One of the lead federal prosecutors behind the Justice Department’s sweeping seizure of the Associated Press’s phone records is deputy chief of the criminal division Jonathan Malis—a hard-charging 15-year veteran of the U.S. Attorney’s Office who is known among colleagues for a single-minded, even zealous, pursuit of his criminal targets. And there’s perhaps no better illustration of his aggressive style than the fact that he once had a caustic, highly personal exchange with Eric Holder, who at the time was a defense lawyer in private practice but is now the attorney general—that is, Malis’s boss.
It was 2007, and Holder was representing Chiquita Brands, which the Justice Department had charged with material support of terrorism for making millions of dollars in payments to Colombian paramilitary groups. Ultimately, Chiquita pleaded to lesser charges and agreed to pay a $25 million fine. At the sentencing hearing, Holder accused Malis of an overzealous prosecution. “I think that certain things said by Mr. Malis are either unfair, incorrect, or draw inappropriate inferences,” he intoned. “Frankly, I don’t think they are worthy of the office he represents ... Great power is given to prosecutors, and the single-minded focus of some on the prosecution team to get this company without consideration of what I believe are rather obvious nuances is alarming.” Shot back Malis: “I am not going to respond to what I view as the ad hominem attack on this prosecutor.”
Today, of course, the tactics of Malis and other prosecutors are under scrutiny for intruding on the sanctity of the reporting process at one of the country’s most influential news organizations. Members of the media, civil liberties groups, and some prominent members of Congress have characterized the Justice Department’s subpoenas of the AP’s phone records as shockingly broad and unnecessary. They say such actions are bound to have a significant chilling effect on the free flow of information. But those who know Malis say he is unlikely to be moved by the criticism. “I can tell you one thing,” says one former prosecutor who worked with Malis, “he won’t be shedding any tears for the Fourth Estate.” (A DOJ spokesperson said Malis was not available for comment.)
The controversy stems from the AP’s scoop in May 2012 about a CIA operation that foiled an al Qaeda plot in Yemen. After the story appeared, subsequent reports revealed that the plot was disrupted by a mole who had penetrated al Qaeda in the Arabian Peninsula. It is rare for Western intelligence organizations to succeed at placing human spies inside al Qaeda. The AP story, officials have told The Daily Beast, compromised the ability of the informant to be used in future operations. In investigating the leak, Malis and his team subpoenaed records from five reporters on 20 different phone lines, including one used by AP reporters at the House of Representatives Press Gallery.
Holder himself was recused from the leak inquiry. But he has described the leak as one of the most serious he has encountered in his career and has publicly defended the steps his department took in investigating it. Some of his associates, however, who are perhaps in a position to speak more freely, have been more skeptical of the way in which prosecutors went about trying to obtain the phone records. “I think the subpoena is probably defensible,” says Matthew Miller, the former director of the Justice Department’s Office of Public Affairs under Holder. “But had I reviewed [the subpoenas] I would have made recommendations about narrowing it somewhat.” He adds: “As someone who deals with reporters, it makes no sense looking for records from the House gallery.”
Indeed, the Office of Public Affairs plays a key advisory role in helping the attorney general determine the scope of a subpoena involving reporters or even whether it should happen altogether. To calibrate the balance between aggressively investigating leaks and allowing journalists to do their jobs, the DOJ has developed careful protocols to ensure that the senior leadership of the department closely supervises investigations involving reporters. Under the guidelines, a subpoena or other investigative measures must go through several layers of approval and ultimately be signed off on by the attorney general or the deputy attorney general in his absence. And one key player in this approval process is the director of the Office of Public Affairs, who is uniquely qualified to advise the attorney general on the interests of the press.
At the time of the AP subpoena, Tracy Schmaler, a veteran Washington communications specialist, held the position. In the past, Schmaler, like many of her predecessors, had closely scrutinized prosecutors’ requests for media subpoenas. But in the case of the AP leak investigation, Schmaler, like her boss, Holder, was recused (because both had been interviewed by the FBI in the case). Some at the Justice Department speculate that if Holder and Schmaler had been involved, the subpoenas likely would have been narrowed. At the very least, these sources say, the department would have planned a more effective rollout of the explosive news.
In the end, the decision fell to James Cole, the deputy attorney general, a former prosecutor who later became a highly respected white-collar defense lawyer in Washington. Cole, who once served as a special counsel investigating the House Bank scandal, is no political naif. But Justice officials say he is advised by a coterie of former assistant U.S. attorneys with somewhat insular prosecutorial mindsets.
“These are good prosecutors, but they have no sense of the world beyond the walls of the Justice Department, which is how something like this happens,” says a former senior DOJ official in the Obama administration. In other words, they may have been too much like Jonathan Malis to serve as a check on his aggressive instincts.
Editor's Note: A previous version of this story stated that in Tracy Schmaler's absence, her deputy handled the A.P. subpoena issue. It is unclear who if anyone in the Office of Public Affairs reviewed the matter.