The press conference at Main Justice last week was supposed to be about health care fraud enforcement, but Attorney General Eric Holder Jr. could tell the throng of reporters had other topics on their minds. "There are more cameras here than usual," he said wryly.
Until that afternoon, Holder had remained ­largely out of the Washington spotlight since President Barack Obama’s re-election. Holder’s second term at the helm of the U.S. Department of Justice had attracted little attention from Republican critics on Capitol Hill.
Then came revelations last week that prosecutors, investigating a ­potential leak of classified information to the media, had secretly obtained Associated Press phone records. The issuance of subpoenas, without giving the AP a chance to negotiate or fight the intrusion, drew intense criticism from news organizations and Republicans and Democrats in Congress that prosecutors overstepped their authority.
Holder was back under fire.
The renewed criticism placed Holder and the administration on the defensive, raising questions about whether the attorney general would remain in office and threatening to undermine his effort to shape a legacy of increased government transparency and the protection of civil rights.
"I have complete confidence in Eric Holder as attorney general," Obama told reporters at the White House on May 16, responding to the criticism. "He’s an outstanding attorney general and does his job with integrity, and I expect he will continue to do so."
More so than during previous administrations, the Justice Department under Holder has zealously pursued leak investigations and prosecutions, alarming whistleblower lawyers and attorneys for news companies.
Holder simultaneously tried to distance himself from and defend the AP investigation. Holder, who has the final say on seizing records from the press, recused himself from signing off on the subpoenas — because the FBI had earlier questioned him in the leak probe, he wanted to avoid the appearance of any conflict of interest, he said. But during his news conference — and then the next day during a congressional oversight hearing — Holder insisted that prosecutors played by the book when it came to obtaining phone records of AP reporters and editors.
Holder hasn’t given any recent signals he’s ready to call it quits. One defender, Robert Raben, a former assistant attorney general for legislative affairs, said the renewed controversy represented politics over substance and wouldn’t much affect his legacy. "The people who are most vocal have held their views for a long time," said Raben, president of lobbying and consulting firm the Raben Group.
A BAD CALL?
On May 13, The Associated Press revealed that the Justice Department had obtained call records for 20 phone lines used by reporters and editors. Gary Pruitt, the news agency’s president and chief executive officer, called the government subpoenas a "massive and unprecedented intrusion" into newsgathering. Pruitt told Holder in a letter that "there can be no possible justification for such an overbroad" collection of phone call data.
Leading Republicans and Democrats in Congress — including the Senate majority leader and the ranking Republican on the Senate Judiciary Committee — immediately pressed Holder over whether prosecutors had exceeded their authority, trampling constitutional protections in the effort to find a government leak.
Senate Majority Leader Harry Reid (D-Nev.) said the Justice Department should have gone to The Associated Press before issuing the subpoenas, and that he would look into whether legislative action is called for.
"I have trouble defending what the Justice Department did in looking at the AP," Reid said during his weekly press conference on Capitol Hill. "It’s inexcusable and there’s no way to justify this."
Senator Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, demanded an explanation. "The Depart­ment of Justice has rules in place that are supposed to prevent legitimate law enforcement activities from undermining freedom of the press," Wyden said in a statement. "It is the responsibility of the Justice Department to explain to Congress and the public how the broad surveillance that has been reported could possibly be consistent with those rules."
During his news conference, one question seemed to sting Holder a bit: How similar is the Obama administration to that of President George W. Bush when it comes to civil liberties?
"No we’re not," Holder said, "if one looks at, in a dispassionate way, what we have done in a whole variety of areas.…I found a moribund Civil Rights Division, and that is a division now that has brought record number of cases, protected record numbers of people."
A day later, on May 15, Holder appeared battle hardened during a four-hour oversight hearing before the House Judiciary Committee. The Justice Department’s subpoenas folded into a larger tapestry of scandal and controversy developing just months into Obama’s second term: The attacks on the U.S. consulate in Benghazi, Libya; the hunger strikes among detainees at Guantánamo Bay, Cuba; and the revelation that the Internal Revenue Service inappropriately singled out conservative groups seeking tax exemptions.
Holder has endured several years of confrontation with congressional Repub­licans, and it showed. That frustration boiled over in an exchange with Rep­resentative Darrell Issa (R-Calif.), a constant critic of the administration and the congressman who led the charge to find Holder found in contempt of Congress in June over the botched gun trafficking sting Operation Fast and Furious.
"No, I’m not going to stop talking now," Holder said over the top of Issa. "It’s too consistent with the way with which you conduct yourself as a member of Congress. It’s unacceptable and it’s shameful."
King & Spalding partner Gary Grind­ler, who served as acting deputy attorney general under Holder, said the return to the spotlight for Holder won’t distract him from pursuing legacy-defining policies — including civil rights. Holder, Grindler said, has "the strength of character to continue to carry out the important mission of the department."
As the AP subpoena debate gripped Washington, Holder told National Public Radio in an interview last week that he isn’t sure how many times he’s signed off on subpoenas targeting information from media companies. "I take them very seriously," Holder said. "I know that I have refused to sign a few [and] pushed a few back for modifications."
James Cole, the deputy attorney general, told The Associated Press in a letter that DOJ strives "in every case to strike the proper balance between the public’s interests in the free flow of information and the public’s interest in the protection of national security and effective law enforcement of our criminal laws. We believe we have done so in this matter."
Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., co-chairman of the firm’s appellate and constitutional law group and a longtime lawyer for media companies, described the AP subpoenas as "so broad, so indiscriminate, so contrary to basic First Amendment principles.
"It’s not clear there was some nefarious purpose here," Boutrous said, "but it was bungled." On Twitter, Boutrous urged the Justice Department to release its authorization for the AP subpoenas to allow public scrutiny.
Holland & Knight partner Charles Tobin, who has represented the AP but not in this matter, called the department’s behavior a "colossal incursion into the autonomy of the free press."
The criticism isn’t likely to fade. Holder, seemingly resigned to a contentious next few months on Capitol Hill, ended his testimony last week with a request for Washington.
"It’s almost a toxic, partisan atmosphere here where basic levels of civility just don’t exist," Holder said. "I think people should have the ability, especially in this context, to treat one another with respect."
Todd Ruger can be contacted at firstname.lastname@example.org. Staff reporter Jenna Greene contributed to this report.