In an interview with Fox News’ Greta Van Susteren last night, Rep. Trey Gowdy (R-SC) threw cold water on hopes that the Justice Department’s surveillance of Associated Press reporters’ phone records could lead to legislation preventing similar incidents in the future. Gowdy noted that the surveillance occurred in no small part because Republicans demanded such an investigation in 2012:
GOWDY: Greta, you were an attorney. There are lots of privileges — husband-wife, priest-penitent, attorney-client, none of them unqualified. So when you have a major national security leak, which is a compelling issue, and you juxtapose that with the right of the media to do its job and provide oversight, there’s a conflict. And there’s no federal statute on point. But the Supreme Court has said if there is a compelling interest, which there certainly is in national security cases, and the information is relevant which it has to be to justify a subpoena, and you have no alternative means of getting the information, then the Department of Justice had no choice. . . .
Think back a year ago. We had the attorney general and other Department of Justice employees, and we grilled them over national security leaks. And here they are doing what we asked them to do, investigate the leak.
While Gowdy’s admission that Republicans supported a probe into national security leaks like the one that led to the DOJ probe of AP is welcome, his willingness to largely excuse DOJ’s actions does not bode well for reform. When journalists face surveillance by law enforcement, many sources will be too frightened to talk to reporters, and that will lead to the public being less informed. The AP probe presents a strong argument for requiring law enforcement to obtain a warrant from a judge before they can obtain phone records from journalists — indeed, DOJ itself should support such a requirement, because a judicially issued warrant enables them to resist scandal after their investigations become public — but such a reform will almost certainly require an act of Congress.
Although there were initial signs that congressional Republican lawmakers would react to the DOJ probe with their typical degree of outrage, many GOP lawmakers are now responding with a collective “meh.” Sen. John Cornyn (R-TX), the second highest ranking member of the Republican caucus, said that he has “questions” about the AP surveillance, “but I’m wiling to wait and see how this plays out, whether it was narrowly targeted or whether it was a net that was too broadly cast.” Sen. John McCain (R-AZ) similarly offered up an uncharacteristic willingness to wait “before offering an opinion.”