TREMOGLIE: The Bill of Rights is not a suicide pact

First Amendment privileges must be weighed against national-security obligations

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Eric H. Holder Jr. is arguably the worst attorney general of all time. He obstructed inquiries by the U.S Commission for Civil Rights into the New Black Panther voter intimidation case. He was held in contempt of Congress for his obfuscation of the Justice Department’s Mexican gun-running investigation.

However, he may be right about subpoenaing the phone records of Associated Press reporters to investigate leaks of national security information. The Department of Justice wants to know who told the AP about a CIA operation in Yemen that thwarted an airline bomb plot. Mr. Holder said the leak “put the American people at risk.”

Most citizens have no problem with investigating someone who fecklessly leaks confidential information to the media. Polling indicates the public either does not find the matter important or favor the investigation. A recent Pew Research poll indicated that 64 percent were not following the story. The Washington Post-ABC News poll asked if federal prosecutors obtaining the AP’s phone records through a court order was justified. Fifty-two percent respond it was — only 33 percent said it was not.

But AP President and CEO Gary Pruitt was infuriated. Speaking on CBS’ “Face the Nation” with Bob Schieffer on May 19, Mr. Pruitt claims the action was unconstitutional. “It’s too early to know if we’ll take legal action but I can tell you we are positively displeased and we do feel that our constitutional rights have been violated,” Mr. Pruitt said.

The Justice Department denies this. Deputy Attorney General James Cole stated in a May 14 letter to Mr. Pruitt that no laws were violated.

“We strive in every case to strike the proper balance between the public’s interest in the free flow of information and the public’s interest in the protection of national security and effective enforcement of criminal laws. We believe we have done so in this matter,” Mr. Cole explained.

While Justice as its detractors, it also has defenders.

Among them are three former senior Justice Department officials from three different administrations: William Barr, U.S. attorney general from 1991 to 1993; Jamie S. Gorelick, deputy attorney general from 1994 to 1997; and Kenneth L. Wainstein, assistant attorney general for national security from 2006 to 2008,

They wrote a column for the May 21 New York Times refuting the AP. They said “the criticism of the decision to subpoena telephone toll records of AP journalists in an important leak investigation sends the wrong message to the government officials who are responsible for our national security. While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak vigorously. The leak — which resulted in a May 2012 article by the AP about the disruption of a Yemen-based terrorist plot to bomb an airliner — significantly damaged our national security.”

Others feel more information must be known before judgment is made. Ronald Rotunda is a law professor at Chapman University Law School in Orange, Calif., and a specialist in constitutional law. He is withholding condemnation for now. “It is certainly possible that what Justice did was appropriate,” declared Mr. Rotunda. “But it needs further investigation. It may be some of this is not appropriate.”

He acknowledged that the federal government does not have a reporter’s privilege statute. He elucidated that the Supreme Court in Branzburg v. Hayes asserted in a 5 to 4 opinion that the First Amendment does not protect journalists of a citizen’s obligation to respond to a grand jury subpoena. He noted, though, that while the court did not adopt a free-ranging reporters’ privilege, it allowed that there could be in some instances.

“This is the only Supreme Court case about this issue,” explained Mr. Rotunda. Justice Lewis F. Powell Jr. “concurring with the majority said that if the government has an illicit motive that is not part of legitimate law enforcement, there is a reporter’s privilege.”

Indeed, Justice Powell declared that if a journalist “has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered.”

“We cannot find Mr. Holder guilty, but we cannot find him innocent at this time. Mr. Holder must make a defense,” Mr. Rotunda argued.

The Justice Department’s contemners must proceed cautiously. National security should not be politicized. Imputing scandalous motives does no good unless one has proof.

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