In a story appearing this morning at the Politico about the Department of Justice's broad and unannounced subpoenas of the April and May 2012 personal and business phone records of reporters and editors at the Associated Press involving 20 phone lines and involving over 100 reporters and editors, James Hohmann found several "veteran prosecutors" who aren't necessarily outraged by what most members of the press and several watchdog groups have declared a blatant overreach. Instead, Hohmann summarizes their "far more measured response" as: "It’s complicated."
Hohmann utterly ignored a May 15 Washington Post story which chronicled claimed discussions between AP and government officials. Ultimately, it appears that the Obama administration's Department of Justice under Eric Holder may have only gone after AP out of spite because the wire service refused to accommodate administration requests to allow it time to crow about foiling a terrorist plot before the story gained meaningful visibility, and not because the release of the story, especially after what appears to have been an appropriate and negotiated delay, represented a genuine security risk. One obvious unanswered question is why DOJ waited, according to the AP's Mark Sherman in his original story, until "earlier this year" to obtain the phone records if it was so darned important to find out who the alleged leaker was.
The WaPo story (HT Hot Air) by Carol D. Leonnig and Julie Tate recounted the discussions between the government and AP in the run-up to the publication of the wire service's scoop uncovered in late April on May 7, 2012 (bolds are mine throughout this post):
Some question whether AP leak on al-Qaeda plot put U.S. at risk
... some members of Congress and media advocates are questioning why the administration viewed the leak that led to the May 7 AP story as so grave.
... AP’s story about the foiled plot was at odds with the calming message the White House had been conveying on the eve of the first anniversary of the killing of Osama bin Laden. On April 30, the Department of Homeland Security issued a statement saying that there was “no indication of any specific, credible threats or plots against the US tied to the one-year anniversary of Bin Laden’s death.”
... The news service was prepared to publish its scoop on May 2, 2012. But in discussions with government officials, the CIA stressed to AP that publishing anything about the operation to obtain the bomb and thwart the plot would create grave national security dangers and compromise a “sensitive intelligence operation.”
... Then, in a meeting on Monday, May 7, CIA officials reported that the national security concerns were “no longer an issue,” according to the individuals familiar with the discussion.
When the journalists rejected a plea to hold off longer ("for just one more day," noted in an earlier paragraph -- Ed.), the CIA then offered a compromise. Would they wait a day if AP could have the story exclusively for an hour, with no government officials confirming it for that time?
The reporters left the meeting to discuss the idea with their editors. Within an hour, an administration official was on the line to AP’s offices.
The White House had quashed the one-hour offer as impossible. AP could have the story exclusively for five minutes before the White House made its own announcement. AP then rejected the request to postpone publication any longer.
The transparently cynical, PR-oriented behavior of the Obama administration described in the WaPo pair's story, along with the AP's Sherman's claim that Eric Holder's Department of Justice didn't obtain the phone records until "earlier this year," would lead anyone, apparently except the Politico's Hohmann, to question the underlying validity of the threat to national security allegedly caused by the original leak to AP. (One report in Slate says that DOJ went to Verizon Wireless for phone records "last year," but it's impossible to tell whether Ryan Gallagher knows that for a fact; even then, if it was late last year, the curiosity about the delay should remain, especially if there was no movement until after the 2012 elections.)
And just imagine who Hohmann found among those who sought to minimize the importance of DOJ's fishing expedition:
These lawyers recognize the threats to a free press but say the dangers of national security leaks — and the difficulties in finding the leakers — sometimes force the government’s hand. The actions of the Obama administration were unusual and deserve careful scrutiny, they say, but do not automatically equal a clear-cut abuse of power.
“I don’t think it’s a scandal,” said John Dean, Richard Nixon’s White House counsel who served jail time for his role in the Watergate cover-up. “It’s certainly not Nixonian.”
Dean said there is an inherent tension between protecting a free press and ensuring the nation’s safety. “It is something obviously the media is going to be exercised about because it’s affected a lot of their good sources,” he said. “I’m one who is very pro-open government, but I can also understand you can’t run national security operations in a fishbowl. So there’s got to be a balancing.”
The "veteran lawyers" interviewed, perhaps other than Dean, are very busy people, and either may not have been aware of the WaPo story when interviewed, or were interviewed before it broke. It's not unreasonable to believe that some may have changed their views based on the exchanges Carol D. Leonnig and Julie Tate described.
John Dean is right, though not in the way he believes.
The scope of the phone record snooping has been acknowledged as unprecedented by people across the ideological spectrum, meaning that it's well beyond "Nixonian."
Cross-posted at BizzyBlog.com.