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Most of the attention surrounding the propriety of the Justice Department’s actions has focused instead on internal DOJ rules that were codified in the Code of Federal Regulations in 1973. The AP argues that the department’s unusually broad probe into the news organization’s phone records, spanning portions of two months and phone lines in at least four bureaus, ran afoul of the regulations.
“The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with [the regulations] and should therefore never have been undertaken in the first place,” Gary B. Pruitt, the AP’s top executive, wrote in a letter to Holder on May 13. “The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be ‘as narrowly drawn as possible.’ This plainly did not happen.”
Lawmakers, including Senate Majority Leader Harry Reid, D-Nev., also have questioned whether DOJ acted appropriately under the rules by not first seeking to negotiate with the AP in an attempt to obtain relevant phone records.
The rules state: “Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible assistant attorney general determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.”
The Justice Department contends it didn’t violate the regulations. Holder said in a press conference May 14 that the leak at the center of the AP case was “one of the top two or three most serious leaks I’ve ever seen,” suggesting that advance negotiations with the AP were not necessary under the guidelines because they could have threatened the investigation. On the question of the breadth of its probe, the DOJ argues that its subpoenas “were limited in both time and scope.”
“For each of the phone numbers ... there was a basis to believe that the numbers were associated with AP personnel involved in the reporting of classified information,” Deputy Attorney General James M. Cole, who is leading the investigation because Holder has recused himself, said in a letter to Pruitt on May 14. “The subpoenas were limited to a reasonable period of time and did not seek the content of any calls.”
Even if the department is unequivocally found to have violated its own rules, however, some legal experts say that the AP would have limited legal options in response.
“The guidelines are purely a creature of executive discretion,” said David E. Pozen, a First Amendment expert and professor at Columbia Law School and the author of a forthcoming paper about government leaks. “No congressional statute or Supreme Court decision requires that the Justice Department adhere to them.”
But a House aide, who asked not to be identified, said that a violation of the Code of Federal Regulations can come with serious civil penalties.Other Legal Points Raised
While there may be no clear evidence so far that the department broke the law, lawmakers are going over DOJ officials’ public statements with a fine-toothed comb to test whether that is the case.