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.
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.
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.
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.
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
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.
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.
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.)
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.
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
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?
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.
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.
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.