Stop the Subpoenas for Good

HAVING first subpoenaed the phone records of two reporters who broke the Anita Hill story last fall, the Senate special counsel Peter Fleming later this week thought the better of it and said he would not seek those records without backing by the Senate Rules Committee.

That seems an instance of temporary sanity in the Senate's investigation of press leaks in the Clarence Thomas confirmation process.

Given that much of the business of Congress on both sides of the aisle operates on press leaks, the investigation is itself hypocritical. But given the bitter feelings during Mr. Thomas's confirmation last fall, it could be brushed off as a face-saving gesture - a scare tactic at worst.

Yet special counsel Fleming wants names - at any cost. With the subpoena last month of two reporters, Nina Totenberg of National Public Radio and Tim Phelps of Newsday, he took the Senate into some dangerous First Amendment waters. Ms. Totenberg and Mr. Phelps rightly refused to divulge their sources. That should have ended matters. But with the subpoena of private phone records, and another subpoena of a Washington Times writer who reported a "Keating Five" leak, which asks for any documents, research, and tape recorded interviews conducted, Mr. Fleming, a New York attorney, seems determined to push on regardless of the constitutional questions that have been raised.

The Senate Rules Committee can and should end this repugnant drama now. The precedent - arbitrary and political - of commandeering private phone records to smoke out leakers (which are not a criminal offense) is one that no responsible public official wants to set. National security isn't at stake in this case - save the important national security of keeping the press free and uninhibited by government threats and bullying.

From the moment Anita Hill's allegations of sexual harassment by then Supreme Court nominee Clarence Thomas were made public there was an undercurrent of hostility toward the press for reporting the leak. This is not a new sentiment.

However, the messengers can't be faulted for reporting facts of importance to citizens. That's the job of a free press.