June 20, 2013

President Obama, left, and Attorney General Eric Holder (Pablo Martinez Monsivais/ Associated Press)

Last month’s scandal on government overreach is momentarily eclipsing this month’s scandal on government overreach: In a new letter regarding the government’s leak investigations, Attorney General Eric Holder is saying that he didn’t mislead Congress.

Some back story: On May 15, Holder was pressed by members of the the House Judiciary Committee on the Justice Department’s aggressive seizure of phone records from the Associated Press (AP), in connection with a leak investigation stemming from an AP story about a foiled al-Qaeda bomb plot that originated in Yemen. Under questioning about how extensively Justice went after the media, Holder assured the committee that he’d never been “involved” with the prosecution of a member of the media for disclosing sensitive material.

That was before the James Rosen story surfaced. As first reported in The Post, Rosen, a reporter for Fox News, had his personal e-mails targeted by a search warrant in a leak investigation related to North Korea; in June 2009, Rosen published a story on FoxNews.com reporting on how the North Korea regime would respond to a condemnatory resolution from the U.N. Security Council. In pursuing Rosen’s e-mails, the Justice Department told a federal judge that there was “probable cause to believe that the [Rosen] has committed a violation [of the Espionage Act] at the very least, either as an aider, abettor and/or co-conspirator of [alleged leaker Stephen Jin-Woo] Kim.”

So how did Holder square his statement about no media prosecutions with the “co-conspirator” language? That’s what the House judiciary committee wanted to know.

In answering that attack, Holder didn’t appear to break a sweat. His letter notes that there’s a difference between an actual prosecution and what went down in the Rosen case, which is this, in Holder’s words:

[I]n the course of the ongoing investigation into the unauthorized disclosure of classified information that appeared in a news article in June 2009, the Department, with my approval, sought a search warrant for a reporter’s e-mails from an internet service provider. In order to proceed under the Privacy Protection Act, the government was required to establish that there was probable cause to believe that the reporter had committed or was committing a criminal offense to which the needed materials related…. As explained in our prior letters, the government’s decision to seek this search warrant was an investigative step, and at no time during this matter have prosecutors sought approval from me to bring criminal charges against the reporter.

Of course they haven’t. That’s because there’s no evidence that such charges would not be laughed out of any federal courtroom. In response to a question from the House judiciary committee, however, Holder writes: “The government sought the search warrant as an investigative step, and there was a factual basis for the assertions in its application.” Well then, why not prosecute Rosen?

As a means of defense against claims that Holder misled Congress on the treatment of reporters, the Holder letter works fine. There is, after all, a clear difference between a full-on prosecution and trashing a reporter as a possible co-conspirator as an “investigative step.”

Yet that distinction doesn’t mitigate what the Justice Department did in its pursuit of Rosen’s e-mails. As the Erik Wemple Blog explained last month, the Privacy Protection Act stops the government from “search[ing] a newsroom for the purpose of obtaining work product or documentary materials relating to a criminal investigation” — except “when there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” To qualify for that exception, Holder & Co. had to tar Rosen.

Too bad Holder couldn’t have conceded the depravity of the “co-conspirator” garbage, even as he drew a distinction between that treatment and a prosecution. David Schulz, a leading First Amendment lawyer, tells the Erik Wemple Blog, “The answer should have been, he shouldn’t have gone after the reporter’s records.” Based on how much information the government had collected on its own regarding the leak to Rosen, says Schulz, it never needed Rosen’s e-mails or phone information. “This is just icing on the cake and that’s one of the things these [Justice Department] guidelines are supposed to stop.”

That’s not how Holder sees it. In response to a question about Rosen, he replied:

The disclosure of classified information that appeared in a news article in June 2009 presented a serious threat to national security. I believe that under those circumstances, it was necessary to do as thorough and comprehensive an investigation as possible. As I noted previously, conducting a thorough investigation, including obtaining relevant evidence from a member of the news media, is not equivalent to the prosecution of a member of the news media.

Last month, Schulz told us, “Limiting liberty in the interest of expediency is the definition of tyranny.”

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