http://www.familysecuritymatters.org/publications/detail/the-law-eric-holder-ignored
The Justice Dept. rules for press subpoenas ….
Attorney-General Eric Holder talks about adopting new rules for how the feds subpoena reporter records. This is a typical Beltway ploy, one that “fixes” violations of old rules on the books by passing new ones. Doing so implies that there is a loophole in existing law that needs closing.
But, inconveniently for Holder, there has been since 1980 a DOJ press subpoena regulation (28 C.F.R. sec. 50.10) on the books. And Eric Holder clearly violated it. Rules in the Code of Federal Regulations carry the force of law, and thus bind those subject to them.
The full set of rules merits a read, but here is the money part:
(a) In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.
(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.
(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.
(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General….
In cases of exigent national security, the A-G, or a senior national security official, can contact the press & request that the story be held. When six American diplomats were sheltered in Tehran by Canadian diplomats, reporters sat on the story for some three months, until the Americans were safely exfiltrated back to the States.