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‘You are running it regardless’

Today in uncomfortable journo-flack relations…

A testy exchange between USA Today reporter Brad Heath and the Justice Department's chief spokesman, Brian Fallon, has been making the rounds, after copies of their emails leaked online.

Twitter has jumped on this, which appears to show Fallon, having failed to kill a story Heath was working on, turning around and stonewalling him by refusing to provide answers that would discredit his reporting:

A senior official at the Justice Department now tells me Heath was working on a follow up to recent, declassified opinions from the Foreign Intelligence Surveillance Court that said it was misled about the scope of the National Security Agency's surveillance operations. Specifically, Heath was trying to suss out whether any Justice Department attorneys—who represent the NSA before the FISC—had been investigated for committing professional misconduct. (Heath had earlier filed a Freedom of Information Act with the Justice Department for records of such investigations, and found none. A copy of that FOIA request was included with the leaked emails this morning.)

But the Justice Department saw this as a "dog bites man" story, claiming there was no evidence that its lawyers had committed willful misconduct, so why would its Office of Professional Responsibility open any investigations? Its lawyers, the DOJ says, were simply doing their job—and relying on what the NSA swore to in its affidavits. (In other words: "If anyone should be on the hook for making misrepresentations to the court, it should be the NSA, not us!")

Fallon, trying to persuade Heath to kill the story, made his case and offered to line up "third party, independent sources" who could back up his claim that there was "no 'there' there." (Basically: "Don't take my word for it, let me make some calls and put you in touch with other people who can back me up and tell you there's no story here.")

When Heath indicated he'd be happy to talk with them, but was going to run the story anyway, Fallon supposedly decided it wasn't worth his time to make the additional sources available. (Basically: "Well if you're going to run the story no matter what, then I won't waste my time asking my buddies to give you a call. I'll just wait and see what your story says and deploy them for damage control, instead.")

As for how the emails leaked online in the first place… A source tells me they were uploaded to the newspaper's communal DocumentCloud account. Some recently uploaded screenshots seem to corroborate this, suggesting someone with access took it from there.

UPDATE, 3:05 P.M.: Here's a statement from Fallon:

Brad is reporting on the lack of an OPR inquiry, but that only seems newsworthy if one might be warranted in the first place. It isn’t. For the last several days, we asked Brad to exercise discretion rather than write a story that leaves a false impression that there was any evidence of misconduct or basis for an inquiry. We proposed putting him in touch with people who could independently explain why no inquiry was warranted in hopes it might persuade him. When it became clear he intended to publish his story regardless, there was no point in asking any of those people to reach out.

UPDATE, 3:53 P.M.: Heath's story is now live.

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