The New York Times over the weekend published a classic piece of scandal journalism. The topic was Attorney General Eric Holder and his recent troubles over his department’s snooping on journalists — all teed up with this headline: “Seeking a Fresh Start, Holder Finds a Fresh Set of Troubles.” The money passage in the story is this:
While the White House publicly backed Mr. Holder as he tried to smooth over the latest uproar amid new speculation about his future, some in the West Wing privately tell associates they wish he would step down, viewing him as politically maladroit. But the latest attacks may stiffen the administration’s resistance in the near term to a change for fear of emboldening critics.
Concerns at the White House may center on the attorney general’s political acumen. A more critical consideration, however, centers on what Holder’s future means for press freedoms, which have taken something of a beating in the leak investigations that have recently come to light. Late last week, Holder presided over meetings with highly placed journalists to discuss possible amendments to the guidelines governing the Justice Department’s use of subpoenas and other means of investigating the sources of media outlets in sensitive cases. Supporters of Holder saw a genuine effort to patch up the guidelines; detractors saw a PR effort designed to diminish calls for the attorney general’s resignation.
Motivations, schmotivations — what the sessions really underscored is how powerful the Justice Department is, as if we really needed a reminder. This whole exercise amounts to an effort by the Justice Department to discipline itself — to NOT produce the sort of wide-ranging, secret subpoenas that led to the seizure of records for 20 Associated Press phone lines in April and May of 2012. And to NOT cite “probable cause” that some journalist is a “co-conspirator” in violation of the Espionage Act, as it did in seeking a search warrant in the case of Fox News’s James Rosen. It secured that search warrant and proceeded to get records of Rosen’s personal Gmail account.
Remedies to Justice Department overreach range from a media shield law to revision of the guidelines and perhaps other steps. According to The Post’s Sari Horwitz, Holder and his No. 2, James M. Cole, pledged to “consider supporting statutory changes that would sharply reduce the chance that a journalist would be described as a possible ‘co-conspirator’ in a crime as part of an effort to obtain a search warrant.”
That’s really nice. The Erik Wemple Blog hopes they do that. A sharp reduction in the chance that a journo would be described as a “co-conspirator,” after all, would be great news for journalism.
Regardless of whether Justice promulgates robust revisions to the regulations; regardless of whether Congress passes this media shield law; regardless of what other legal deus ex machina enters the field of play, the critical ingredient in the respect of press freedoms is precisely what it has long been: the self-restraint of the U.S. Department of Justice. Because even if new rules mandate judicial review of every step in such cases, a power- and phone-records-hungry Justice Department will have ways of prevailing, of getting the things it wants. Matthew Cooper, a leak-investigation veteran, wrote last week in the National Journal, “The only way journalists will be protected is if prosecutors stop being so quick to go after them.”
And if Holder squeaks through this crisis, what’s the lesson to future attorneys general? That if you go a little overboard in prying on the media, you’ll be fine. So go ahead and seize those phone records.
George Freeman, a lawyer at the New York firm Jenner & Block LLP and a former lawyer for the New York Times, says that the heat Holder has already taken could well serve as a deterrent: “You could argue that Holder is so back on his heels, that could be an object lesson to future attorneys general not to make the same mistakes he made.”