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.”
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.
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.
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.
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.