Atty. Gen. Eric H. Holder Jr. testifies on Capitol Hill on Wednesday. (Brendan Smialowski / AFP-Getty…)
WASHINGTON — Facing questions about the Justice Department's secret seizure of reporters' phone records, the White House says that it will renew its push for legislation that would offer federal protections to journalists and their sources.
White House spokesman Jay Carney said Wednesday that the White House had asked Sen. Charles E. Schumer (D-N.Y.) to reintroduce the so-called media shield bill, which would in some cases prevent reporters from being compelled to name confidential sources.
Schumer's last attempt to pass the bill faltered nearly four years ago with little aid from the White House, and it has not been a priority for Congress or the president since then. But news that the government had secretly subpoenaed two months of phone records from more than 20 Associated Press telephone lines appears to have sparked new interest in the effort.
The White House has said the president did not know about the subpoenas and has not been involved in the criminal investigation. Atty. Gen. Eric H. Holder Jr. also says he was not involved in the decision. In testimony on Capitol Hill on Wednesday, Holder said he recused himself from the investigation about a year ago, although he acknowledged that he did not put the recusal in writing.
Deputy Atty. Gen. James M. Cole, whom Holder assigned to oversee the leak investigation, approved the subpoenas, Holder said.
Holder strongly defended the ongoing investigation. "I have faith in the people who are responsible for this case," he told the House Judiciary Committee. "They are aware of the rules and followed them."
But members of the committee from both parties were critical of the subpoenas.
"It seems to me clear that the actions of the department have, in fact, impaired the 1st Amendment," said Rep. Zoe Lofgren (D-San Jose). "Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence because those confidential sources are now going to be chilled in their relationship with the press."
The White House this week has sought to use the president's past support for a federal shield law to quiet the criticism over the Associated Press subpoenas, which were issued as part of a leak investigation. Holder and Carney on Wednesday cited that record as evidence of the administration's respect for unfettered investigative reporting.
But the president's views on how best to protect journalists from prosecution and intimidation, while also balancing national security concerns, appear to have evolved in office. As a senator and candidate in 2008, Obama said he supported a shield law and specifically noted that he believed a court, not the executive branch, should determine whether a confidential source should be protected.
"And that simple principle that there's somebody watching the watcher, that there is not simply somebody in the White House somewhere who is making unilateral decisions about how we strike the balance between our civil liberties and our safety … that simple principle is one that we can't give up and we don't have to give up," Obama said at an Associated Press forum in 2008. "Because it turns out that, actually, the courts, generally, are pretty good at this stuff."
But as president, Obama sought to curb the role of the courts and broaden the executive branch power.
The initial bill proposed by Schumer, along with the late Sen. Arlen Specter (D-Pa.), required the government to exhaust other means for finding the information before compelling a reporter to break a confidentially agreement. Prosecutors would have had to go to a court before subpoenaing a reporter, leaving a judge to determine whether national security considerations trumped free-press concerns. The legislation carved out narrow exceptions for cases involving imminent danger or a terrorist attack.
The White House tried to add to that list any leak case involving a matter of significant harm to national security. The administration changes would have instructed judges to largely defer to the government on whether the matter would have caused such harm.
At the time, Schumer said the White House's "opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation." Press advocates said the change would have gutted the legislation.
A compromise version eventually won support from the White House, the Senate Judiciary Committee and newspaper groups. Still, lawmakers vowed to make changes on the floor — expressing continued concerns about the national security exemptions, as well as whether the protections should apply to bloggers and other nontraditional journalists. When WikiLeaks began publishing a trove of government records, the appetite for the bill disappeared.