Rosenstein, DOJ exploring ways to more easily spy on journalists
Rosenstein, DOJ exploring ways to more easily spy on
journalists
BY JOHN SOLOMON, OPINION CONTRIBUTOR — 01/14/19 11:00 AM
EST
For months now, the Department of Justice (DOJ) quietly
has been working on a revision to its guidelines governing how, when and why
prosecutors can obtain the records of journalists, particularly in leak cases.
The work has been supervised by Deputy Attorney General
Rod Rosenstein’s office, especially since former Attorney General Jeff Sessions
departed, but is not wrapped up.
The effort has the potential to touch off a First
Amendment debate with a press corps that already has high degrees of distrust
of and disfunction with the Trump administration.
Acting Attorney General Matt Whitaker is aware of the
effort but has not been given a final recommendation. Sources close to Whitaker
say he will await final judgment but, in recent days, has developed
reservations about proceeding with the plan.
“After a lengthy period of turmoil and regular criticism
from President Trump, DOJ has enjoyed a period of calm normalcy that has put
employees’ focus back on their work and not the next tweet. Matt doesn’t want
to disrupt that unless a strong legal case can be made,” a source close to the
acting AG told me.
The current guidelines have their origins back to a time
when Bill Clinton was president and Janet Reno was attorney general, long
before WikiLeaks was a twinkle in Julian Assange’s eye. They were designed to
strike a balance between law enforcement’s investigative interests and the
First Amendment rights of reporters.
In layman’s terms, the current system requires prosecutors
in most cases to exhaust all obvious investigative methods for identifying
leaks before seeking to intrude on a journalist’s free-speech rights.
In addition, the rules generally have required DOJ to
alert news organizations in advance of a possible subpoena, giving both sides a
chance to negotiate before the subpoena — viewed as a nuclear button by most
journalists — gets pushed.
Multiple sources familiar with the ongoing DOJ review
tell me that it has two main goals. The first is to lower the threshold that
prosecutors must meet before requesting subpoenas for journalists’ records; the
second is to eliminate the need to alert a media organization that Justice
intends to issue a subpoena.
With Rosenstein signaling last week that he plans to step
aside in a few weeks, palace intrigue has risen inside Justice about whether
the rule changes will be finished and whether Whitaker might reject them.
If not, a process begun under Sessions could drag into
the tenure of a new attorney general. Trump has nominated William Barr for the
job, which Barr held under President George H.W. Bush three decades earlier.
According to my sources, the arguments for changing the
rules emanate from the stresses that a massive increase in criminal leak
investigations have placed on the DOJ.
Sessions disclosed more than a year ago that there has
been a threefold increase in criminal leak probes, which have ensnared everyone
from fired FBI deputy director Andrew McCabe to a senior Senate staffer who
handled classified documents.
Advocates for the change argue that prosecutors have
spent inordinate time and resources trying to find leakers that could be more
easily detected via the reporting news organization’s subpoenaed records. The
savings in resources could be deployed to other criminal enforcement endeavors,
advocates argue.
They also contend that current rules treat journalists as
a special class whose First Amendment rights are elevated above those of other
Americans, something they don’t believe the Founding Fathers intended. “The
view is all men and woman were created equal and that becoming a journalist
shouldn’t suddenly change that equilibrium,” explained one source.
Journalists, on the other hand, are certain to be alarmed
by any proposed change, just as they were when the Obama administration
escalated its prosecution of leakers and targeted journalists such as James
Rosen for scrutiny because of what they reported.
For a quarter-century or more, the rules have stood even
as the breadth of national security leaks and numbers of professional leakers
such as Julian Assange and Edward Snowden have proliferated.
Rosenstein’s effort, whether successful or not, is certain
to foster a debate.
I, for one, have a special vantage point molded by
personal experience.
As an investigative journalist for The Associated Press
at the start of George W. Bush’s administration, the Justice Department and
then-Deputy Attorney General Robert Mueller — yes, the same one now running the
Russia investigation — subpoenaed my phone records without notifying AP.
Justice then took special steps to delay notifying me for
months, a delay that allowed Mueller’s nomination as FBI director to be
confirmed by the Senate before lawmakers could learn of the intrusion on my
First Amendment-protected reporting.
There was an outcry, but it didn’t stop Justice from
further intrusion. A few months after seizing my phone records without the
normal notification, the DOJ went a step further and seized my personal mail
through the FBI, where Mueller was then the boss.
This time, they didn’t use a subpoena or a warrant. They
used an archaic legal concept known as “border-search authority” to open a package
coming from the Philippines that included a legacy FBI lab report sent to me by
a source.
The report was neither classified nor deemed sensitive.
It simply was embarrassing to the FBI because it showed the bureau was aware of
al Qaeda terrorist plots targeting airliners well before the 9/11 attacks.
After finding the report, the FBI kept the document from
me without seeking a warrant or subpoena — a clear, unequivocal violation of my
Fourth Amendment protections against illegal search and seizure.
When my package didn’t arrive, I became suspicious and
eventually proved that the FBI had confiscated it illegally. When confronted,
the FBI admitted it had engaged in wrongdoing and the bureau, DOJ and AP
lawyers worked together to put rules in place to avoid the type of abuses to
which I’d been subjected.
My case showed that, even with rules in place, the DOJ
and FBI had the means, motive and will to trample on the First Amendment rights
of a free press. Furthermore, I saw the chilling effect that government
intrusion had on my work: Well-intentioned sources were afraid to talk to me or
to meet, for fear they would be caught in a dragnet.
It took months, years, to recover from that harm.
Today’s effort to loosen those rules, I fear, only
increases the risk that professional journalists will face intrusions on their
reporting for convenience rather than necessity.
And that is a legacy that no freedom-loving,
Constitution-abiding deputy attorney general or acting attorney general should
want on their professional resume.
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