The DOJ’s investigation of leaks to reporters took another turn this weekend when a public disagreement broke out over whether or not the agency had notified News Corp of subpoenas for phone records.
Writing at the New Yorker, Ryan Lizza follows up his excellent reporting last week by recounting the new wrinkle in the case. The DOJ is required to notify a news organization when it subpoenas their phone records. But it appears that didn’t happen in the case of Fox News. At least that was the story until the administration gave this response to CNN last Friday:
In the investigation that led to the indictment of Stephen Kim, the
government issued subpoenas for toll records for five phone numbers
associated with the media,” a law enforcement source told CNN.
government provided notification of those subpoenas nearly three years
ago by certified mail, facsimile and e-mail.
The next day there were reports which seemed to verify the claim but with an important caveat. News Corp, Fox’s parent company, had received notice from the DOJ in 2010 but had not informed Fox News until last week. This seemed like an odd oversight on the part of News Corp. but the failure was non longer in the hands of the DOJ.
And that’s when the story took another turn. Here’s Lizza’s report:
There was one person who was not satisfied with this account:
Lawrence A. Jacobs, who was the actual legal counsel for News Corp. back
in 2010 when Justice allegedly sent the notification. Almost
immediately, Jacobs went public with a story that contradicted the
account being peddled jointly by Justice and News Corp.
He told NPR, the Los Angeles Times, and the New York Times
that he never received the notification, and that if he had he would
have immediately told Roger Ailes, the head of Fox News. On Monday,
Jacobs told me the same thing.
According to Lizza, News Corp. and Jacobs had “heated conversations” over the weekend. Who came out on top in those conversations can be judged by the revised statement News Corp. issued Sunday “While we don’t take issue with the DOJ’s account that they sent a notice
to News Corp., we do not have a record of ever having received it. We
are looking into this matter.”
So to recap all of this: DOJ claims they notified Fox they were subpoenaing their phone records. News Corp first claimed they had received the notice, then after their former legal counsel denied ever having seen it, retracted that claim and said they had no record of it.
Why would News Corp. back up the DOJ if they had no record of the notice? Here Lizza engages in some speculation about an ongoing DOJ investigation of News Corp. under the Foreign Corrupt Practices Act. Lizza suggests News Corp. may be hesitant to rock the DOJ’s boat at a moment when their lawyers are working out some kind of settlement. It’s worth reading but of course no one will speak on the record.
For the moment what we know is that it appears the DOJ did not transmit the notice of subpoena as required.