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Seizure of AP phone records on Capitol Hill raises concerns about separation of powers
“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]?”
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.
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.”
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About the Author
Susan Crabtree is an award-winning investigative reporter with more than 15 years of reporting experience in Washington, D.C. Her reporting about bribery, corruption and conflict-of-interest issues on Capitol Hill has led to several FBI and ethics investigations, as well as consequences for members within their caucuses and at the ballot box. Susan can be reached at firstname.lastname@example.org.
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