DOJ Goes Nuclear on Goldman and Apuzzo

While the AP doesn’t say it in their report that DOJ got two months of unnamed reporters’ call records, but this effectively means they’ve gone nuclear on Goldman and Apuzzo for breaking a story the White House was going to break the following day anyway.

Prosecutors took records showing incoming and outgoing calls for work and personal numbers for individual reporters, plus for general AP offices in New York, Washington and Hartford, Conn. The government also seized those records for the main phone number for AP in the House of Representatives press gallery.

The Justice Department disclosed the seizure in a letter the AP received Friday.


In the letter notifying the AP received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

As a reminder, here’s a history of the White House’s attempts to dubiously claim they weren’t planning on releasing the information themselves, as they had the last time a Saudi infiltrator tipped us to a plot.

When the AP first broke the story on UndieBomb 2.0, it explained that it had held the story but decided to publish before the Administration made an official announcement on what would have been Tuesday, May 8.

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

Once those concerns were allayed, the AP decided to disclose the plot Monday despite requests from the Obama administration to wait for an official announcement Tuesday. [my emphasis]

Since that time, the Administration has tried to claim they never intended to make an official announcement about the “plot.” They did so for a May 9 LAT story.

U.S. intelligence officials had planned to keep the bomb sting secret, a senior official said, but the Associated Press learned of the operation last week. The AP delayed posting the story at the request of the Obama administration, but then broke the news Monday.


“We were told on Monday that the operation was complete and that the White House was planning to announce it Tuesday,” he said.

Then the White House tried misdirection for a Mark Hosenball story last week–both blaming AP for information about the Saudi infiltrator the AP didn’t break, and attributing Brennan’s comments implying the plot involved an infiltrator to hasty White House efforts to feed the news cyclespinrespond to the story.

According to National Security Council spokesman Tommy Vietor, due to its sensitivity, the AP initially agreed to a White House request to delay publication of the story for several days.

But according to three government officials, a final deal on timing of publication fell apart over the AP’s insistence that no U.S. official would respond to the story for one clear hour after its release.

The White House places the blame squarely on AP, calling the claim that Brennan contributed to a leak “ridiculous.”

“It is well known that we use a range of intelligence capabilities to penetrate and monitor terrorist groups,” according to an official statement from the White House national security staff.

“None of these sources or methods was disclosed by this statement. The egregious leak here was to the Associated Press. The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security,” the statement said.

The original AP story, however, made no mention of an undercover informant or allied “control” over the operation, indicating only that the fate of the would-be suicide bomber was unknown. [my emphasis]

Now, there are several problems with this latest White House story. The allegation of a quid pro quo rests on the premise that the Administration was also about to release the information; it’s just a different version of the request to hold the story until an official White House announcement. Furthermore, if the White House didn’t want this information out there, then why brief Richard Clarke and Fran Fragos Townsend, who went from there to prime time news shows and magnified the story?

Meanwhile, John Brennan, who leaked the most damaging part of this (that it was just a Saudi sting), has since been promoted to run the CIA, even though, at least according to James Clapper’s definition, he’s a leaker.

Also, note the language used here: “seized.” Not “subpoenaed.”

That, plus the description of these as “phone records” suggests DOJ may well have relied on a National Security Letter to get journalist contacts, as I’ve long been predicting they’ve been doing.

Update, per the more detailed AP update: Apparently the letter says they were subpoenaed.

Update: Actually, the letter itself doesn’t say they were subpoenaed, and given that no notice was provided, it seems like NSLs are a likely candidate.

Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.

This entire leak investigation was always a witch hunt, because sources in the Middle East were blabbing about it anyway, because John Brennan was blabbing too, and because the White House planned to blab about it the following day.

But that, apparently, didn’t stop DOJ from throwing its most aggressive weapons against Adam Goldman and Matt Apuzzo, who first broke the story.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

13 replies
  1. Jim White says:

    And why are we just now finding out, a whole fucking YEAR after the months for which the records were seized and otherwise obtained? We know from the immediate White House hissy fit that the “investigation” started right away.

  2. joanneleon says:

    Well, as soon as I saw this, I told my fiance “Marcy has been waiting for this”.

    So why did the DOJ do this? And why now?

    Are they after Goldman and Apuzzo or are they after whoever told them about the bomb plot? I’m a bit confused about why they are going after the AP reporters. Intimidation? Make an example of them?

    You’d think that if they wanted to scare the pants off of someone, they’d want to scare the leaker who told AP about it the week before. Since they mention the AP line in the House gallery, do they think it’s someone from the House intel committee? Can we assume that they now know who told AP? Heck, if it was a member of the House, and it’s somebody involved in the Benghazi hearings… nah.

    If they were to charge Goldman and Apuzzo, would they charge them with revealing classified info, or go all the way to the Espionage Act? Hard to believe.

    Sorry for the million questions. I’m kind of thinking aloud.

  3. Snoopdido says:

    In yesterday’s post regarding “the Secrets that Will Remain Hidden in Benghazi”, Emptywheel linked to “the ebook by two former Special Operations fighters that purports to present the “Definitive Report” on Benghazi”. After grabbing a copy and reading through it, I had to laugh when the authors described Brennan this way:

    “It is an open secret in Washington, DC, that John Brennan is a world-class windbag.”

  4. beowulf says:

    “Actually, the letter itself doesn’t say they were subpoenaed”

    Yes it does in paragraph 4 and 5 (what would be the purpose of going through the subpoena regulations if this wasn’t a subpoena?). What’s most interesting is the AP gave Holder a chance to retreat gracefully. The letter doesn’t mention– but the AP certainly knows– that a subpoena of press phone records had to have been personally approved by the Attorney General himself. Also, it doesn’t sound like DOJ did much in the way of negotiating.

    “The Attorney General’s authorization is normally required before the issuance of any subpoena to a member of the news media or for the telephone toll records of a member of the news media…
    Before considering issuing a subpoena to a member of the news media, or for telephone toll records of a member of the news media, Department attorneys should take all reasonable steps to attempt to obtain the information through alternative sources or means. 28 C.F.R. § 50.10(b). In addition, Department attorneys contemplating issuing a subpoena to a member of the news media must first attempt negotiations with the media aimed at accommodating the interests of the trial or grand jury with the interests of the media… Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue.”

  5. Snoopdido says:

    Emptywheel wrote:

    “Update: Actually, the letter itself doesn’t say they were subpoenaed, and given that no notice was provided, it seems like NSLs are a likely candidate.”

    Actually, the AP’s letter does use the word subpoena three times:

    “That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.

    The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The
    regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen.

    We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news. While we evaluate our options we urgently request that you immediately return to the AP the telephone toll records that the Department subpoenaed and destroy all copies.”

    What we don’t know here is whether the AP knows or just assumes that the DOJ used a subpoena issued by a judge, or whether the AP thinks that NSLs are a form of an administrative subpoena self-issued by United States Attorney Ronald C. Machen.

    In either case, the AP is quite right to be upset at the unbelievably overbroad snooping by the US government.

  6. Snoopdido says:

    I just checked the latest version of the AP’s story ( It states:

    “Justice Department published rules require that subpoenas of records from news organizations must be personally approved by the attorney general but it was not known if that happened in this case. The letter notifying AP that its phone records had been obtained though subpoenas was sent Friday by Ronald Machen, the U.S. attorney in Washington.

    William Miller, a spokesman for Machen, said Monday that in general the U.S. attorney follows “all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations” but he would not address questions about the specifics of the AP records. “We do not comment on ongoing criminal investigations,” Miller said in an e-mail.”

  7. Snoopdido says:

    @Snoopdido: I should have included this from that updated AP story:

    “It is unknown whether a judge or a grand jury signed off on the subpoenas.”

    In my mind, this statement still leaves the question of subpoenas up in the air. It may still be the case that what is being referred to as “subpoenas” is a euphemism for NSLs which some think of as administrative subpoenas.

  8. joanneleon says:

    Well, I hope that the other big news organizations kick up a fuss about this.

    When AP says they are considering their options, I hope that legal action is one of them because this could be very damaging to them as an organization. I wouldn’t be surprised if all journalists’ communications are hoovered up and analyzed, secretly, but now this is public, which is an entirely different thing.

  9. phred says:

    Well, at least the AP can demonstrate standing, so they won’t necessarily get tossed out of court as some of their predecessors have…

    I’m taking it as a given that they will pursue this violation of the 1st amendment. I can’t imagine the AP would be foolish enough to let this slide…

  10. orionATL says:

    where bad reporting is involved one must look for and identify the editors as well as the reporters.

    similarly, with this trivial “lapse” of etiquetteby the ap, i.e. daring to publish before the whitehouse announces, being turned by the whitehouse and doj into an opportunity to itimidate and possibly incriminate ap and its reporters,

    it is critical that all and each one of the whitehouse, doj, cia officials involved be identified by name and by role played in this extraordinary abuse of the powders congress gave to the various national security bureaucracies.

    p.s. who says they actually got the records only or first by subpoena. maybe subpoena was done later to cover-up electronic spying by nsa.

    pps. this strikes me as parallel to what the doj, et al. did to the nytimes and some of its national security reporters.

    ppps. hmmm. then there’s the benghazi inquisition by republicans and there’s the earlier republican demand to find out who leaked this other matter.

  11. emptywheel says:

    @beowulf: I’m not convinced that’s actually a reflection of what the DOJ letter said, especially Paragraph 5 (which is talking generally, not specific to this).

    And your point is not valid. The AP’s entire point is this didn’t comply w/any of the guidelines on subpoenaing journos–the prior notice, the negotiation to relay info via other means, the limits on what they get. So no reason to believe anything else was normal here either.

    In other words, if it was an NSL, it would be completely consistent w/the rules on NSLs. If it wasn’t, then DOJ is left explaining why it violated the spirit of their own guidelines on journos.

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