Three points on this story:
- The subpoena of phone records is probably legal. I wouldn’t say anything definitive until we know all the details, but under existing law the First Amendment doesn’t provide a shield for journalists and Congress hasn’t created a statutory shield. A subpoena, unlike a search warrant, doesn’t require judicial approval.
- And, yes, the attacks from Republicans in Congress who supported the Bush administration’s actually illegal warrantless wiretapping and are a major part of an institution that can only be bothered to counter presidential powers when presidents make the political mistake of trying to advance the ball in a pro-civil liberties direction, are staggeringly disingenuous.
- Having said both of these things, this doesn’t mean that I agree with Orin Kerr that this is therefore a “non-story.” The First Amendment is a floor, not a ceiling — even assuming arguendo that the subpoena was legal, this doesn’t make it an appropriate exercise of executive power. There are good reasons to spy on the activities of journalists only in cases where the public interest in the investigation is very compelling, and in such cases the investigation should be conducted on the narrowest possible grounds. Going after whistleblowers who have provided valuable information to the press (and hence the public) does not strike me as a particularly compelling public purpose, and on its face the investigation in this case strikes me as, at a minimum, overbroad. This is an important story, and a probable abuse of executive power, even if the administration did nothing illegal.
UPDATE: I have more on this here.