Justice admits violation of subpoena approval regulations

Reporter's Privilege | Feature | October 20, 1997

Justice admits violation of subpoena approval regulations

10/20/97

WASHINGTON, D.C.--The U.S. Department of Justice recently admitted that it violated its own regulations in pursuit of a journalist's phone records.

The office of the U.S. attorney in Brooklyn subpoenaed the phone records of James Sanders, an investigative reporter who wrote a book on the crash of TWA Flight 800, as part of an investigation into the crash by a federal grand jury in Brooklyn. The grand jury was investigating allegations that Sanders had tampered with evidence when he obtained two pieces of seat cloth from the airplane wreckage from a source he identified only as "Hangar Man." But Valerie Caprioni, the assistant U.S. Attorney in charge of the investigation, and Benton Campbell, another assistant U.S. attorney, failed to obtain permission from Attorney General Janet Reno before seeking the subpoena.

The Justice Department's regulations state: "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." The regulations also advise that "all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media."

However, Caprioni told Sanders' attorney that despite his claim that he was doing research for the Riverside, Calif., Press-Enterprise as well as his own book on the crash, she did not consider Sanders a journalist and therefore the Attorney General's permission was not required.

"We can find no support for the assertion that Mr. Sanders is a member of the media," she said. Her conclusion apparently was based on a reference to Sanders in the Press-Enterprise describing him as "a Virginia-based writer and retired Southern California policeman." She also said that a computer check of newspaper and magazine databases revealed no articles with Sanders' byline.

Less than a month after going after Sanders' records, the FBI subpoenaed a copy of his contract with Zebra Books, confirming that he was in fact a working journalist protected by the Justice Department's guidelines. The DOJ also requested and received a letter from Editor & Publisher explaining why Sanders should be considered a journalist. Based on the new information, the Justice Department concluded that the unauthorized subpoena had been a mistake.

"We didn't think he was a journalist when the subpoena was issued in March," John Russell, a DOJ spokesman, told Editor & Publisher. "But we subsequently determined he was a bona-fide journalist."

The regulations allow "administrative reprimand or other administrative action" against DOJ employees who break the rules. Russell declined to say whether or not anyone would be disciplined in connection with the matter. (Media Attorney: Jeffrey Schlanger, New York City)