AP CEO: Justice Department violated own rules on press subpoena

Associated Press CEO Gary Pruitt said the Department of Justice had violated its own rules governing the subpoena of news organizations by not notifying AP before seizing thousands of phone records, many of which are not relevant to the department’s investigation into the leak of a CIA-thwarted Al Qaeda bombing plot.

“We believe that the rules were violated in this case, and the department believes they weren’t and they went ahead in secret and got their way…They swept up all the records, told us about them up to 90 days later,” said Pruitt. “This was an unprecedented intrusion into AP’s news-gathering records. We had never seen anything like this before. And it was an intrusion by government officials that was so broad, so over-reaching, so secretive that it violated the protected zone that the First Amendment provides journalists in the United States.”

The Justice Department’s rules require it to (1) provide advance notice to a news organization of any subpoena of news-gathering records and (2) to ensure the scope of the records covered in the subpoena is drawn as narrowly as possible.

Read more: Eric Holder defends Justice Department’s subpoena of Associated Press phone records

However, the Justice Department is exempted from having to comply with these rules if giving advance notice of the subpoena would “substantially impair the integrity of the investigation.”

Pruitt argued that the exception should not have been applied in this case and that AP should have notified in advance and given the opportunity to seek judicial review before its phone records were seized.

“The DOJ claimed the exception apply here, that if they had notified us, it would have substantially impaired their investigation,” said Pruitt. “How could that be? AP couldn’t tamper with these records. We don’t even have them in our possession. These records are maintained by the phone service providers.”

Pruitt also challenged the Justice Department’s reason for not wanting to “tip off” the leaker to justify the exception, pointing out that FBI Director Robert Mueller publicly announced the leak investigation days after the AP story in May 2012.

“Under their reasoning…every case is that exceptional case – ‘We don’t want to tip off the leaker.’ Even a public investigation? Give me a break!” Pruitt said. “That kind of reasoning from Justice about tipping off leakers would apply in every single case. The press would therefore never be given notice, never be able to go to courts to have them involved, the exception would effectively swallow the rule.”

By wrongfully invoking the exception, Pruitt said the Justice Department denied AP the opportunity to challenge the subpoena in court as well as to help narrow the scope of the phone records sought.

“There was never that opportunity. Instead, the DOJ acted as judge, jury, and executioner in private, in secret,” he said.

Pruitt also took issue with the “over-reaching” scope of records obtained by the Justice Department, which he said also violated the department’s own rules on subpoenaing the press.

In addition to the personal and work phone records of the two reporters who broke the Al Qaeda bombing story, federal investigators also seized records of the switchboard numbers of AP offices in New York; Washington, D.C., Hartford, Connecticut; and the main number of the House of Representative press galley.

These phone lines are used by more than 100 AP reporters who work on stories that are completely unrelated to the Al Qaeda bombing plot. Given the broad scope of the records collected, there is concern that the Justice Department could potentially identify the anonymous sources used by AP for other news stories not related to the Justice Department’s leak investigation.

“In doing so, they’re accessing a broad swath of other news-gathering information that’s protected by the First Amendment against precisely this type of intrusion,” Pruitt said.

Pruitt did note that he had received assurances from DOJ that phone records would continue to be “walled off and protected and use for no other purpose than the leak investigation”.

“We appreciate those assurances from DOJ. It doesn’t excuse what they did and we want to make sure that it doesn’t happen again,” he said.


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