POLITICS
06/04/2013 03:19 pm ET Updated Jun 04, 2013

The Obama Justice Department's First Journalist Subpoena

WASHINGTON -- In what was almost certainly the first time the Obama administration subpoenaed a journalist to testify before a grand jury, federal prosecutors wound up letting the reporter off the hook.

The reason: I had class.

Back in 2009, when I was a senior at Catholic University in D.C., I was subpoenaed to testify in front of a grand jury by the U.S. Attorney's Office for the District of Columbia.

A few months before the subpoena was issued, in November 2008, I had written a story for the school's student newspaper about students being assaulted at a now-defunct bar that was popular with underage students. In a Jan. 22, 2009, letter addressed to the student newspaper's office, Assistant U.S. Attorney Maia Miller wrote that I "may have knowledge or information relevant to the Grand Jury's investigation" into the assault. She wanted me to testify.

It's worth noting here that the U.S. Attorney's Office in D.C. is unique. Unlike other federal prosecutors, those based in D.C. prosecute both local and federal crimes. So in addition to prosecuting political corruption and national security cases, they also take care of the more mundane local crimes that are handled by district attorneys everywhere else in the county.

My testimony before the grand jury, as compelled by Miller, was to take place on the morning of Feb. 10.

There was only one problem. I had class that morning. Evidently, because a number of other students who had actually witnessed the assaults were available to testify, my testimony wasn't deemed necessary, and the subpoena was not enforced.

Instead, I met with the federal prosecutor and two police officers the day after the grand jury was scheduled to take place. I remember some confusion over whether I had actually been at the bar the night of the assault (I hadn't). They asked for the name of a student I quoted who was assaulted, telling me they didn't care about underage drinking. I declined to provide a name, and pointed out that my story indicated the student had been scheduled to meet with prosecutors.

It wasn't until after I graduated and began covering the Justice Department that I learned about DOJ's internal rules for subpoenaing members of the media. There's no indication that my student journalist status triggered the DOJ's protocols and that prosecutors got permission from DOJ headquarters before subpoenaing me along with students who actually witnessed the assaults.

"Based on our records, the police paperwork, and the recollections of the prosecutor, it is unclear whether you were subpoenaed because there was a belief by law enforcement that you had witnessed the event or because of an article that you wrote for the student newspaper," a U.S. Attorney's Office spokesman told me in a statement.

While the Justice Department's decisions to subpoena the phone records of Associated Press journalists and treat a Fox News reporter as a co-conspirator to obtain his emails through a search warrant have rightly gotten a lot of attention, former DOJ officials say most journalist subpoenas, like mine, are much more routine. Sometimes they're seeking footage that aired that they want to use in a criminal case. Sometimes they'll want a reporter to testify about stories they wrote or interviews they conducted.

When stories don't involve confidential sources, judges have mostly sided with the feds. During the Obama administration, a contract writer for The New York Times was forced to testify about her on-the-record interviews with a purported terrorist in his perjury trial. In another case, a local television journalist was forced to testify about her interaction with a woman on trial for extorting Louisville basketball coach Rick Pitino.

Many of the media subpoenas that go through the internal Justice Department protocol, former officials said, are cases in which the reporters have agreed to turn over material but want a subpoena to officially compel them to do so.

"Say there is a murder and a reporter, a TV reporter for example, gets footage that they air on TV of a suspect talking about it," former Justice Department spokesman Matt Miller told The Huffington Post. "The Justice Department wants to use that footage at trial, and you go ask the TV station and sometimes they'll just say yes and sometimes they'll say, 'Yeah, we'll do it, but we'd be more comfortable if you gave us a subpoena.'"

"You can understand why the media would want a subpoena, it sets a precedent," said former spokeswoman Tracy Schmaler. "That was my experience."

Here's the full statement from the U.S. Attorney's Office on my 2009 subpoena:

"Our records show that you were among numerous witnesses, some of whom were students, who were involved in the investigation of an assault that took place on November 11, 2008, at the Cardinal's Nest, a bar just outside of Catholic University's campus. According to the government's evidence, the defendant punched three students inside and outside the bar; he then left the scene and went to a nearby pizza store, where he assaulted a fourth person. He was arrested soon afterward. The defendant was found guilty of four counts of simple assault and sentenced in February 2010 to a total of 600 days of incarceration.

"Based on our records, the police paperwork, and the recollections of the prosecutor, it is unclear whether you were subpoenaed because there was a belief by law enforcement that you had witnessed the event or because of an article that you wrote for the student newspaper. The notice of subpoena states that our understanding was that 'you may have knowledge or information relevant to the Grand Jury's investigation.' Records show that you did come to the U.S. Attorney's Office on Feb. 11, 2009. However, you were not called before the Grand Jury and the subpoena was never enforced. We also have nothing in our records to indicate that you provided a statement or any relevant information to our office. In fact, based on the records and recollections, by the time you came here, the investigation was in the process of wrapping up and law enforcement had already conducted numerous witness interviews and the government already had a solid case -- as evidenced by the defendant's eventual conviction."

Read the subpoena below:
Ryan Reilly Subpoena

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