DOJ’S DISINTEGRATING POSITION ON INVESTIGATING JOURNALISTS
In Mayevidence came to light that the Department of Justice had obtained two months of phone records and email correspondence of over 100 AP reporters, had named Fox News reporter James Rosen a “criminal co-conspirator” under the Espionage Act to justify issuance of a subpoena to reveal his sources, and had obtained the personal emails and phone records of Rosen and Rosen’s parents. On July 12, Attorney General Eric Holder continued to twist in the face of buffeting from the press, Congress, and civil rights advocates, sending President Obama a report not in defense of his actions but in partial reversal of them, promising changes to DOJ policy on leak investigations (changes that will make it somewhat more difficult for DOJ to seek warrants for journalists’ records in future).
Through the tortured testimony of Holder before the House Judiciary Committee (in which he contradicted himself on the key point of his personal knowledge and approval of the surveillance), freedom loving Americans have come to realize that the Department of Justice under Holder has felt unconstrained by the limits of the Constitution. Holder’s tenure has been embattled over several scandals. The latest DOJ media surveillance scandal has added the media and liberal members of Congress to the list of those alienated by the Attorney General’s actions, the conservative members of Congress having been alienated long ago.
The Attorney General testified falsely to Congress concerning his knowledge and approval of media surveillance, rose at first to defend actions that are patent violations of the First Amendment, and now,made to account for the abuses, has backed down, tacitly admitting that the actions of DOJ were abuses. The repeated scandals, disingenuous testimony under oath, lack of regard for legal limits on the exercise of power, and negligent management reveal fundamental and inexcusable failings in Holder that make his removal from office a legal imperative.
Among the many changes made by DOJ, the new guidelines supplied to Obama on July 12 forbid the targeting of journalists who are pursuing “ordinary newsgathering activities” and forbid use of warrants against journalists if the target of the investigation is someone other than the reporter, e.g., a government official who is leaking classified information to a journalist. In addition, contrary to DOJ’s prior practice, the department will now inform affected media of subpoenas that seek journalists’ phone records and emails unless the Attorney General determines that doing so would pose a threat to the DOJ investigation and, in any event, DOJ would so inform affected media no later than 90 days after issuance of subpoenas for journalists’ records and correspondence.
The changes come from one stung by the reaction to the DOJ abuses but do not go far enough to guard against future abuses. While specific aspects of DOJ investigations of leaks may have to remain confidential to protect the lives of Americans in service to their country, there is no justification in the ordinary course for not serving journalists whose records are sought notice that DOJ is seeking a subpoena, thereby affording them and media organizations the opportunity to challenge the request before documents are obtained. One sided government motions for issuance of a subpoena invite a misprision of justice because those ex parte submissions deny federal judges an opportunity to assess defenses against subpoena issuance.
On May 15, 2013, the Attorney General delivered sworn testimony before the House Judiciary Committee. In that testimony, he said that he had recused himself from the leak investigations to avoid a conflict of interest, plainly suggesting that he was unaware of DOJ’s media surveillance. The AG said that Deputy Attorney General James Cole conducted the AP investigation and ordered the subpoenas. Holder also specifically denied knowledge of the Rosen investigation, stating under oath: “. . . that is not something that I’ve ever been involved in, heard of or would think would be a wise policy.” But a week later, on May 23, 2013, media reports began circulating that in fact Holder had personally signed off on the Rosen investigation and Holder has since admitted to doing so.
Those who occupy the post of Attorney General of the United States swear an oath to uphold the Constitution and laws of the United States. While many prior Attorneys General have fallen from grace or have abused the power of their offices, each is legally obliged to be beyond reproach because it is the Attorney General’s duty to uphold and enforce the nation’s laws. Obviously one who breaks the law himself cannot be trusted to enforce the law. Those who do, who are caught and who even admit the wrongful act(whether it be false testimony before Congress or other acts that are contrary to the Constitution or the laws of the United States) are unfit to remain in office. Once that basic trust is broken, there is no assurance that the Attorney General will abide by the laws in future.
That is the essential problem with Eric Holder continuing to serve as Attorney General. Retaining him in that post condones prior wrong doing and abuses of power, reducing the stature of the office and making it impossible to trust that Holder will follow the law in future. In a very real sense, keeping a person in the position of Attorney General after he or she has been shown to have conducted unconstitutional or otherwise illegal operations makes a mockery of the rule of law. Indeed, it impugns the integrity of all who through failure to remove the Attorney General condone the prior bad acts. It also casts aspersion on the many honest DOJ attorneys and employees who do uphold the highest standards of legal ethics.
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In the end, of course, President Obama remains culpable for the failings of his own Attorney General. Whatever may be argued about Obama’s alleged lack of awareness of Attorney General Holder’s unconstitutional and otherwise unlawful actions while those actions were occurring (a professed ignorance that is hard to believe), the fact remains President Obama is standing behind Attorney General Holder (and, so, presently condones the bad acts). Failing to remove Holder from office, Obama is fully culpable for Holder’s actions.
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