After an especially trying week — even by his standards — Attorney General Eric Holder Jr. is attempting to repair his frayed ties to news organizations and fending off renewed demand from Congress for his head. As one veteran Washington lawyer put it, the U.S. Department of Justice had gone into "a defensive crouch."
Holder took the unusual step of reaching out to meet with major media outlets last week, to quell outrage over the handling of leak investigations involving news reporters. Several rejected the invitation because the conversation would be off the record. Meanwhile, the Justice Department took the rare step of responding publicly to a letter from top House Republicans who questioned whether Holder had lied to Congress.
The situation was a head-scratcher for Peter Zeidenberg, a partner in DLA Piper’s Washington office. It was he who described the department’s "defensive crouch."
"I don’t understand how it is the DOJ has been put in such a defensive posture," said Zeidenberg, a former attorney at the DOJ and U.S. attorney’s office in Washington. "I don’t think it’s justified. From what I’ve seen these investigations have been handled properly and appropriately."
From a political perspective, however, the attacks just keep coming. Top Republicans on the House Judiciary Committee launched an investigation on May 29 into whether Holder, the nation’s top law enforcement officer, lied to Congress when he testified on May 15 about his role in the "potential prosecution" of members of the press for publishing classified material.
The White House and DOJ dismissed the perjury talk, and George Washing­ton University Law School professor Orin Kerr, writing on the blog Volokh Conspiracy, called talk of a criminal accusation "bordering on silly." But the Republicans have pounced on the issue at a time when the Obama administration is on the defensive on a number of fronts involving the targeting of journalists in leak investigations; use of political profiling by the Internal Revenue Service; and the government’s response to the deadly attack on a U.S. facility in Bengazi, Libya.
Representatives Bob Goodlatte (R-Va.) and Jim Sensenbrenner (R-Wis.) wrote to the Justice Department, expressing "great concern" that newly uncovered details about a Justice Department leak investigation involving Fox News "appear to be at odds with your sworn testimony." Holder, according to NBC News, personally approved a search warrant targeting the emails of Fox reporter James Rosen.
It wasn’t the first time Holder faced muttering from Capitol Hill about criminal charges. Last year, the GOP majority in the House of Representatives voted to hold him in contempt of Congress for — in the eyes of critics — not providing enough information in a congressional probe of the Fast and Furious gun trafficking investigation. Department of Justice officials declined to prosecute.
Reporters on May 30 pressed White House spokesman Josh Earnest about Obama’s faith in Holder. Asked about whether the controversy hampered Holder’s ability to do his job, Earnest replied: "Not in the least."
Washington reporters didn’t share the president’s confidence. The Huffington Post carried a piece headlined, "Time To Go: Holder OK’d Press Probe." A.B. Stoddard, an editor at The Hill, wrote a piece with the headline "Eric Holder on the out."
"President Obama values loyalty, and Holder has been nothing if not loyal," Stoddard wrote. "But it is high time Obama accept that what he has placed a premium on in his presidency hasn’t always brought success or results. The White House declared this week, once again, that the president has confidence in Eric Holder. That pretty much says it all."
Sensenbrenner and fellow Republicans including Senator Ted Cruz (R-Texas) were — again — calling for Holder’s resignation. "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," Sensenbrenner told The Hill.
Obama earlier this month personally affirmed his confidence in Holder. "He does his job with integrity and I expect he will continue to do so," Obama said during a press conference at the White House on May 16. The president then instructed Holder to review the Justice Department policy governing investigations in which prosecutors want to seize evidence from reporters.
Holder called the meeting with the news organizations. The Associated Press, The New York Times and Reuters were among the invitees that declined to attend the off-the-record meeting, with Times executive editor Jill Abramson saying the idea "isn’t appropriate."
The issuance of subpoenas for reporter phone records, without giving AP a chance to negotiate or fight the intrusion, drew intense criticism from news organizations and Republicans and Democrats in Congress that prosecutors had overstepped their authority. The criticism isn’t likely to subside.
In their letter to the attorney general, Goodlatte and Sensenbrenner focus on two statements Holder made on May 15 before the House Judiciary Com­mittee in response to a question from Representative Hank Johnson (D-Ga.). Johnson asked about the use of the Espionage Act in prosecuting the press. The letter quotes Holder as saying: "With regard to potential prosecution of the press for the disclosure of material, that is not something that I have never been involved in, heard of, or would think would be a wise policy."
The letter notes that recent news reports revealed that in May 2010, the Justice Department obtained a search warrant for emails belonging to Rosen, chief Washington correspondent for Fox News. The search warrant affidavit described an investigation into government adviser Stephen Jin-Woo Kim and leaks about national security intelligence regarding North Korea, but it listed Rosen as a "co-conspirator" and alleged that "at the very least" Rosen was an aider and abettor, the letter said.
"The media reports and statements issued by the department regarding the search warrants for Mr. Rosen’s emails appear to be at odds with your sworn testimony before the Committee," they wrote. "We believe — and we hope you will agree — it is imperative that the Com­mittee, the Congress, and the American people be provided a full and accurate account of your involvement in and approval of these search warrants."
Goodlatte and Sensenbrenner asked the Justice Department to answer a number of questions about the Rosen investigation and the Justice Depart­ment’s policies regarding leak investigations and the news media.
A Justice Department official said the agency had received the letter "and we look forward to both describing the Department’s policies, and establishing that the Attorney General’s testimony concerning the potential prosecution of the press was consistent with the underlying facts with respect to the investigation and ultimate prosecution of Mr. Kim."
Carney told reporters that Holder had testified truthfully and that Rosen had not been prosecuted. "And I would point you to published reports that say no prosecutorial action was taken and none is contemplated, again, based on my reading of reports," Carney said. "So it seems self-evident that that [lying to Congress] charge is inaccurate."
Kerr, who teaches criminal procedure and computer law at George Washington University law, said in his Volokh post that Holder’s full answer at the hearing made clear that he was making a point about prosecutorial discretion.
"For any prosecutor, there is a fundamental distinction between asking whether there is probable cause that someone committed a crime and asking whether that person should be prosecuted for the alleged crime," Kerr wrote.
Todd Ruger can be contacted at firstname.lastname@example.org.