Orin Kerr suggests the story of the US Department of Justice seizing AP phone records isn’t one, wraps up with a flourish, hands out a few pokes at anti-government paranoia, and then asks a series of what he undoubtedly takes to be particularly incisive and penetrating questions:
Based on what we know so far, then, I don’t see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months — and if so, what was the proper length of time the records should have covered?
I get that many people will want to use this story as a generic “DOJ abuse” story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don’t yet see a strong case that collecting these records was an abuse of the investigative process.
This summation and dismissal of the ‘non-story’ of a major news organization having its phone records seized by the legal wing of the executive branch is remarkable for its straightforward intention to treat the questions above as merely rhetorical: Of course, the DOJ is not ‘wrong’ to investigate aggressively, using all means at its disposal, whistleblowers providing information to the press. It should therefore seek to identify them relying on problematic doctrines of search and seizure of personal information provided to third-parties. These searches should be broad and extensive, casting as wide a net as possible.
In this conception of executive power, there is a visible asymmetry: the threat might be perceived dimly, but the response is clear and powerful, with few limits on its application.
For Kerr, therefore, it is a ‘non-story’ when a massive exertion of executive branch power is directed at a component of the polity vital to its information gathering and reporting functions, one of whose central functions has been exercising vigilance and oversight on that same power; it is a ‘non-story’ when exercises of executive power directed toward dubious ends such as prosecuting whistleblowers might result in an attenuated and impaired domain of political discourse. This is of little concern to Kerr in his reckonings of whether legal propriety has been kept, of whether there has been an ‘abuse of the investigative process.’ But how could there be one, when the context of the ‘investigative process’ matters so little?