News organizations are convinced that the Obama administration trampled on freedom of the press when the Justice Department seized Associated Press phone records in pursuit of a government source who leaked details of a thwarted terrorist plot last year.
But some congressional analysts also are raising concerns that Justice violated the Constitution’s separation-of-powers provisions when it targeted the records of reporters working out of a press gallery on Capitol Hill.
The AP disclosed last week that Justice seized 2012 records of outgoing calls for the work and personal numbers of 20 phone lines assigned to the news service in an attempt to find out who leaked news of the U.S. government’s intervention of a terrorist plot in Yemen.
The phone records were from April and May 2012 and included calls made from a main AP number in the House of Representatives press gallery. A congressional source said that is particularly unnerving to congressional leadership.
Congress is sensitive about intrusions by the Justice Department, which is part of the executive branch, into its territory in the legislative branch — and legal analysts familiar with separation-of-powers protections in the Constitution say seizing phone records of journalists working out of a House press gallery raises red flags.
“Special concerns are raised if a secretive grab for records extended to those of AP reporters under the auspices of the House gallery,” said Charles Tiefer, a former House general counsel who is now a professor at the University of Baltimore School of Law. “The House might take strong measures to protect the House press gallery as it has done before — for example, when the FBI raided a congressman’s office and seized his hard drive and records of his emails.”
SEE ALSO: AP CEO calls Justice Department’s records seizure unconstitutional
Unprecedented raid
Seven years ago, House Republican and Democratic leaders joined forces to fight another type of Justice Department intrusion — an FBI raid of a sitting congressman’s Capitol Hill office.
Rep. William J. Jefferson, Louisiana Democrat, was under investigation on charges that he accepted $100,000 in bribes for promoting a telecommunication business in Africa. He eventually was convicted and went to prison, but not before the FBI made a surprise raid on his Capitol Hill office.
The Justice Department had never raided a congressional office before, and the move rattled lawmakers concerned about executive branch overreach. House Speaker J. Dennis Hastert, Illinois Republican, and Minority Leader Nancy Pelosi, California Democrat, fought the move in courts in a rare moment of bipartisanship in an otherwise bitterly divided chamber.
The speech and debate clause of the Constitution forbids any part of the executive branch, including the Justice Department, to impinge on the ability of Congress to legislate in any way.
Even though Jefferson ultimately was found guilty on 11 of 16 corruption charges, a federal appeals court ruled that the FBI raid on his office violated the Constitution.
SEE ALSO: Sen. John Cornyn: ‘Past time’ for Eric Holder to go
The ruling was a victory for lawmakers on Capitol Hill because it prevented prosecutors from using some emails and material seized from Jefferson’s office computers — and the FBI hasn’t raided a congressional office since.
United front
Former Rep. Dennis J. Kucinich, an Ohio Democrat who lost his seat in the November elections, raised the separation-of-powers issue in a tweet the day news broke about the Justice Department’s seizure of AP phone records last week.
“Justice Dept probes AP in Congress press gallery attack on 1st Amendment & violation of separation of powers,” he tweeted.
“This is a question of separation of powers — the same kind of question that was raised when the FBI went in and raided William Jefferson’s office,” he said last week. “They did this without notifying congressional leaders. There was no attempt to use the courts? They have the power to reach in and without any notice, reach into an office operated by the House [of Representatives]?”
Rep. Walter B. Jones, North Carolina Republican, differs with Mr. Kucinich on most political matters but shares his passion for protecting civil liberties.
He, too, said the revelation that the Justice Department was seizing phone records of AP reporters working out of a House gallery on congressional property smacks of a separation-of-powers violation.
“I find this very troubling,” he said. “There are conversations that happen between reporters and members of Congress and there are constitutional protections for the press, as well as Congress, not to have the Justice Department reaching into our branch when it feels like it will help something they are pursuing.”
The House general counsel is looking into the matter but said no separation-of-powers violations exist because the phones in question are not considered House lines, according to a congressional source familiar with his thinking.
Legal debate
The AP pays for all of its phones and lines at its workspace in the Capitol, and the billing is solely between the carriers and the news agency.
Jan Baran, a partner at the law firm Wiley Rein who specializes in representing members of Congress in ethics matters, said he doesn’t see direct separation-of-powers issues in this case.
“The AP and its employees are not government officials, let alone congressional officials,” he said. “The fact that they work in the House press gallery does not change their status. I also am not aware that any congressional documents (including emails on House servers) were subpoenaed or obtained. If they were, that might raise the separation issue since DOJ would have to refrain from seeing or obtaining legislative data.”
Mr. Kucinich rejects those arguments. The House of Representatives provides accreditation for journalists working out of the press galleries and even pays for staff to oversee the galleries and assist journalists in procedural matters on Capitol Hill, he said.
“To me, the Justice Department [seizing records of a reporter working out of the House gallery] is more troubling than anything else [in the case],” he said. “I don’t think there’s a lot more that has to come out there. There are broad protocols about this, and they have been violated.”
The AP itself has argued that the seizure of the phone records was unconstitutional on different grounds: as a violation of the First Amendment’s free press protections.
“We don’t question their right to conduct these sort of investigations. We just think they went about it the wrong way. So sweeping, so secretively, so abusively, and harassingly and overbroad that it constitutes that it — that it is an unconstitutional act,” Gary Pruitt, AP president and CEO, said on Sunday’s “Face the Nation.”
• Susan Crabtree can be reached at scrabtree@washingtontimes.com.
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