AP Subpoena, Fox News Search Warrant Demonstrate Need for a Federal Shield Law
Attorney General Eric Holder has been working overtime lately to deal with the firestorm created by two run-ins between the Department of Justice and journalists.
The department's own disclosure that it had subpoenaed the telephone records of the Associated Press and the subsequent news that federal investigators in 2010 had obtained a search warrant to read the email of a Fox News reporter were both stunning developments. The scope of these actions were literally unprecedented, whether measured by the number of AP phone lines involved (20) and the span of time (2 months), or by the fact that a reporter was branded a criminal so Justice could sift through his email account.
Since then, Holder has been meeting with journalists in small groups to discuss the issue, and he owes President Obama a report on the incidents by mid-July. Hopefully, these meetings will lead to a reworking of the Attorney General's guidelines (28 C.F.R. § 50.10) that lay out rules for interacting with the news media in a federal investigation. But that's just a start.
What the incidents have laid bare is that regardless of what those regulations say, ultimately the interpretation and implementation of the rules cannot remain in the hands of those who are seeking the evidence in the first place. Currently, the application of the rules begins and ends with federal investigators. And their interpretation is suspect; they have read narrow language broadly to apply an exception to the notice requirement, and they have branded a reporter an "aider and abettor and/or co-conspirator" of a crime under the Espionage Act to get around a federal law that protects the news media from search warrants. Holder has tried to ease this news by saying that the department won't actually prosecute a journalist under this theory, but that just shows the weakness of their judgment - say something's a crime to get around a protective law, but don't really treat it as a crime itself. …