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Bloomberg News

Justice Department Defends Subpoena of Media Phone Records

May 14, 2013

U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder, pictured, said the decision to seek media phone records was made by Deputy Attorney General James Cole. Photographer: Andrew Harrer/Bloomberg

The U.S. Justice Department official supervising an investigation of national security leaks to the news media said the government struck the right balance when it subpoenaed phone records of Associated Press reporters and editors without informing the news organization.

Deputy Attorney General James Cole, who took over supervising the investigation after Attorney General Eric Holder recused himself, said in a letter today that the department doesn’t “take lightly the decision to issue subpoenas” for phone records to the media.

“The subpoenas were limited to a reasonable period of time and did not seek the content of any calls,” Cole wrote to Gary B. Pruitt, the president and chief executive officer of the news service.

Under Holder, the Justice Department has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined. The Obama administration has brought indictments against five government workers for leaking information. The Defense Department is pursuing a sixth case against Bradley Manning, the U.S. Army private accused of sending classified documents to the WikiLeaks website.

Lawmakers from both parties joined the AP in criticizing the collection of phone records from a period during April and May of 2012. House and Senate members called for investigations.

‘Secret’ Seizure

Senate Majority Leader Harry Reid, a Nevada Democrat, told reporters today the subpoena of the AP records was “inexcusable and there’s no way to justify this.”

Pruitt, in a statement responding to Cole’s letter, said the Justice Department’s explanation “did not adequately address our concerns” and called the subpoena “overbroad under the law.”

“Rather than talk to us in advance, they seized these phone records in secret, saying that notifying us would compromise their investigation,” Pruitt said. “They offer no explanation of this, however.”

The White House said President Barack Obama wasn’t involved in the AP subpoena. Obama spokesman Jay Carney told reporters that the White House also didn’t know that the Internal Revenue Service was giving extra scrutiny to Tea Party and other small-government advocacy groups that were seeking tax exempt status.

Trust Questioned

Tom Price, a Republican congressman from Georgia, said the AP and IRS matters are part of a pattern that also included the administration’s explanations of the fatal attack on the U.S. mission in Benghazi, Libya, last year.

“The President and his administration have obfuscated, shifted blame or questioned the motives of those genuinely concerned with seeking resolution to these matters,” he said in an e-mailed statement. “Mr. President, how can the American people trust you?”

The department informed the AP on May 10 that it had subpoenaed records from certain telephone numbers associated with the AP. Pruitt, in a letter to Holder yesterday, called the collection of phone records a “massive and unprecedented intrusion” of the AP’s right to gather news under the U.S. Constitution.

Holder, who has been targeted by Republicans over the probe, said at a news conference in Washington today that he recused himself “to avoid the appearance of a potential conflict of interest and to make sure that the investigation was seen as independent.” He said he was interviewed as part of the U.S. investigation.

Resignation Sought

Reince Priebus, chairman of the Republican National Committee, said today that Holder should resign because he “violated the public trust” by obtaining journalists’ phone records.

Carney told reporters today that the president “has confidence” in Holder.

Cole, in his letter to the AP, said the investigation into national security leaks included more than 550 interviews and the review of tens of thousands of documents before the Justice Department sought the AP records.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with department policy, the subpoenas were limited in both time and scope,” Cole wrote.

Intelligence Reporting

The AP, a nonprofit news cooperative owned by U.S. newspapers and broadcasters, said the review of its journalists’ phone records may be related to a federal probe into a May 7, 2012, news report about an intelligence operation in Yemen that foiled a plot to blow up an airliner around the first anniversary of the killing of Osama bin Laden. The Justice Department letter didn’t specify why it collected the records.

Holder, who said he trusted the judgment of the officials who formulated the subpoena, called the disclosure of the intelligence operation “within the top two or three most serious leaks I’ve ever seen.”

Joel Kurtzberg, a media lawyer at Cahill Gordon & Reindel LLP in New York, said this may be the first time the Justice Department has invoked an exception to a requirement that it notify a media organization before seeking such a subpoena. The rule is set aside when notification would pose a substantial threat to the investigation.

“This is the first time that I am aware of that they have subpoenaed this many records without any notification or opportunity to be heard at all,” Kurtzberg said in an interview.

Kurtzberg, who has represented New York Times reporter James Risen in a leak case in Virginia, said the government hasn’t articulated why such notification would have harmed its investigation.

Cole said the subpoenas were part of the criminal investigation opened in May 2012. The Justice Department subpoenaed records from “a portion” of the months of April and May 2012.

To contact the reporters on this story: Phil Mattingly in Washington at; Jim Snyder in Washington at

To contact the editor responsible for this story: Steven Komarow at

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