DOJ Issues First Annual Media Subpoena Report

The DOJ has released its inaugural report on use of subpoenas to obtain information from "media sources." This is part of former Attorney General Eric Holder's nod to transparency -- a nod he gave shortly before leaving office. We'll have to watch this space in 2016 to see if it will actually become an "annual" report. (And if it is, we'll also have to watch this space to see if Reason and Popehat are considered by the DOJ to be "media sources" after tangling with both over the discussion of federal judges and woodchippers.)

That being said, there's some interesting information in here, including the DOJ's hassling of the New York Times.

In connection with the trial of former CIA officer Jeffrey Sterling, who was charged with, and convicted of, offenses related to his unauthorized disclosure of national security information, the Attorney General authorized the Criminal Division and the USAO for the Eastern District of Virginia to issue a subpoena to New York Times reporter James Risen. The authorization was limited to eliciting testimony at trial and/or pretrial hearings confirming (1) that Risen has a confidentiality agreement with a particular source, (2) that Risen authored a particular chapter in his book State of War, (3) that statements attributed to an unnamed source were, in fact, made by an unnamed source, (4) that statements attributed to an identified source were, in fact, made by an identified source, and (5) the existence of a prior non-confidential reporter-source relationship with Sterling.

[...]

The subpoena was issued, and Risen testified at a pretrial hearing. He was not called to testify at trial.

That last sentence is particularly interesting as it pretty much glosses over the DOJ's about face on Risen's testimony. It pushed hard to force Risen to testify in hopes of getting him to reveal his confidential source. Risen did testify (pre-trial) but refused to disclose his source's identity. The DOJ then decided that if it wasn't able to get what it wanted from him, then neither should anyone else. It moved to declare Risen an "unavailable witness," in hopes of blocking the defense from using any testimony he would provide against the government. In the DOJ's retelling of the event, its fruitless struggle to obtain information and its subsequent attempt to block further testimony from Risen is reduced to a very short and very neutral sentence: "He was not called to testify."

Of additonal bemusement is the DOJ's interest in determining whether Risen's "unnamed source" was actually an "unnamed source." It appears the government believes it should be the sole provider of "unnamed sources," and then only when such statements deliver the government's unofficial official positions.

The DOJ also tried to compel an unnamed "television news producer" to testify on inflammatory statements made to him by convicted terrorist Khalid al Fawwaz. Although the "transparency" report doesn't name the source targeted by the subpoena, the information the DOJ remains coy about is already in the public domain, as Britain Eakin of Courthouse News Service points out.

Media reports last year identified the witness in question as "60 Minutes" news producer Richard Bonin.

The DOJ says it wanted the producer to testify about anti-American and anti-Semitic statements al-Fawwaz made to him, but that prosecutors ultimately decided not to issue the subpoena when the producer said he would contest it.

Other items listed are more run-of-the-mill, including the subpoenaing of media footage of the 2013 Boston Marathon finish line, as well as other footage/recordings of interest to criminal prosecutions. Subpoenas were also issued to media entities to obtain information related to the DOJ's investigation of these entities for antitrust violations and a "tax-related prosecution."

The government's insatiable desire for redundancy is also on display in the three-page report.

In connection with the prosecution of Roger Key for conspiracy to commit murder-for-hire, attempted murder-for-hire, and aiding and abetting the unlawful discharge of a firearm. the United States Attorney for the Southern District of New York authorized the issuance of a subpoena to a news media entity for the broadcast footage of, and script for, a report concerning a related murder. The news media entity expressly agreed to provide the requested recordings in response to a subpoena.

So far, so good. But...

Ultimately, the news media entity failed to respond to the subpoena.

That sucks, except…

[W]hile the subpoena was pending, the USAO negotiated with the defense a stipulation regarding the admissibility of the publicly broadcast report.

Yes, the DOJ subpoenaed a publicly-broadcast news report. I would guess the media entity decided not to respond because the information sought was already publicly available. The DOJ's move to obtain a stipulation while the subpoena was still pending suggests someone involved realized this paperwork was unnecessary to achieve its aims.

The report may be brief, light on specifics (some of it due to ongoing prosecutions) and occasionally needlessly opaque (not identifying Robert Bonin, etc.), but it does retain one distinct advantage over all previous DOJ subpoena reports: this one actually exists! Here's to next year's annual report, which will hopefully give us a look at the DOJ's investigation of comment thread bombast and hyperbole.

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