What’s the Case for the Justice Department Seizing the AP’s Records?

Michael Catalini
National Journal

News that the Justice Department secretly acquired the telephone records of Associated Press reporters in a wide-ranging subpoena has put the Obama administration on the defensive with a critical constituency – the media.

But amid the uproar from reporters, former Justice Department spokesman Matthew Miller has been sparring with journalists on Twitter this week, taking issue with their characterization of the department’s actions and aggressively defending his old boss in the process.

“I recognize the difficult position this puts media outlets in. But the department was in no way trying to target media. They’re trying to figure out who broke their oath to the government,” said Matthew Miller, who was the department’s top spokesman from 2009 to 2011 and now works as a public affairs consultant at Vianovo.

“[The investigation] in no way prevents the media from asking questions… It does have a chilling effect. The goal is to have a chilling effect on people who would break their oath to the government,” Miller added. “It’s a problem that lots of government agencies have. They just have to get beaten up in the press for a while,” Miller said.

The revelation that the government obtained records for more than 20 of the AP’s phone lines in April and May of 2012 outraged the news service and touched off a debate about press freedoms. The AP argued the government potentially revealed information it had no right to know, and journalists reacted by calling the seizure “disturbing,” “shocking,” and “chilling.”

On Tuesday, Attorney General Eric Holder announced he had recused himself from the investigation after he participated in an FBI interview and to “avoid a potential appearance of a conflict of interest.” Deputy Attorney General James Cole, who took over the case, rejected AP CEO Gary Pruitt’s argument that the subpoenas were broadly drawn in a letter sent to Pruitt on Tuesday. Later on Tuesday, Pruitt responded to Cole's letter, rejecting his arguments.

"We appreciate the DOJ’s prompt response, but it does not adequately address our concerns. The letter simply restates the law and claims that officials have complied with it," Pruitt wrote.

Cole’s letter did not explain what was being investigated. The AP, though, reported on Monday that the U.S. attorney in Washington is pursuing a criminal case into who might have given information contained in a May 7, 2012 AP story, which provided details about a foiled terror plot that involved a CIA operation to stop al-Qaida from detonating a bomb on an airplane headed for the United States.On Tuesday, Pruitt acknowledged the AP believes that is the story under investigation. 

"We believe it is related to AP’s May 2012 reporting that the U.S. government had foiled a plot to put a bomb on an airliner to the United States. We held that story until the government assured us that the national security concerns had passed," Pruitt wrote. 

Miller said he thinks that case is “absolutely” the reason for the subpoenas and the investigation. Asked what advice he would give his former employer about how to handle this case, Miller advocated being upfront with the media.

“Explain why you took this step. Why it was necessary, why it was brought. The problem is there may be reasons why they can’t explain that right now,” Miller said.

Asked if he talked to anyone at the department about his suggestions, Miller played coy.

“I’ll keep that confidential,” he said.