Amid Moves on Shield Laws, Journalist Tells of a 2011 Subpoena Fight

WASHINGTON — A former Fox News journalist disclosed on Thursday that he had been subpoenaed in 2011 for notes and testimony identifying his confidential sources in a leak investigation, adding a new public chapter to the Obama administration’s crackdown on unauthorized disclosures.

Later, in a surprise move, the House of Representatives voted 225 to 183 to approve an amendment to an appropriations bill barring the Justice Department from compelling reporters to testify about confidential sources. Advocates for journalists have tried for years to enact a federal “media shield” bill allowing judges to quash such subpoenas.

The legislation, sponsored by Representative Alan Grayson, Democrat of Florida, has a long way to go before it would become law; in 2009, the House approved a media shield bill, but it died in the Senate. But the latest measure, approved just after midnight on Friday, resonated with the disclosure by the former Fox News reporter and producer, Mike Levine, who now works for ABC News.

Mr. Levine wrote in an article on the ABC News website that he was subpoenaed in January 2011, when he worked for Fox. He fought it rather than comply, he said, and the Justice Department dropped it in April 2012.

“Professional and personal life under the threat of jail for 16 subsequent months is best captured in a note I wrote to myself at the time: ‘I’ve felt like throwing up all day so far. … Just that ‘racing heart’ feeling throughout,’ ” Mr. Levine wrote. “Still, I felt I had to protect my confidential sources.”

The subpoena is the second of its kind to come to light under the Obama administration, which also has tried to force James Risen, a reporter for The New York Times, to testify in the trial of a former C.I.A. officer charged with leaking to him.

A federal appeals court has ruled that Mr. Risen must testify. He has appealed that ruling, and the Supreme Court may announce as soon as Monday whether it will hear the case.

The subpoena to Mr. Levine traced back to a report he filed for Fox News in July 2009 about an investigation into young Somali-Americans from the Minneapolis area who were believed to have gone to Somalia to fight alongside an Islamist extremist group.

Mr. Levine reported that a grand jury had secretly indicted three of the men on terrorism-related charges. The move — actually two indictments and one guilty plea based instead on a criminal “information,” it turned out — was still sealed.

The F.B.I. opened a leak investigation overseen by Eric G. Olshan, a trial lawyer in the criminal division’s public integrity section, according to people familiar with the matter.

In January 2011, prosecutors obtained a grand jury subpoena for Mr. Levine. Attorney General Eric H. Holder Jr. approved the request, after a review by the department’s public affairs chief at the time, Matthew Miller, who said Friday that officials were upset about the leak because sealed grand jury indictments are closely held secrets.

Fox News paid for Mr. Levine’s legal bills.

“We stood by our reporter throughout his defense as we would with any other journalist,” said Irena Briganti, a Fox News spokeswoman.

Mr. Levine was represented by Jay Darden of Patton Boggs, who, along with a lawyer representing Fox, met with prosecutors and exchanged letters and phone calls. Mr. Levine also spoke with them in person but insisted he would not reveal sources, according to people familiar with the matter.

In April 2011, they appealed to Lanny Breuer, the head of the criminal division, and to Mr. Holder. Mr. Darden sent a final letter reiterating that Mr. Levine would not identify his sources that November. They heard nothing for several months, and then Mr. Olshan called Mr. Darden in April 2012 and said the matter was being dropped, the people familiar with the matter said.

Peter Carr, a Justice Department spokesman, declined to comment.

Mr. Darden on Friday said that even if the department declines to imprison a reporter, the use of a subpoena for confidential sources presents a “danger to the First Amendment” by chilling journalists from being aggressive and sources from wanting to talk to them.

There were indications that Mr. Levine’s lawyers may also have fought a court battle asking a judge to quash the subpoena, but those court records are sealed and it is unclear what happened.

There were no public signs that prosecutors ever sought Mr. Levine’s phone records, as has happened in some other leak investigations.

The new disclosure comes a year after an uproar last May over tactics used in two other leak investigations.

Mr. Holder has since revised the department’s regulations to make it harder to subpoena for a reporter’s notes, testimony or phone records in a leak case. He also endorsed reviving efforts to pass a media-shield law.