Eric Holder
Attorney General Eric Holder prepares to testify Wednesday on Capitol Hill.
(J. Scott Applewhite/Associated Press)

In an ongoing House Judiciary Committee hearing, Robert Goodlatte (R-Va.) grilled Attorney General Eric Holder on the controversy over the Justice Department’s secret subpoena of phone records of the Associated Press (AP). Referring to Justice Department guidelines, Goodlatte asked why the AP didn’t have a chance to negotiate with Justice over its investigation.

Echoing his press conference of yesterday, Holder said he’d recused himself from the case and, thus, didn’t participate in the case.

Then Goodlatte came up with a stronger angle on the matter: The AP cooperated with the administration’s request to delay publication of a story on a foiled terrorist plot emanating from Yemen, which is allegedly the story based on the leak that the department is investigating. Given this display of cooperation, why wouldn’t the Justice Department have approached t

he news organization about its need for AP’s cooperation?

“I don’t know,” responded Holder, again noting his lack of involvement in the case.

Whatever Holder’s status, it’s a question that needs answering. Yesterday the Erik Wemple Blog suggested a possible explanation — namely, that notifying a news organization of an intent to subpoena gives that news organization an opportunity to fight the action. As Holder did point out, Justice can proceed without negotiations if it determines that such a step would pose a “a substantial threat to the integrity of the investigation.”

And that’s one awesome loophole.

Goodlatte’s line of questioning drives at a critical point on government-media relations. Decisions by media outlets to hold back on certain stories in deference to government interests hinge on a climate of cooperation and good faith. Any secret phone-records subpoena, let alone one targeting 20 phone lines of a wire service, threatens that climate.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.