The Justice Department's seizure of AP's phone records appears to have been legal, said CNN senior legal analyst Jeffrey Toobin. "A lot of people think the First Amendment protects journalists from having to disclose this sort of information," he said Monday. "Not true. Especially under federal law. There is no privilege to protect this kind of information."
But administrations since the Nixon White House have exercised restraint, he said. "They have said, 'Look, we will do whatever we can to avoid having to subpoena journalists.'"
President Obama had indicated he would follow suit. A day after he entered office, on January 21, 2009, Obama said that he would embrace openness.
"Transparency and the rule of law will be the touchstones of this presidency," he vowed.
That promise has not been kept, legal analysts contend. The Obama administration has used the Espionage Act, which was passed in 1917, to target suspected leakers in six cases, twice the number undertaken by all previous administrations combined.
Toobin said the AP's subpoena was particularly egregious. "I have never heard of a subpoena this broad," he said. "The administration is not violating the First Amendment, but they are certainly doing more than has ever been done before in pursuing the private information of journalists, and we will see if there is any political check on them, because there doesn't appear to be any legal check on what they're doing."
Such seizures risk turning the news media's news-gathering process into an investigative tool of the government, said Gene Policinski, senior vice president and executive director of the First Amendment Center. "Reporters become effectively recorders of contacts and information for the prosecution, not at all what journalism is supposed to be."
But a former spokesman for the Department of Justice who worked as an aide to Holder defended the government's actions. "What they're trying to find out through this investigation is what government official broke the oath that they signed to protect classified information," said Matthew Miller, who left the Justice Department in 2011 and is now a public affairs consultant in private practice. "There is no reporters' privilege in law protecting their records."
The Justice Department could have been even more aggressive, forcing the reporters to testify and throwing them in jail had they refused, he said.
Besides, federal authorities have an incentive to find out who leaked the story that goes beyond the case, he said. "The government has to send a signal to its employees that these laws mean something, and they will investigate and prosecute you for violating them."
Whether a federal shield law would keep the Justice Department from carrying out such actions "would totally depend on what the federal shield law looks like," Miller said, noting that several versions have been proposed. Some would prevent reporters from ever being subpoenaed, others would allow judges to carve out exceptions in cases of national security.
White House press secretary Jay Carney reiterated on Tuesday that the administration had no involvement in any criminal investigation by the Justice Department.
Presidential historian Douglas Brinkley predicted that the move will have little long-term impact. "It seems to be a kind of a strange, isolated case," he said in a telephone interview. He predicted the Obama administration would back off rather than court further outrage.