On Monday afternoon, the Associated Press reported that the U.S. Department of Justice had “secretly obtained two months of telephone records” from 20 phone lines assigned to reporters and editors from the global news organization. The shocking revelation comes on top of news that the IRS targeted conservative groups for special scrutiny. It will be harder for President Obama to pin the DOJ’s action on lower level bureaucrats, however, because requests to subpoena news organization records require the approval of Attorney General Eric Holder.
The DOJ’s U.S. Attorneys’ Manual is quite clear on this point:
The Attorney General’s authorization is normally required before the issuance of any subpoena to a member of the news media or for the telephone toll records of a member of the news media. However, in those cases where the media member or his or her representative agrees to provide the material sought and that material has been published or broadcast, the United States Attorney or the responsible Assistant Attorney General may authorize issuance of the subpoena, thereafter submitting a report to the Office of Public Affairs detailing the circumstances surrounding the issuance of the subpoena….
Because this probe was secret, the second condition was not met, meaning that Holder’s approval was necessary. The manual goes on to explain:
Department attorneys seeking the Attorney General’s authorization to issue a subpoena to a member of the news media, or for telephone toll records of a media member, must submit a written request summarizing the facts of the prosecution or investigation, explaining the essentiality of the information sought to the investigation or prosecution, describing attempts to obtain the voluntary cooperation of the news media through negotiation and explaining how the proposed subpoena will be fashioned as narrowly as possible to obtain the necessary information in a manner as minimally intrusive and burdensome as possible.
So, either attorneys’ ignored procedure in obtaining phone records without proper approval, or Holder directly approved an operation that involved obtaining journalists’ work and personal phone records. Holder is scheduled to testify before the House Judiciary Committee on Wednesday for an oversight hearing.