
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, March 17, 1992                   TAG: 9203170283
SECTION: NATIONAL/INTERNATIONAL                    PAGE: B8   EDITION: METRO 
SOURCE: The Washington Post
DATELINE: WASHINGTON                                LENGTH: Medium

REPORTERS' TELEPHONE RECORDS SUBPOENAED

The special Senate counsel investigating leaks of Anita Hill's charges of sexual harassment against Supreme Court Justice Clarence Thomas on Monday subpoenaed all telephone records of the two journalists who first reported the allegations for the two-week period before the charges were disclosed.

The action prompted strong protests from attorneys for Timothy Phelps of Newsday and Nina Totenberg of National Public Radio, who said they were considering asking the Senate Rules and Administration Committee or a federal court to intervene and block the special counsel's action. The subpoenas cover the journalists' home telephones and those of their news organizations.

"This is a very, very dangerous precedent," said Theodore Olsen, attorney for Phelps, who added that he probably will appeal first to the Rules Committee and then the Senate itself, if necessary.

"If a journalist cannot use her telephone without fear of government surveillance . . . the First Amendment is imperiled," said Floyd Abrams, attorney for Totenberg. "We view it as a dangerous assault on First Amendment liberties and we will challenge them before the Senate Rules Committee or in the courts."

The subpoenas were issued to the Chesapeake and Potomac Telephone Co., which will have to turn the records over to special counsel Peter Fleming unless authority for the subpoenas is revoked, Olsen said. Both Olsen and Abrams said there is little if any precedent in law dealing with cases of this kind.

Fleming, who was hired by the Senate to investigate leaks of confidential documents about Thomas during his confirmation hearings last fall, subpoenaed all phone records from Sept. 23 to Oct. 6, 1991.

Oct. 6 was the day that Phelps and Totenberg ran their stories disclosing Hill's allegations that Thomas sexually harassed her while she worked for him at the Education Department and Equal Employment Opportunity Commission during the 1980s.

The stories created an uproar, resulting in a second round of hearings on Thomas's nomination. Thomas, who denied the allegations, was subsequently confirmed by a close vote of the Senate. Under pressure from Republicans who were furious about the charges against Thomas, the Senate then voted to investigate the leaks.

Earlier this year, Phelps and Totenberg appeared before Fleming in response to subpoenas, but refused to disclose sources of their stories or to turn over any records. Officials of several outside advocacy groups that opposed Thomas's nomination also have been questioned by Fleming, as have several senators and a number of Senate staff members.

"I think it's outrageous," said Totenberg. "In my view there should be no right to rummage through my phone records or my husband's records, when there's not even an allegation of criminal activity."

"These are police-state tactics and are all the more outrageous because there is no charge that I or anyone at Newsday broke any laws or violated any Senate rules in the reporting of this story," said Phelps.

Neither Fleming nor Rules Committee leaders were available for comment late Monday.

by CNB