The Public Pressure on Subpoenas

by emptywheel

Yesterday, there were two stories about subpoenas of journalists that suggest something about journalist subpoenas. The first story involves an attempt by some Phoenix big-wigs to cow the alternative New Times into backing off investigations into them.

In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat's paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present."

Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.

The New Times published news of the subpoena, the Sheriff arrested New Times' execs, and then--after these events received national attention, the County Attorney sheepishly dropped the investigation into the paper, claiming he hadn't known the direction the investigation had been headed. The subpoena of the press (and its readers) was a clear abuse of power on its face and the publication of that subpoena forced the County to drop its investigation.

One note: this abuse of power was really little more than an application of the Bush Administration's terrorist fighting techniques to the area of public corruption. The Sheriff thought he could get away with asking for the cookies data from New Times readers (going back longer than Comcast, at least, keeps such information) by hiding it under a veil of secrecy. A National Security Letter for personal political gain, if you will. While this abuse of such secrecy was exposed, it sure makes you wonder how often law enforcement is mimicking the NSL model without being exposed?

And then there's Murray's story, revealing that DOJ tried to get two dicey guilty pleas in the investigation into the sources for James Risen's and Eric Lichtblau's exposure of the illegal domestic wiretapping. The point of Murray's story is that DOJ was trying to get a conviction in the domestic wiretap case to shift the focus away from Alberto Gonzales' lying and onto this skimpy case.

Some investigators in the leak case say they believe there was pressure to obtain guilty pleas despite the paucity of evidence to deflect attention away from charges that Gonzales gave false or misleading testimony to Congress about the eavesdropping program, as well as broader questions about the legality of the program

But it suggests something else: they've hit a wall in this investigation, and they're not going to get any further without subpoenaing Risen and Lichtblau. But since the time "earlier this year" when DOJ tried to get these guilty pleas and now, they have not chosen to subpoena the journalists.

I suspect that is not a mistake. In spite of the fact that the wingnutosphere will lead the fight to lynch Risen and Lichtblau for their reporting, a great deal of the country would not follow along in this case--there has just been too much published about the improprieties of the program. Furthermore, as soon as you get Risen and Lichtblau before the courts, they can start arguing that their sources were true whistleblowers, exposing an illegal program, rather than leakers guilty of the espionage act (which is, I presume, the legal basis on which they would try to subpoena the journalists).

In other words, the refusal, by these two people, to plead guilty to leaking this information has effectively called the Administration's bluff, it's claim that it will go after journalists to find out who leaked this information. And thus far, in a highly public case, they have chosen not to do so. Don't get me wrong--the Administration is subpoenaing those journalists it can subpoena quietly; they're doing so with abandon. But thus far, they've proven unwilling to subpoena Risen or Lichtblau (or Dana Priest, for that matter).

Comments

[bmaz]

Exactly. The whole little process of "arguing that their sources were true whistleblowers, exposing an illegal program, rather than leakers guilty of the espionage act" would not only be an excellent forum for rehashing what we have already had on this, but also to dig deeper, both journalistically and through legal process, into the sordid facts. And Risen, Lichtblau and Priest ain't "Sweet Judy Blew Lies" (Jeebus, you just gotta love that one). The investigative reporting community will all come out to bat for these three. That would be game on; and, as usual, when it really gets down to it, the thugs never have the stomach for a battle that is not rigged and might be fought hard. Exactly why it is so inconceivable that the Democratic Congress can't muster a better effort....

[John Lopresti]

It was interesting that the local one party system in the az town was following the communities of interest profiling in its request for cookiefiles, kind of a third-worlding of several articles, amendements, to the US constitution, on the coattails of the newspeak act of 2001-2007. Also illuminating was one student's retrospective comparing learning from a talk given recently at UT by Rove vis-a-vis adapting to the research capabilities incorporated in the search engine by Google; article. Besides the link from 2003 from PhxNT which bmaz posted the other day, I had another Google anecdote which related to how that searchengine populates its lists; at the time of the sale of the million dollar alfalfa acreage e.w., NYT, and others wrote critiques, and a contemporary search on Google produced only AZ's MSM Republic and Star archives. A personal links list at an advocacy organization's website actually yielded more than Google which one month later still was capable of only a paltry list of found materials; namely the western lands project, which had posted a rare 2007 pdf of a news article from the PhxNewTimes about the congressman involved in the prior 2003 incident but explaining more about alfalfa. To follow those several facets of the now tapering congress career of that out-of-district gentleman, consider a blurb from this past week regarding the immigrant fence in the same riparian area in a local newspaper there. I wonder, if it comes to be that Sulzberger's recently enunciated vision of his willingness to transition the entire output of that news entity to wholly electronic and absolutely treeless publication takes place over the next few years, whether Google also might find at that stage NYT actually will have better archives for historical research purposes. kx has written of some of the complex of opposing strategies which might 'pinch' Risen and Lichtblau, maybe DanaP; interestingly, Mukasey hails from that district. I see Mukasey as interested in limiting access to justice in business friendly ways, much aligned with views like JRoberts' and SAlito's; but maybe capable of independence in some other pursuits such as the rash of propaganda, payola, and stateSecrets postures the administration has used in domestic courts as novel tools; but Rove just made all this up, with Addington's contributions and the encouragement of the compartmentalized few; on the right.

[phred]

The last place the administration wants to end up is in a court where the extent of their unitary powers may finally be curtailed. Much better to just assert those powers without risking judicial review. I would be surprised if issuing subpoenas to Risen and Lichtblau is really a fight they want to choose.

[Jodi]

We need an Official Secrets Acts that clarifies what is secret and what is not.

[John Lopresti]

Bush is reluctant to let much actual news happen on this topic; I found that linked article surprising, though in conformance with the history of this administration. Cutting to that chase: RedCross reports are states secrets?

[John Lopresti]

The update here is outsourcing the subpoenas. The elected official claims the outsource entity failed to let the pols know of the subpoena's existence or the extent of demands; part of the reporting is ire that taxpayer money was spent to recruit outside attorneys to do the skullduggery of jailing the press execs but it looks like $300.K mostly went to members of the official's former employer, a lawfirm, to perform this and other assignments.

[bmaz]

John - Yeah, I probably should have posted something about that aspect earlier. This has been going on for a while here with Thomas and Arpaio using Wilenchik as basically a hired hit man on their enemies. Andrew Thomas states and acts to the media like he didn't really know that much about what his "special prosecutor" Dennis Wilenchik was doing in his name; but he knew, and he authorized every bit of it. Wilenchik is not only Thomas' former law partner or boss, he is also Thomas and Arpaio's boy as I said above; they are all connected at the hip. Wilenchik was Thomas's hired thug on not just the New Times case, but also the case attacking the judges, the attack on our Attorney General Terry Goddard, a local immigration rights group and a couple of other cases that are not particularly public. Wilenchik also represented Arpaio in a recently concluded civil trial where one of his former Chief Deputies sued him for campaign fraud, abuse and civil rights violations. The civil work is what Wilenchik has always done. He has no criminal prosecutorial experience other than a very brief stint as an entry level line misdemeanor prosecutor, lasting probably less than two years before he went into private civil practice. There have been allegations of improper contact with judges on more than one of the "special prosecutor" cases he has done for Thomas; and rumors of it on the Arpaio civil defense case. The state bar here has indicated they are taking the judge attacks and actions in relation to Mike Lacey and Jim Larkin of the New Times, as well as the other ethical allegations, extremely seriously as to both Thomas and Wilenchik. Good; they couldn't be more deserving.