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Secret Subpoena

August 30, 2001 at 12:00 AM EDT


MARGARET WARNER: The Justice Department has caused a stir with a secret subpoena for a reporter’s phone records. Media correspondent Terence Smith has the story.

TERENCE SMITH: The Associated Press and First Amendment advocates cried foul this week after the Department of Justice revealed that it had secretly approved a subpoena on May 14 for the home telephone records of an AP writer.

The reporter, John Solomon, who heads the AP’s investigative unit in Washington, filed a story May 4 that quoted unnamed law enforcement officials saying that Senator Robert Torricelli had been overheard on an FBI wiretap related to an organized crime investigation. It would be illegal for a law enforcement official to disclose information obtained in a wiretap.

SEN. ROBERT TORRICELLI: Perhaps I’ve earned some enemies in government and in politics.

TERENCE SMITH: Senator Torricelli was not the target of the wiretap operation. But the New Jersey Democrat is under investigation for alleged campaign finance violations. The U.S. Attorney for the Southern District of New York, Democratic appointee Mary Jo White, is heading the high- profile and politically controversial investigation. Some Democrats have assailed the Justice Department for allegedly leaking information damaging to Senator Torricelli.

It was White who sought the subpoena of Solomon’s phone records in an apparent attempt to expose the alleged government leak. She informed Solomon of the action in a letter dated August 20, three months after the fact. Yesterday the AP reported that Robert Mueller, recently confirmed as director of the FBI, approved the subpoena while serving as acting deputy attorney general in May. Attorney General Ashcroft has recused himself from all dealings with the probe because of his Senate service with Torricelli.

A subpoena of a journalist’s notes or records is unusual. There are Justice Department guidelines in place since the Nixon administration that specify that before subpoenaing a journalist’s materials, the government should pursue all reasonable alternative investigative steps. But if a subpoena is sought, the guidelines say, the government should make clear what its needs are in a particular case.

TERENCE SMITH: For more on the subpoena story we turn to Louis Boccardi. He’s the president and CEO of the Associated Press, the world’s largest news organization, and to Victoria Toensing; she is a Washington, D.C., lawyer who was deputy assistant attorney general in the Reagan administration. Welcome to you both. Lou Boccardi, why are a reporter’s phone records important?

LOUIS BOCCARDI: They’re at the core of the reporter’s effort in this case. This is an intrusion by the highest levels of government into the basic news gathering processes, and that’s not a place in which government belongs. There are also the guidelines that you referred to, the regulations, and so far as we can see they weren’t fully followed either.

TERENCE SMITH: You certainly at the AP were not informed until well after the fact.

LOUIS BOCCARDI: Absolutely not.

TERENCE SMITH: Victoria Toensing, what about this, did the Justice Department do the right thing, in your opinion, when it authorized this subpoena?

VICTORIA TOENSING: Look Terry, many times I would agree with Lou but not in this situation. Let’s go back to the basics because we have to look at the story. This doesn’t make sense unless you look at what was revealed in the AP story, and that was that there was a wiretap in place in a Chicago business, a pizzeria. It also disclosed the contents of that wiretap and the fact that Senator Torricelli, who’s not the target of the wiretap but happened to call in over the telephone, it gave the exact words that he used.

And then it attributed the source to law enforcement officials who have heard the tape, or looked at the transcript. Now, those law enforcement officials – while that sounds highfalutin, that could be anything – anyone from the lowest FBI agent all the way up to the Attorney General.

TERENCE SMITH: So what do you conclude?

VICTORIA TOENSING: So on its face there was a violation of a federal law, and that federal law says that no wiretap information may be disclosed under a penalty of a felony –

TERENCE SMITH: So that justifies the subpoena in your opinion?

VICTORIA TOENSING: In this particular situation because of the gravitas, I mean, it’s not just information about an investigation, which happens all the time, unfortunately, but it does; it’s that there are two very specific areas of a criminal investigation that are against the law, and that is: disclosing grand jury information or wiretap information. As someone who’s been there and had to conduct these investigations, I understand what the process is all about.

TERENCE SMITH: Lou Boccardi, what about that, a law – Victoria Toensing says – was violated on the face of it?

LOUIS BOCCARDI: There needs to be some proportionality between what action is taken and what the response is. This story did not break any new ground in the Torricelli matter. It told people some things they didn’t know, but the information in it was known to the government for five years. The spirit of these guidelines that is supposed to attach themselves to this kind of an intrusion into journalism, the spirit of these guidelines is that there is supposed to be both serious matter and exhaustive effort to find the information that the government wants in other ways.

We’ve asked the Justice Department to answer that question for us, and they’ve refused to, but we’d like to know whether they subpoenaed the home phone records of the people within the Department who knew about this wiretap. We’d like to know if they interrogated those people. We’d like to know if they used a polygraph on any of those people. There’s also in these guidelines and regulations notice to the news organizations that there is a pursuit going on of this information that they have.

Now, I’m not going to sit here and pretend — and I don’t think Ms. Toensing would let me – pretend that we’re going to say when we’re asked, oh, sure, here are all the sources who gave us this information; of course not. But we were never notified and the regulations contemplate that. There’s a contemplation then if you’re not notified beforehand, you’ll be told within 45 days, and then if it’s really, really bad and serious and you’re in a really tough spot, you get another 45 days. And we were informed just about on the 90th day of an action they took within a few days of the appearance of this story on the AP wire. It seems very unlikely to us that they followed their regulations.

VICTORIA TOENSING: I want to say something about the law, and then I want to get into the guidelines. But I think it’s important that we understand the basis for this law, because it was written in the aftermath of Watergate and all the atrocities of Watergate — the illegal wiretapping, et cetera. And conservatives and liberals came together and said, “okay, we do understand a law enforcement need to wiretap, but it should be done under great protections.

” If we’re going to give the executive branch that awesome power, then we’d better have limitations: One being that the judicial branch had to approve it, but the second being that no one should disclose it because of the embarrassment to people… Senator Torricelli wasn’t the target of this. But let’s go to the guidelines.

TERENCE SMITH: What about the… Go ahead, Lou, I’m sorry.

LOUIS BOCCARDI: We’re trying to…look here at 30 years of a history of these regulations, these guidelines. We couldn’t put together on the fingers of one hand the parallel incidents, the similar incidents, that have happened across the last few decades. There’s a reason for that. It’s not that there haven’t been stories that revealed things that somebody in the government didn’t want revealed or that some prosecutor, which Ms. Toensing once was, didn’t want revealed. It’s because everybody understands that this is a… This is a nuclear strike into the journalistic process. And you have to be way off the scale before you do it.

VICTORIA TOENSING: It was in no way a strike of a violation of law. You know, Lou, I praise your reporter for his doggedness, but I condemn the person in the government who violated this sacred trust.

TERENCE SMITH: All right, what about Lou’s point that in this case the Justice Department could have come to the Associated Press and at least alerted them or negotiated with them? The guidelines do call for that when it won’t jeopardize the investigation.

VICTORIA TOENSING: Well… They don’t call for it when the reporter is not being subpoenaed. It’s a confusion there. It’s when a reporter is affected, then they say there can be negotiations, but if the case isn’t messed up for negotiations. Now…

LOUIS BOCCARDI: I guarantee the reporter is affected.

VICTORIA TOENSING: Well, but now… But let me just say, you know, what the process was. Neither Lou nor I know what the facts are behind it. We can’t sit here and say it was violated, it wasn’t violated. All we know is that the U.S. Attorney from the southern district of New York– who was a Clinton appointee, so this is not a new Republican administration person– made the request. And when she made that request to the Justice Department, then they had to look at it and assume that she was telling the truth, that all the alternative areas of investigation had been followed.

TERENCE SMITH: Okay. Let’s ask Lou Boccardi to explain what you mean when you say the reporter was affected, which is another way of asking what the broader implications are for this.

LOUIS BOCCARDI: Sure, I’ll be glad to answer, that. Let me just say though, on Victoria’s point about Mary JO White, yes, she was a Clinton appointee, but she’s been held over by a Republican administration, and the final permission for this intrusion into the journalistic process came from an appointee of this administration, who was then the deputy… Acting, I guess, deputy attorney general, and is now the head of the FBI so…

VICTORIA TOENSING: Don’t make this Democrat-Republican.

LOUIS BOCCARDI: No, you introduced it, I didn’t.

VICTORIA TOENSING: No, it isn’t, I’m saying it’s bipartisan. I mean, there’s nothing here that’s Republican or Democrat. It just isn’t.

TERENCE SMITH: Just a few seconds left.

LOUIS BOCCARDI: To your point about the effect of this on journalism. It’s impossible to sit here and talk about the story that we didn’t get today because of this. But this necessarily has an effect on the trust that has to exist between reporters and the people they talk to. We make a sacred vow when we undertake to print something that a news source has told us on a promise of confidentiality, and these phone records are part of that process, even though it didn’t involve asking the reporter.

VICTORIA TOENSING: But Lou, you shouldn’t get a story that violates the law. And if you do, then the government should take all steps to see that that doesn’t happen again so people have confidence in their judicial system.

TERENCE SMITH: Okay, I’m afraid we’re out of time. Thank you both very much.