CEO of the AP, calls the government's search of phone logs a "massive and unprecedented intrusion by the Justice Department . . ." The government obtained two months worth of phone logs that covered 20 lines and at least four AP offices, as well as the personal phones of some journalists.
"This is the widest ranging subpoena, I believe, in history ever issued to a news organization for electronic information," diGenova says. "It is a staggering subpoena. I have no idea what the justification is for it. ... They better have a damn good reason."
Justice Department guidelines require that before officials seek a subpoena they negotiate with a news organization to try to find some arrangement by which the government can obtain the information it needs while still respecting journalists' obligation to report the news, which often requires promise of confidentiality to sources. But in the case of the AP, the government waited until months after the records were obtained to give notice, and there was no chance to mount a legal challenge. The Justice Department told the AP about the subpoena last Friday.
"It seems obvious the administration didn’t want to face a court challenge," says Tobin. "It’s hard to imagine a justification [for the subpoena] if the phone records are not going to go away because they notify the AP."
Justice Department guidelines state that negotiations should continue as long as they "would not pose a substantial threat to the investigation at issue." During a press conference today, attorney general Eric Holder said he was "confident that all the people who are involved in the investigation . . . followed all of the appropriate Justice Department regulations and did things according to DOJ rules." Holder said he had recused himself from the decision on whether to authorize the subpoena—which normally requires the attorney general's sign-off—because the FBI had interviewed him in connection with the leak probe. The decision was delegated to the deputy attorney general, Jim Cole.
In a letter to Pruitt of the AP, Cole wrote, "The subpoenas were limited to a reasonable period of time and did not seek the content of any calls," meaning the spoken words. Justice Department guidelines require that a subpoena may only be issued after investigators have exhausted all other reasonable means of determining who disclosed classified information. Officials have not offered any insights into how they arrived at their decision to obtain the AP's phone records.