The answers given by Attorney General Eric Holder during his appearance before the House Judiciary Committee this afternoon certainly make it appear like his decision to recuse himself was a gutless decision, one he made because he knew when the press discovered the Associated Press had their phone records secretly seized they would be collectively outraged.
As reported over the past couple of days, the AP had phone records from a period of two months secretly seized. Records from twenty phone lines from multiple AP offices were obtained. Over a hundred journalists working in the AP offices were reportedly implicated as a result of the seizure.
The seizure happened as part of an investigation into a story published on May 7, 2012, involving a CIA underwear bomb plot sting operation in Yemen. The story included leaked information from officials.
Holder recused himself early in the investigation into the leak and delegated authority to Deputy Attorney General Jim Cole, which means he would be the one in charge of deciding whether to subpoena records from press organizations.
Rep. Jim Sensenbrenner (R-Wi) attempted to pin down who authorized the subpoena. Though Holder delegated that authority to Cole, Holder would not clearly and unequivocally state that Cole had authorized the subpoena. It was only after a staff member handed him a note that he was comfortable with confirming that Cole had indeed authorized the subpoena.
Holder was apparently interviewed by the FBI as a part of the investigation into the leak because he had possessed the information. Sensenbrenner asked him if he was a witness or if being interviewed was a part of his official duty as attorney general.
“I was interviewed as one of the people who had access to the information that was the subject of the investigation. I , along with other members of the national security division, recused myself,” Holder stated. He then added, “I recused myself because I thought it would be inappropriate and have a bad appearance to be a person, who was a fact witness in a case, to actually lead an investigation, given the fact unlike Mr. Cole that I have greater interaction with the press than he does.”
He also indicated he knew of the limited amount of people in the Justice Department, who could have spoken to members of the AP.
It may be that Holder has had a close working relationship with the person, who is believed to have leaked information. However, what he said is similar to what he said yesterday about having frequent interaction with the press. It seems more likely that he understood what the response of the AP and other media organizations would be when they found out that phone records were subpoenaed and he did not want to have to answer for it. He conveniently delegated authority to Cole so Cole could bear the brunt of a decision that would likely be regarded as an unprecedented act against freedom of the press.
Guidelines for subpoenaing the press grant the attorney general the authority. It is expected that the attorney general will be a part of the process. There is no contingency in the guidelines where the attorney general recuses his or herself because they do not have the interest, temerity or will to remain at the forefront of the investigation. So, if they do take a step away from the investigation, it should be officially documented so that everyone can know exactly why it was impossible for the attorney general to exercise his or her authority and take responsibility.
Also, Holder sat before the committee asserting that he did not know all that much about the process that led to the subpoena and the ongoing investigation because he recused himself, but it seemed like he really knew more than he was willing to admit.
Rep. Spencer Bachus (R-Ala.) asked straightforward questions to Holder about when he recused himself and this was part of the exchange:
BACHUS: So, it was before the subpoena?
HOLDER: Yeah, I don’t know when the subpoena was issued.
BACHUS: So, it would have been after the subpoenas were issued?
HOLDER: No, I certainly recused myself before the subpoenas were issued.
How can one not know if they recused themselves before the subpoena was issued because they did not know when the subpoenas were issued and then seconds later know for certain they recused themselves before the subpoenas were issued? His answers seems like ones given by someone doing all they can to prevent themselves from divulging information known, which they do not want others to think they know so they can maintain plausible deniability.
Yesterday, at a news conference, he mentioned how he had seen a draft form of a response letter sent by Cole to the AP. Why would he be shown a draft if he was recused? He would not have a need to know the contents of the letter.
Holder told the committee that a “great deal of independence” was given to the US Attorneys involved in these matters. “They did not report back to Washington every investigative step they were taking.”
Through Cole and these US Attorneys, there is a compartmentalization of the investigation so that Holder can assert he does not know what is happening and deflect any and all questions from the press or Congress on this matter.
Multiple representatives asked Holder if Cole could come before the committee to answer questions. Not surprisingly, Holder cautioned against this because he is the lead prosecutor in an “ongoing prosecution.” So, who answers for this? Cole cannot. Holder won’t. Everyone below is not in a position to make official statements publicly. Everyone escapes accountability.
Finally, both Representative Jerrold Nadler (D-NY) and Rep. Zoe Lofgren (D-Ca.) delivered some good remarks.
“Less than a year ago, the committee’s Republican leadership demanded aggressive investigation of press leaks, accusing the administration itself of orchestrating the leaks,” Nadler said. “Then, members of the committee wanted reporters subpoenaed, put in front of grand juries and potentially jailed for contempt. Now, of course, it is convenient to attack the attorney general for being too aggressive.”
He continued, “This inconsistency on the part of my Republican colleagues should not distract from legitimate questions worthy of congressional oversight, including whether the Espionage Act has been inappropriately used in looking at leakers.” He also said Congress should pursue the passage of a federal media shield law and also reconsider “broad grants of surveillance and immunity.”
The point was critical, as the seizure of records was an inevitable result of bipartisan leaks hysteria. It was led by Democratic Senator Dianne Feinstein, who joined with Rep. Mike Rogers and Rep. Peter King to demand prosecutions. And, now that the GOP is criticizing the Justice Department over the seizure of records, Holder is pointing out how the GOP wanted a special prosecutor to investigate leaks. This is true, but that does not make the outrage purely partisan. The whole entire news business is offended by the act committed by the Justice Department.
As Lofgren pointedly stated, “It seems to me clear actions of the Department have impaired the First Amendment. Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence because those confidential sources are now going to be chilled.”
She said she did not understand why and how he had recused himself. She wondered why there was not anything in writing. Apparently, no memo or email was written memorializing when he recused himself. Also, citing a New York Times editorial published today, she asked how the Justice Department could possibly worry records in the possession of phone companies would disappear (the DoJ’s excuse for not contacting the AP before subpoenaing records).
“It seems to me the damage done to the free press is substantial and will continue until corrective action is taken,” Lofgren concluded.
What the Justice Department engaged in, whether Holder truly knows the extent of the act or not, is a fishing expedition intended to send a message to government employees or whistleblowers not to talk to the press. It is an assault on the news gathering process itself and, finally, there are media organizations waking up to the reality that the war on whistleblowers waged by the Obama administration is not separate from threats to freedom of the press. They are interconnected and a part of officials’ efforts to defend the national security state’s ability to avoid scrutiny and operate in total secrecy without the public knowing what is being done each and every day.