WASHINGTON – Facing questions about the Justice Department’s secret seizure of reporters’ phone records, the White House says that it will renew its push for legislation that would offer federal protections to journalists and their sources.
White House spokesman Jay Carney said Wednesday that the White House has asked Sen. Charles Schumer, D-N.Y., to reintroduce the so-called media shield bill, which would in some cases, prevent reporters from being compelled to name confidential sources.
Schumer’s last attempt to pass the bill faltered nearly four years ago with little aid from the White House, and it has not been a priority for Congress or the president since then. But news that the government had secretly subpoenaed two months of phone records from more than 20 Associated Press telephone lines appears to have sparked new interest in the effort.
The White House has said the president did not know about the subpoenas and has not been involved in the criminal investigation. Attorney General Eric Holder also says he was not involved in the decision. In testimony on Capitol Hill on Wednesday, Holder said he recused himself from the investigation about a year ago, although he acknowledged that he did not put the recusal in writing.
Deputy Attorney General James Cole, whom Holder assigned to oversee the leak investigation, approved the subpoenas, Holder said.
Holder strongly defended the ongoing investigation. “I have faith in the people who are responsible for this case,” he told the House Judiciary Committee. “They are aware of the rules and followed them.”
But members of the committee from both parties were sharply critical of the subpoenas.
“It seems to me clear that the actions of the department have, in fact, impaired the First Amendment,” said Rep. Zoe Lofgren, D-Calif.
The White House this week has sought to use the president’s past support for a federal shield law to quiet the criticism on the AP subpoenas, which were issued as part of a leak investigation. Holder and Carney on Wednesday cited that record as evidence of the administration’s respect for unfettered investigative reporting.
But the president’s views on how best to protect journalists from prosecution and intimidation, while also balancing national security concerns, appear to have evolved in office. As a senator and candidate in 2008, Obama said he supported a shield law and specifically noted that he believed a court, not the executive branch, should determine whether a confidential source should be protected.
But as president, Obama sought to curb the role of the courts and broaden the executive branch power.
The initial bill proposed by Schumer, along with the late Sen. Arlen Specter, D-Pa., required the government to exhaust other means for finding the information before compelling a reporter to break a confidential agreement. Prosecutors would have had to go to a court before subpoenaing a reporter, leaving a judge to determine if national security considerations trumped free press concerns. The legislation carved out narrow exceptions for cases involving imminent danger or a terrorist attack.
The White House tried to add to that list any leak case involving a matter of significant harm to national security. The administration changes would have instructed judges to largely defer to the government on whether the matter would have caused such harm.
A compromise version eventually won support from the White House, the Senate Judiciary Committee and newspapers groups. Still, lawmakers vowed to make changes on the floor – expressing continued concerns about the national security exemptions as well as whether the protections should apply to bloggers and other nontraditional journalists. When Wikileaks began publishing a trove of government records, the appetite for the bill disappeared.
Schumer said Wednesday that the compromise that passed the committee would be reintroduced.