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In AP Case, Little Evidence DOJ Broke the Law

Bill Clark/CQ Roll Call File Photo
Goodlatte believes the DOJ’s seizure of AP phone records is “contrary to the law.”

Did the Justice Department break the law when it secretly reviewed the phone records of more than 20 Associated Press reporters and editors? Many legal experts aren’t ready to go that far.

Media representatives and members of Congress contend that the department crossed a line when it seized records of personal and professional calls by AP staff. DOJ is believed to have been attempting to learn the identity of one or more government officials who leaked classified information that the wire service published in a May 2012 story about terrorist activity in Yemen.

House Judiciary Chairman Robert W. Goodlatte, R-Va., and panel member Zoe Lofgren, D-Calif., are among the influential voices in both parties who believe the department may have crossed a legal threshold.

At a Wednesday hearing with Attorney General Eric H. Holder Jr., Goodlatte said the DOJ’s confiscation of the AP phone records “appears to be contrary to the law and standard procedure,” while Lofgren said she believes it “impaired the First Amendment.”

Many legal experts argue, however, that the information available about the AP investigation thus far — while incomplete — does not show any violation of legal protections for the press.

Constitutionally, the Supreme Court has never found a reporter’s privilege within the First Amendment. The closest it came was a 1972 ruling in Branzburg v. Hayes, in which it held 5-4 that reporters are not exempt from testifying in a criminal grand jury, even if it means identifying their confidential sources.

In that ruling, the court declined “to grant newsmen a testimonial privilege that other citizens do not enjoy.” Lawmakers who argue that the Justice Department infringed on First Amendment guarantees of a free press, in other words, are taking a view that the Supreme Court has never accepted.

Statutorily, lawmakers have all but acknowledged that the DOJ did not break existing free-press laws because they instead are suggesting new laws be passed in response to the AP scandal.

House Judiciary ranking member John Conyers Jr., D-Mich., and Sen. Charles E. Schumer, D-N.Y., are promoting a “media shield” law that would grant reporters new legal protections from disclosing their sources. But even proponents of such a statute agree that it may not have prevented the Justice Department from seizing the AP’s records, because it would contain a national security exception that federal investigators could have invoked.

“The facts in the AP phone records case are still coming to light, so we cannot say for certain whether the bill would have changed the ultimate outcome,” Schumer and Sen. Lindsey Graham, R-S.C., said in a May 16 letter to their colleagues urging support for the media shield bill.

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