Subpoena to AP Reporter
by Victoria Toensing

It was not an atomic bomb, only a subpoena for home telephone records the Justice Department dropped on AP reporter John Solomon.  The mushroom cloud you saw was the media howls of “First Amendment violation!” which have eclipsed the other side of the story:  Solomon’s “law enforcement” sources broke the law by disclosing the contents of a federal wiretap and the Department has a duty to investigate that leak vigorously to insure integrity of the investigative process.

Solomon’s May 4 and 5, 2001 AP stories revealed that a five year-old wiretap on a Chicago pizzeria happened to pick up a telephone conversation with a well-known figure, New Jersey Democratic Senator Robert Torricello.  Solomon has been covering the New York Southern District investigation of Torricello for allegedly receiving unreported gifts from a lobbyist.  In disclosing the contents of a wiretap having no relevance to the Senator’s current troubles (he asked for campaign contributions-gasp!), the AP reported that prosecutors twice evaluated the 1996 conversation and found “no reason for further investigation.”  It was a non-story except that the texts contained a felony, not the reporter’s crime but that of the leaker.

The reason Congress made disclosing wiretap contents a felony is grounded in the history of the law granting the federal government the awesome power of listening to private conversations.  Conservatives and liberals agreed on a common goal:  to give the executive branch the power to wiretap but only with certain curbs.  The law requires the executive to make specific findings that the judiciary must approve.  Equally important, the contents of the wire cannot be disclosed, a protection for non-targeted persons who might call a tapped phone number, a la Torricelli, as well as for those who are later charged.

Solomon waved a red flag in the Department’s face by saying the source came from its own:  “law enforcement officials, who have listened to the tape or seen its transcript.”  If the Department ignores this story, the message is “We don’t care about leaks.”  An investigation is needed as much to stop future leaking as to punish the perpetrators.

As Deputy Assistant Attorney General under President Reagan, I conducted such internal investigations.  The first step is to evaluate the material leaked.  A story limited to the fact that so and so is under investigation, an unprofessional and improper revelation but not a crime, is worthy of a “kick butt” meeting of all lawyers and investigators working on the case with admonitions about further leaking.  When there are dozens of personnel involved in a case, as is the situation with most high profile matters, it is almost impossible to find the leaker without going to the recipient, the journalist.  For that reason, non-criminal leaks are rarely pursued.  Never would a subpoena issue to a journalist for a non-criminal leak.

However, any time the disclosure is a felony--wiretap, grand jury or certain classified information--the policy is to conduct a concerted effort to find the lawbreaker.  In the late-1980’s during Ill Wind, a multi-district investigation of defense procurement fraud, there were leaks of grand jury information.  I gathered the over 100 personnel involved, climbed upon the top of a government issue gun metal grey desk and proclaimed, “If any of you is caught speaking to the press, you are fired.”  The leaks stopped.  But the overall problem remains.  If a leaker is never caught, there is no discomfort in leaking.

Unfortunately, most pursuits are thwarted when it is discovered that the only fact upon which to investigate is the number of people who had access to the disclosed material.  At that point, the option is to drop the investigation or attempt to obtain information from the reporter.  The least intrusive method is a subpoena to a third party seeking records.  The most intrusive would be to subpoena the reporter to a grand jury and demand the source, a route I have never seen even contemplated by the Department.

That the Torricello leaks are considered serious there can be no doubt.  In June of this year, two Democratic Senators, Leahy and Feinstein, asked Attorney General John Ashcroft to instruct his subordinates to “ensure that the leaks are stopped” and to “identify those responsible for them.”  Democratic Congressman John Conyers attacked the Attorney General about “the failure of the Department of Justice to investigate the leaks…” admonishing that recusing himself “as the attorney general from the case doesn’t mean that you’ve recused yourself as the attorney general from investigating leaks in a matter as sensitive as this.”

The full text of that hearing indicates that Conyers was more focused on the politics of the leak rather than the felony.  (Politics was also the reason for the Attorney General’s recusal.  Torricello raised money for Ashcroft’s U.S. Senate opponent.) If Torricello were indicted and convicted, the balance of power could change once again in the U.S. Senate.  But that is the point of criminalizing the leaking of wiretap information.  Government power can be abused for political reasons.

So, how to find the leaker where a reporter is involved?  The Supreme Court has held that although the press has a First Amendment right to publish, when there is a need to investigate a crime, the people are entitled to “every man’s evidence.”  The Court refused to create a special privilege for journalists to be exempt from having to turn over evidence of a crime.  Notwithstanding that opinion, the U.S. Justice Department, appropriately, adopted guidelines to limit when a reporter is subpoenaed or “affected” by a subpoena.  (Solomon was not subpoenaed, MCI was, but he was affected by the subpoena because his phone records were being sought.)

Department guidelines require that to subpoena a reporter’s telephone records 1) there must be reasonable grounds to believe a crime was committed and the information sought is essential to a successful investigation, 2) the subpoena be narrowly drawn, 3) all reasonable alternative investigative steps were pursued, and 4) the Attorney General approves.  Notice is to be provided within 90 days.

The Solomon articles, on their face, reflect a crime.  The subpoena was limited to the reporter’s home phone records for a period of only six days, May 2 to May 7.  The U.S. Attorney, Mary Jo White, certified that all alternative steps had been taken.  Acting Deputy Attorney General and now FBI Director, Robert Mueller, approved.  Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter prior to issuance.  If the subpoena is “to the reporter,” negotiation is mandated.  But where, as here, a third party is subpoenaed and the reporter is an “affected” person, the Assistant Attorney General may waive negotiation if it would detriment the investigation.  According to AP, there was no negotiation with Solomon.

The media do not complain that the subpoena is unconstitutional, only that the Department guidelines were not followed.  They have conveniently focused on whether all reasonable steps have been foreclosed, the one requirement that cannot be discussed publicly.  That there were ten days between the articles and the subpoena tells us nothing as time alone is not an indicator of whether sufficient alternative steps have been pursued.  That only the home phone records were subpoenaed does indicate that the Department, having investigated, is concentrating on a specific area.

The only other viable investigative step in leak cases is the polygraph, with the result as uncertain as an accurate list of the personnel who should be tested.  What about the person, unconnected to the investigation, who sneaks a copy from a colleague’s desk?  Is it a better decision to subpoena six days of one reporter’s telephone logs or subject 100 people to a polygraph with possible false results?

The press attempt to hang this on a “Republican administration” fails for lack of evidence.  A Republican administration is vigorously investigating its own agencies for a leak about a Democratic Senator that could be advantageous to the GOP.  Congressional Democrats have been vociferous in demanding these leaks be stopped and the perpetrators identified.  The U.S. Attorney who requested the subpoena and presented the factual basis that all alternative investigative steps had been taken is an eight-year Clinton appointee and holdover in that office.  Mr. Mueller, who approved the Subpoena, was backed strongly for FBI top gun by Democratic Senator Barbara Boxer after successfully asking Clinton to appoint him U.S. Attorney for San Francisco.  The person deciding there should be no negotiation was career Department official Jack Keeney, who acted in lieu of Assistant Attorney General Michael Chertoff because he, too, is recused from the Torricelli case.  The last subpoena for a reporter’s records occurred in 1997 under the Clinton administration.  For some reason the press was not as vocal about its distress.

The subpoena to Solomon is not a case of a new administration that does not understand the rules, as journalists have also tried to imply.  It is a case where Solomon’s interest in not having six days of phone records subpoenaed is trumped by the need to prosecute a person or persons who revealed statutorily protected information in a story that, except for the leak, exposed no corruption, no abuse of power, no government wrongdoing. 

I commend Solomon for his doggedness in getting a story.  I condemn the law enforcement official who violated the law.  The leak of wiretap contents must be investigated fully for the integrity of the process. If that means subpoenaing a reporter’s phone records, so be it.





©2005 diGenova & Toensing, LLP
All rights reserved