The breeze of accountability flows toward Eric Holder.
U.S. Attorney General Eric Holder remains in the eye of a largely self-inflicted storm. The House Judiciary Committee is initiating an investigation into whether Holder lied under oath when he testified before the Committee on May 15th regarding the Department of Justice’s (DOJ) seizure of Fox News reporter James Rosen's emails. Furthermore, in a revelation likely to add weight to that investigation, The New Yorker's Ryan Lizza reports that the DOJ essentially went "judge shopping" to procure a search warrant to access Rosen's files.
The Committee is examining an exchange Holder had with Rep. Hank Johnson (D-GA). Johnson was concerned the DOJ could prosecute reporters under the auspices of the Espionage Act of 1917.
Johnson: "But we certainly need to protect the privacy of individuals, and we need to protect the ability ... of the press to engage in its First Amendment responsibilities to be free and to give us information about our government so as to keep the people informed."
Holder: "Well, I would say this. With regard to the potential prosecution of the press for the disclosure of material, that is not something that I've ever been involved in, heard of or would think would be a wise policy. In fact, my view is quite the opposite."
Not quite. Last Friday, NBC News reported that the DOJ promised to review its policies regarding the seizure of information from reporters, even as it acknowledged that the search warrant issued for Rosen's material was approved “at the highest levels” of the Department, including “discussions” with Holder.
This is not the first time Holder has "misled" Congress. Documents obtained in 2012 by Judicial Watch, pursuant to a Freedom of Information Act (FOIA) lawsuit, revealed that top political appointees at the DOJ were intimately involved in the decision to drop the voter intimidation lawsuit against the New Black Panther Party (NBPP). That information conflicts with Holder's testimony before the House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies on March 1, 2011. “The decisions made in the New Black Panther Party case were made by career attorneys in the department. And beyond that, you know, if we’re going to look at the record, let’s look at it in its totality,” Holder contended.
The DOJ had initially refused to turn over the documents, contending they didn't show “any political interference whatsoever.” Judge Reggie B. Walton in Washington, D.C. District Court disagreed. Allowing the release of the documents on July 23, 2012, he declared that they "reveal that political appointees within DOJ were conferring about the status and resolution of the New Black Panther Party case in the days preceding the DOJ’s dismissal of claims in that case[.]"
Sworn testimony given by Holder during the Fast and Furious gun running scandal was even more suspect. On May 3, 2011, he told a Judiciary Committee he had only recently learned about the operation. "I'm not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks," he told Committee Chairman Darryl Issa (R-CA). Yet internal DOJ documents obtained by CBS News the following October revealed that Holder had been sent briefings on the operation as early as 2010. For that statement, as well as his stonewalling of the investigation -- aided and abetted by an executive order issued by President Obama preventing critical documents from being released -- Holder earned a contempt of Congress citation in June 2012.
Thus, Holder's track record for truth-telling is tattered at best. Yet even as the House Judiciary Committee proceeds, the left has begun circling the wagons around the embattled Attorney General. A Daily Beast column, "Holder Regrets and Repairs," which contends the embattled Attorney General is, according to aides, "beginning to feel a creeping sense of personal remorse," is a pathetically transparent effort aimed at rehabilitating Holder's image. "As attorney general, a position at the intersection of law, politics, and investigations, Holder has been at the center of partisan controversy almost since taking office," writes Daniel Klaidman. "But sources close to the attorney general says he has been particularly stung by the leak controversy, in large part because his department’s--and his own--actions are at odds with his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance—not unlike the president he serves."
An equally delirious effort was made by administration apologist Juan Williams on Fox News Sunday. Williams argued that Holder was not responsible for the investigation of Rosen, despite signing the affidavit authorizing it. He further insisted that Holder “is the exact right person” to conduct an investigation to see how DOJ prosecutors came to decide Rosen was a “criminal co-conspirator.”
Even Rep. Johnson also tried to provide cover for Holder. “The attorney general’s statement that no journalists have been prosecuted under the Espionage Act during his tenure is accurate,” he told The Hill.
Not exactly. Holder said he hadn't been involved in potential prosecution of the press, a statement we now know is at odds with the truth, to say the least.
Rep. Jim Sensenbrenner (WI), the second-ranking Judiciary Committee Republican has a far more accurate assessment of Holder. "As we saw in Fast and Furious and are seeing now, Attorney General Holder refuses to hold himself accountable,” said Sensenbrenner. “He misled the Judiciary Committee under oath when he said he had not heard about Fast and Furious and he misled us again when he claimed to be unaware of the AP scandal. The head of DOJ should be someone the American people can trust. Attorney General Holder should resign.”
The impetus for that resignation is likely to grow stronger. Last Friday, when the DOJ conceded Holder had been in the loop regarding Rosen, the Department remained unapologetic. They contended the seizure of Rosen's phone records -- and by extension, those of Rosen's parents -- was a legitimate exercise of DOJ authority. “After extensive deliberations, and after following all applicable laws, regulations and policies, the Department sought an appropriately tailored search warrant under the Privacy Protection Act,” said a department official. “And a federal magistrate judge made an independent finding that probable cause existed to approve the search warrant.”
This was on the third try. As Lizza reveals, two other judges separately declared that the DOJ was required to notify Rosen about the seizure of his records, even if that notification was delayed. Otherwise, as Judge John M. Facciola wrote in an opinion rejecting the Obama administration’s argument, “The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her (sic) e-mail account.”
Ronald C. Machen, Jr., the U.S. Attorney prosecuting Stephen Kim, the former State Department arms expert who allegedly leaked classified information about North Korea to Rosen, disagreed. He insisted Rosen should not be notified about the search and seizure of his e-mails, even after a lengthy delay. Machen appealed Facciola's ruling and in 2010, he got Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, to overturn the ruling.
Lamberth himself added to the intrigue surrounding his ruling. Last Wednesday, he issued an order apologizing to the public and the media for not making three search warrants in this case widely available online. A federal judge had ordered their release in November 2011, but they were kept under wraps for another 18 months, and only posted on the court docket after the Washington Post inquired about them. Lamberth blamed the delay on administrative errors, adding that a review of the “performance of the personnel involved is underway.”
It is virtually impossible to believe Holder, who authorized the original affidavit allowing Rosen’s records to be seized, was subsequently out of the loop, especially when two judges rejected the idea that the seizure could be kept secret. Thus, we have reached another embarrassing point in Eric Holder's embarrassing tenure as Attorney General, all the personal remorse in the world notwithstanding.
Yet those who believe Obama will finally pull the trigger and ask for Holder's resignation are being naive. Obama gave a speech last week in which he "called on Congress to pass a media shield law to guard against government overreach." The law would protect journalists from having to testify about confidential sources--meaning it's totally irrelevant with regard to both the seizure of AP phone records and the Rosen case because they involved government searches. But the announcement reflects the president’s effort to bury this scandal with the kind of rationalization that passes for logic in Washington, D.C.: no one at the DOJ has done anything wrong, and they won’t do it again.
Furthermore, Obama's invocation of executive privilege to protect Holder in the Fast and Furious case indicates how far he is willing to go to keep Holder aboard. In short, Holder only resigns if and when Obama perceives that the Attorney General is a direct threat to his own political well-being. In one of the greater ironies of the moment, Obama's effort to protect Holder will be aided and abetted by the media.
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