- Some highlights from this interview
- The number of subpoenas issued to journalists in recent years
- The Department of Justice's guidelines for subpoenaing journalists
Scolinos is director of public affairs for the U.S. Department of Justice, a position held under Attorney General John Ashcroft by Mark Corallo. In that role she is tasked with reviewing all requests to subpoena reporters for their confidential sources. This is an edited transcript of an interview conducted Sept. 15, 2006.
How long have you been in your job at the Justice Department?
I'm at the Justice Department about a year and a half, and in other government agencies for a couple of years outside of that.
How many of these subpoenas have come across your desk?
... There are two types, ... and that is source subpoenas and non-source subpoenas. Source subpoenas deal with media subpoenas that are asking a reporter for confidential source information; there [have] been several recent examples in the news media. ...
The other category of media subpoenas ... are the non-source subpoenas. That can deal with really any type of information that the department is seeking from a member of the media that isn't source information. ... It could also be instances, let's say, where you've got a camera crew who's covering a protest, and at a protest, somebody gets killed. The government clearly, if they're bringing a murder charge or something of that nature, would want the footage of the murder taking place, and there happened to be a camera crew that's there. They would seek immediate subpoena in those kinds of instances. ...
Since I've been at the department, over the last year and a half, very few have come across my desk. ... The source subpoenas come extremely infrequently. ... Over the last 15 years, the department has granted 18 source subpoenas, and I think about five or six of those have been in the last five years. ...
OK. And the non-source subpoenas, how many of them have there been?
There's substantially more non-source subpoenas than source subpoenas, as one would expect. And that number, over the last 15 years, I believe is in maybe the 200-to-300 range.
When you were talking about your 18 subpoenas in 15 years, you're not counting the special prosecutors?
“[T]here's nothing that requires us to treat members of the media any differently than the average person, than a normal citizen, when subpoenaing information.”
Does someone keep track of how many journalists they have subpoenaed? ...
I don't know how many, no. They're not run through the department, so I wouldn't know. ...
[Former Public Affairs Director] Mr. [Mark] Corallo and others we've talked to say there's now a green light in the Justice Department for these subpoenas that hasn't existed before.
Mr. Corallo is no longer at the Justice Department, so I think he's not aware of all the facts surrounding these cases. I can tell you that if you look at just the numbers, the numbers are pretty straightforward. There has been no spike in the numbers of media subpoenas granted under this administration, or even in the last year and a half. Any insinuations that the policy has changed or it's been interpreted differently, ... there's no factual basis for that. In my opinion, that is a perception because some of these media subpoena cases in recent years have been more high-profile. In other words, the press has covered them more extensively perhaps than other media subpoena cases in past years. ...
... Generally speaking, why leak investigations?
The department looks at every case on a case-by-case basis, and some of those cases are going to be leak investigations. Some of them are going to involve other issues. They're ongoing cases, so I am limited [in] what I can say about them. ...
The attorney general has commented on this issue many times, and the department's and the government's first way that we would want to approach these issues is to go to the media, first of all, and say: "We would really prefer that you not run this particular story. It is going to hurt the national security of our country." If that kind of exchange with them doesn't work, the first priority, when you're doing a leak investigation, is to really look at the leakers themselves. These are people who, for the most part, would have security clearances, and when you have a security clearance, it's by law: You break the law if you share that with people who are not authorized to see that information.
So your first priority with the leak investigation is to focus on those folks. When it comes to members of the media, sometimes there will be information that will be helpful that only they would have, that would be helpful to those kinds of investigations. But again, it's a case-by-case basis, and I think the department looks at each one of those very, very carefully.
... There's no legal requirement that the department had to put special guidelines in place when it comes to subpoenaing members of the media; those are self-imposed guidelines.
Several years ago, the department took it upon itself to develop some internal attorney general guidelines when it came to subpoenaing members of the media. ... From the department's viewpoint, the guidelines really were constructed to strike the right balance. That balance is on one hand, the taxpayers expect their government to pursue, and aggressively pursue, criminal wrongdoing using all legal tools at our disposal. On the other side of the equation, you have the First Amendment and the public's right to information. ... It was a recognition that in certain instances, it was going to be appropriate and the right thing for the department to pursue certain types of information from the media, but that those would be looked at on a case-by-case basis using a number of criteria.
That leads me to the process itself. ... For starters, it involves a very intensive review by several different offices within the Justice Department. Let's say you have a prosecutor who's looking at a case out in the field. Before they even would make the request to the Justice Department, they have to do a couple of things first. One thing is they have to have pursued all other means through non-media sources to get that same information. They have to have made attempts to get that information from the media on a voluntary basis. They have to have determined that there is no other way that there's any other information with respect to this case that could give them the same certainty with respect to a person's guilt or innocence that that particular type of information that they're seeking would.
Once they've gotten to a point where they're comfortable that those criteria are met, they would then draft a very detailed memo. They would send that up through their U.S. attorney, so there would have to be a signoff process there. It would then go to main Justice [Department], and then once it gets to the department, several different folks within the department in different offices look at it. That would be [within] the criminal division.
It would then also come to my office, the Public Affairs Office. As you know, one of our rules is to be as the liaison with the media. We talk with the press daily. That's part of our job. And so we certainly would weigh in from that perspective. It then would go to the Office of the Deputy Attorney General, the number two at the Justice Department.
Ultimately, these media subpoenas go to the attorney general himself for final signoff if there's not concurrence through this internal process. In other words, if there's different offices within the Justice Department that don't agree, ... the attorney [general] himself would then make that determination. ...
[You said] that the use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information. ... What does that mean, "exigent circumstances"?
... It's difficult, when you look at the source subpoena cases, to characterize them all one way. They're looked at on a case-by-case basis, and we're looking at a 15-year span here. I will say as a general matter, they tend to be cases that have some importance to them; there's some real significance or there's a circumstance perhaps, as the case is being litigated. There could be an aspect of this with respect to the judge, where they have requested a particular action that would be taken that would perhaps weigh on the department's decision on whether or not to go forward. There can be all sorts of different exigent circumstances that would weigh into that process, that would be an example of one.
So in the BALCO [Bay Area Laboratory Co-Operative steroids] case, the judge requested the investigation?
So that makes it more important?
That would certainly be a factor that the department would look very closely at when considering whether or not to pursue a media subpoena. ...
And you reviewed this case, the BALCO case?
That is correct. That media subpoena was granted during my tenure at the department.
Can we assume you voted in favor?
The internal processes within the department isn't something I would discuss one way or the other. ... I can tell you that we take these decisions very, very seriously. And you look at all angles of it, and there's been media subpoenas, both source and non-source, I should point out, that come across my desk. Typically, I'll read through the prosecution memos once, and if it's a close call, I'll take some time to read it through again, maybe take a day or two to really think about it. ...
But this is a case, as are many, of leaks. This is a leak investigation.
The BALCO case is one of 18 cases that we have granted source subpoenas on. So that is an example of a leak case, sure.
Well, in the BALCO case, for example, which is a leak investigation subpoena, looking for sources of grand jury documents, what's the national security or exigent circumstances that requires subpoenas in that case, in a case where the president of the United States has commended the reporting?
Well, if you notice, the guidelines don't specifically say it has to be a national security case. ... There needs to be exigent circumstances, and that can take a lot of different forms. The BALCO case is an ongoing matter, and so I'm probably not at liberty to really talk extensively about it, except to say that I can assure the viewers that every bit of information is looked at with these cases. ...
Do you take into consideration that the president of the United States, who's your boss, basically, says that this is a great piece of reporting, very important for the American public, for the youth of the United States? ...
As I said, it's a very thorough vetting process within the department. I'm not going to comment on any one particular case.
Mark Corallo doesn't agree. He says that he used to do exactly what you do, and he says that this subpoena in the BALCO case doesn't even come close, to quote him, to meeting your own guidelines for subpoenaing a reporter.
There's going to be different people who have different viewpoints on this. ... I do think there are a lot of very, very good lawyers with a lot of experience who have looked at this issue very closely within the department. There [have] been 18 in the last 15 years. These are not subpoenas that the department issues lightly. ...