Nor, in doing so, did the DOJ follow its own procedures which should have included negotiation and notification of the subpoena to AP, which would have allowed AP to seek judicial review. The subpoena was of course sent to a third party or parties that had the records.
The policy which exists on paper is very reasonable and I would think anyone would allow that it protects against abuse. But the DOJ did NOT FOLLOW that policy. The only times when you are not supposed to notify under the policy are when doing so would prejudice the investigation, and how can that be supported here? DOJ has said that they did this well after the fact. Everyone knew they were investigating. AP did not have control over the phone records and nothing could have been altered in the phone records. Therefore nothing about notice could have prejudiced the investigation.
So the DOJ explanation doesn't wash. The only real reason for not following their own policy would have been so that AP couldn't seek judicial review, and it's almost certain that a judge would have demurred at some of this, such as getting the records for the AP phone in the House of Representatives and getting all the phone records for the main switchboard numbers. Really now.
It stinks to high heaven. If the regs as codified in 1980 were being followed as written, this would not have happened. No one is questioning that DOJ should have investigated the leak. What is improper here is the secret subpoena of a pretty broad range of press phone records, including the main access line, private lines and the AP line in the House.
Further, Holder is now defending this, and he shouldn't. Lastly, he said he recused himself, but he couldn't say when and he didn't do it in writing. That makes things stink even worse.
This is not going to go away and it shouldn't.
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