Reporters’ Phone Records Subpoenaed : Senate: Journalists broke Anita Hill allegations against Clarence Thomas. Special counsel is probing source of the leaks to them.

A special Senate counsel investigating news leaks on Monday subpoenaed telephone records of the two reporters who broke the story last fall of Anita Faye Hill’s allegations of sexual harassment against Supreme Court nominee Clarence Thomas.

The two reporters and their news organizations, Timothy Phelps of Newsday and Nina Totenberg of National Public Radio, argued that the new order violates the First Amendment rights of a free press and is a politically dangerous abuse of senatorial power.

“We certainly are going to challenge the subpoena on constitutional grounds, either before the Senate Rules Committee or the courts. And we will argue that journalists must be free to use their telephones and, if they are not, we are all at risk,” said Floyd Abrams, the attorney for Totenberg and National Public Radio.

“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,” Phelps said.

“We will fight this just as we have fought every subpoena up until now,” Totenberg said. “Nobody has been punished other than being forced to pay Gargantuan legal bills. But if he (the special counsel) succeeds here, he would get some information, though it may be of dubious value.”

The subpoena was ordered by special counsel Peter E. Fleming, who was hired to learn the sources of stories about Hill’s charges against Thomas and of leaks about the “Keating Five” ethics investigation that began in 1989.

Fleming, contacted by phone, declined to comment on the subpoena or the status of the investigation. Fleming earlier had subpoenaed phone records from the two reporters but they refused to comply. Apparently choosing not to press that refusal, he has subpoenaed the information from Chesapeake & Potomac Telephone Co. C&P; officials were unavailable for comment late Monday.

According to attorneys, the subpoena demands that the phone company assemble records of all calls made by both Newsday and National Public Radio, as well as the personal records of Phelps and Totenberg between Sept. 23 and Oct. 6, 1991.

The subpoena states that the records are to be assembled but not yet turned over to Fleming, apparently in the hope that agreement can be reached with the two reporters to “redact from the record all calls not relevant to this investigation.”

Newsday attorney Ted Olson said that, like Abrams, he will pursue his objections in the Senate Rules Committee and the courts. “This is the Senate of the United States demanding that a news organization produce every phone call it made over a two-week period. . . . I think the Senate may want to consider if that is what they want to stand for.”

Newsday publisher Robert M. Johnson said in a statement: “This is a gross, dangerous and destructive invasion of the reporting process and an assault on all Americans who believed that they were entitled to the information that we reported.” He called the subpoena “a violation of the privacy of every individual contacted by Newsday or Mr. Phelps for any reason whatsoever during this period.”

Jane Kirtley, executive director of the Reporters Committee on Freedom of the Press said that the demand for reporters phone records, once a fairly unusual request, has become more common recently.

But she said she is not certain whether the C&P; subpoena is likely to yield any useful information to Fleming, since it is unclear whether local phone calls are individually listed in the company’s logs.

“I don’t know what he is expecting to find,” she said. “I can’t tell if this is the last gasp of a desperate investigator or if this shows a relentless desire to pursue and persecute the press.”