Media Coalition Letter Regarding AP Subpoena, page 2

Narrow scope of the subpoena:

Section 50.10(g)(1) r equires that a subpoena “should be as narrowly drawn as possible; it should be d irected at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” The available evidence shows that no such constr aints were applied here. Instead of being directed at relevant records on a limited topic for a closely circumscribed time period, the subpoena appears to have covered

all

records that

could

be relevant so that prosecutors could plunder two months of newsgathering materials to seek information that might inter est them.

Seeking information from alternative sources:

Sections 50.10(b) and 50.10(g)(1) require the Department to take “all reasonable alternative investigative steps” before subpoenaing phone records. Although the public is not in a position to know what alternatives were pursued, the sheer breadth of this subpoena suggests that it was an initial investigati ve step taken as part of a prosecutor’s desire to gather up even the most remote material when beginning an investigation.

Obligation to inform and negotiate:

Section 50.10(d) requires federal prosecutors to disclose their intent to pursue a subpoena and negotiate with the news media in “all cases” involving telephone records. Only if prosecutors determine that such negotiations would “pose a substantial threat to the integrity of the investigation” are these obligations removed. The purpose of such an exception is to ensure, in the rare inquiry where there is a reason to be concerned about the preservation of evidence, that records are not lost or destroyed. By deciding in this case i nvolving one of the nation’s oldest and most respected news organizations that a subpoena

would

pose such a threat, the Department has severely harmed its working relationship with the news media, which time and time again have undertaken good-faith efforts to cooperate with government lawyers in a way that protects the public’s interest both in law enforcement and in independent and autonomous newsgathering.

Attorney General approval:

Section 50.10(e) requires the “express authorization of the Attorney General” before any subpoena to t he news media may issue. This requirement serves as a final backstop to prevent abuses b y making sure accountability for these actions is placed at the very top of the agency. It was anticipated t hat the fact that media subpoenas must go to the highest official of the Justice Department would ensure that government lawyers would take every precaution before asking for approval and that the Attorney General would serve as a check on abusive practices that would undermine the sensitive relationship between journalists and their sources, and between the press and the government. But the system failed here – either because your approval was not sought, or because it was given when it should not have been.

Balancing of interests:

The very point of the g uidelines is to ensure that the Department conforms its behavior to the understanding “the a pproach in every case mu st be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

See