McConnell recently said he'd make the incident an issue all the way through 2014. DOJ probes McConnell HQ taping

Justice Department prosecutors in Washington are now part of a high-profile criminal investigation into the secret taping at Senate Minority Leader Mitch McConnell’s campaign headquarters in Louisville.

The move comes after David Hale, the U.S. attorney for the Western District of Kentucky, recused himself from the McConnell case because he has been mentioned as a possible nominee for a federal judgeship, which would require Senate approval.


At the same time, any attempts to subpoena evidence from Curtis Morrison — a liberal activist who surreptitiously taped McConnell and his aides at a campaign meeting in February — would most likely need the personal approval of Attorney General Eric Holder, according to federal regulations, which require Holder to approve subpoenas for journalists. Morrison was previously a paid freelancer for a Louisville-based, online news outlet, even though he was engaged in political activities with the goal to defeat McConnell.

( Also on POLITICO: McConnell: Administration creating ‘culture of intimidation’)

These latest developments underscore the sensitivity of the case involving McConnell, the most powerful Senate Republican and a vehement critic of President Barack Obama. Any delay or decision to forgo prosecution of Morrison would be used by the McConnell campaign as fodder to attack Obama’s Justice Department, as would an apparent decision by federal prosecutors to classify the liberal activist as a journalist and treat him accordingly.

Yet any DOJ investigation of journalists is itself an enormously sensitive topic in the aftermath of its subpoena of phone records from The Associated Press and the separate criminal probe into Fox News reporter James Rosen, both of which have generated major controversy.

The furor over Morrison’s actions began after an April report in Mother Jones magazine about the McConnell campaign meeting. Morrison, who worked for a liberal group called Progress Kentucky, has admitted that he taped the private conversation between McConnell and his campaign aides Feb. 2, including discussion of potential attack lines against actress Ashley Judd, who was considering running against McConnell.

( Also on POLITICO: The Sharyl Attkisson approach)

Following Mother Jones’s publication of Morrison’s recording, McConnell suggested Democrats were acting in “Nixonian fashion” by “bugging” his campaign headquarters. The FBI quickly became involved in the case, interviewing McConnell and his staff. Morrison was fired from his job as a freelance reporter for the publication Insider Louisville.

Sources familiar with the McConnell case said the heightened involvement of Main Justice — as the Justice Department headquarters is known — appears to have slowed down what had been a rapidly moving investigation.

But senior Justice Department officials deny that the case had been bogged down in any way, either by Hale’s recusal or Morrison’s status as a journalist.

( QUIZ: How well do you know Mitch McConnell?)

“The department is committed to a full, timely and appropriate resolution of this investigation,” a Justice Department representative said. “No one from department headquarters has sought to interfere with the investigation or slow it down in any way. The recusal of the U.S. attorney in this matter has resulted in prosecutors from department headquarters being assigned to assist in the investigation, which is not uncommon in recusal situations.”

In a statement, Hale said he initiated a Justice Department review several weeks ago after his name surfaced in the media as a possible federal judicial nominee to determine whether he should recuse himself from the case.

“Following the review, a determination was made by the Office of the Deputy Attorney General that my personal recusal in this instance was appropriate to avoid an appearance of conflict,” Hale said.

Hale has been serving in his post since May 2010, and if he were nominated by Obama for a federal district judgeship, McConnell would have to vote on whether to confirm him. A one-time campaign aide for former Rep. Ben Chandler (D-Ky.), Hale was also a partner at the Louisville law firm Reed Weitkamp Schell & Vice.

“There is still an investigation by the FBI in Louisville,” said Stephanie Collins, a spokeswoman for the U.S. Attorney’s Office in the Western District of Kentucky.

At issue in the case is whether Morrison violated the Electronic Communications Privacy Act, a federal anti-eavesdropping law, according to sources close to the case. That statute prohibits anyone using an “electronic, mechanical or other device” from improperly recording “wire, oral or electronic communications.” Violations can result in a five-year prison term and carry up to a $250,000 fine.

In February, Morrison, along with another activist from Progress Kentucky, Shawn Reilly, entered a Louisville office building that houses McConnell’s campaign headquarters.

Since it was a Saturday, there were no security officers at the front desk, and the building’s main door was unlocked because the McConnell campaign held an earlier public event celebrating the opening of its headquarters, Morrison said in an interview.

Follow @politico

After Morrison and Reilly entered the building, they heard McConnell talking to his campaign staff in a closed meeting room. According to Morrison, he placed a hand-held flip camera next to the door, which picked up audio from the meeting. McConnell and his aides were discussing opposition research against prospective Democratic and GOP primary opponents, including Judd.

“I assume most of you have played the, the game Whac-A-Mole?” McConnell said on the tape. “This is the Whac-A-Mole period of the campaign … when anybody sticks their head up, do them out.”

Two months later, the leaked tape was reported by Mother Jones, which posted the full recording and transcript. This prompted howls of protest from McConnell and his aides.

In a recent interview, McConnell said he would make the incident an issue all the way through 2014.

“It isn’t over,” McConnell told POLITICO. “It’s an issue — we’ll be talking about this all the way to the election.”

Morrison quickly admitted culpability for recording the meeting, and Reilly has met with the FBI and is cooperating in the case. Morrison penned a 2,800-word op-ed in late May on Salon.com detailing the incident, saying he would record McConnell again if he had a chance.

Morrison said his attorney was slated to meet in early June with Bryan Calhoun, an assistant U.S. attorney in the Louisville office, as potential charges against him were being presented to a grand jury.

But Morrison later tweeted that the meeting had been canceled, no reason was given and no follow-up had been scheduled. Morrison, though, declined to identify who is representing him in the federal probe.

In an interview, Morrison remained defiant, saying he wants to go to trial in order to expose what he believes are improper McConnell campaign maneuvers, including the possibility of illegally coordinating with outside groups. Moreover, critics contend that McConnell was using personal and leadership staffers to engage in campaign-related activities on federal time, which is illegal. Still, the meeting occurred on a Saturday, which is a day off for most Hill staffers, and McConnell aides deny there was any wrongdoing on their part.

“I’m going to be thrilled if I’m indicted,” Morrison said. “If I get to find out who was in that room, I’ve been told by a lot of people that it … won’t make [McConnell] look good.”

Before working as an activist for Progress Kentucky with the sole mission of bringing down McConnell, the 44-year-old Morrison in 2010 left his career as a real-estate agent and returned to college, attending the University of Louisville to study communications. Morrison started his own blog and then became a paid freelancer for Insider Louisville, a local news website, in 2011. He also wrote six op-eds for the Louisville Courier-Journal, he said.

Morrison was fired from Insider Louisville after revelations he was involved with taping the McConnell campaign.

“Curtis has the makings of a solid reporter, under adult supervision,” Terry Boyd, an editor of the website, wrote in an online column. “Unfortunately, Curtis is also an overt and dedicated political activist, and you can’t be both at the same time at Insider Louisville. It was my mistake to keep Curtis without an explicit guarantee he wouldn’t indulge in politics. A painful lesson we’ll never repeat.”

Morrison said he met with FBI investigators in Louisville after a Kentucky Democratic official told the media that Progress Kentucky was behind the taping. Morrison said he voluntarily provided the FBI with his computer and camera.

While reporters may not break the law to gather news, an indictment of Morrison would also be fraught with potential legal land mines because of his status as a journalist. In order to subpoena him prior to an indictment by a federal grand jury, Holder would have to personally approve the action. Holder has recently been grilled by lawmakers in both parties over the AP and Rosen cases, making any potential action against Morrison — despite his own admission of guilt — a potential headache.

“From my point of view, anybody who is gathering information to disseminate to the public in the fashion of a journalist should be treated as a journalist, whether they work for a traditional news media organization or run their own blog,” said Charles Tobin, a media law expert with Holland & Knight. “The [federal] regulations take into account that subpoenaing journalists should be a very, very rare activity and only done in cases of provable, extreme need.”

Follow @politico