U.S. Action in Reporter’s Case Questioned

WASHINGTON — Lawyers and news executives Tuesday questioned whether the Justice Department met rigorous legal requirements before taking the rare step of secretly obtaining the home phone records of an Associated Press reporter.

The Justice Department had a legal obligation to take a number of investigative steps before subpoenaing the phone records of reporter John Solomon, they said.

“We have directed our counsel to make a formal demand that the Justice Department explain the process and reasoning used to secretly obtain a reporter’s telephone records,” said AP Executive Editor Jonathan P. Wolman. “We know of nothing that comes close to justifying such a gross invasion of the editorial process.”

The Reporters Committee for Freedom of the Press and the Investigative Reporters and Editors Inc. wrote letters of protest to Atty. Gen. John Ashcroft.

Quoting unidentified law enforcement officials, AP ran a story May 4 about a federal wiretap in 1996 that captured Sen. Robert Torricelli (D-N.J.) discussing campaign donations. Law enforcement officials can be prosecuted for leaking information obtained under federal wiretaps.

Solomon’s incoming and outgoing telephone records from May 2 to 7 were subpoenaed. The Justice Department received the reporter’s phone records May 14.

“It appears to me that the Justice Department has seriously overreacted in search of a leak,” said Tim J. McGuire, president of the American Society of Newspaper Editors and editor of the Star Tribune in Minneapolis.

The Code of Federal Regulations says all reasonable alternatives should be taken before authorities consider a subpoena of a reporter’s telephone records.

A deputy of former Whitewater independent counsel Kenneth W. Starr, Solomon L. Wisenberg, questioned why the Justice Department moved so quickly.

“The Justice Department is obligated to pursue reasonable alternative investigatory steps,” Wisenberg said in an interview. While Wisenberg raised questions about how Justice handled the matter, he also said that generally he sees no 1st Amendment problem with subpoenaing a reporter’s telephone records.

“It sounds like the Justice Department jumped the gun,” said professor Mary Cheh, who teaches constitutional law and criminal procedure at George Washington University.

“Given that there are a potentially large number of people inside the Justice Department who could be the sources of information for the reporter, the first step under the regulations is to go to them or use other investigative techniques that might be available short of getting a subpoena.”

News executives expressed outrage at the Justice Department’s actions.

The Reporters Committee for Freedom of the Press wrote Ashcroft that “this action signals an ominous hostility to the 1st Amendment rights of reporters at worst, and an indifference to these important rights at best.”

“The failure of the Justice Department to seek these records in an open and aboveboard manner is reprehensible,” said Sandra Mims Rowe, former ASNE president and editor of the Oregonian in Portland.

Solomon found out about the Justice Department’s May actions when he returned from vacation Sunday and opened a notification letter from the office of U.S. Atty. Mary Jo White in New York.

“The really disturbing part to me is that this case seems to be falling into a pattern of Justice Department attitude toward journalists,” said Barbara Cochran, president of the Radio-Television News Directors Assn.

“We have the Leggett case in Texas where we are trying to get a writer out of jail and in the Timothy McVeigh case, the attorney general tried to forestall any type of media interviews.”

Four years ago, when the Justice Department obtained a reporter’s phone records, it acknowledged that it violated its own regulations by not having the attorney general approve the subpoena. The U.S. attorney’s office in New York obtained the grand jury subpoena in 1997 for the phone records of reporter James Sanders, who was investigating the TWA Flight 800 air tragedy.