Attorney General Eric Holder signed off on a controversial search warrant that identified Fox News reporter James Rosen as a “possible co-conspirator” in violations of the Espionage Act and authorized seizure of his private emails, a law enforcement official told NBC News on Thursday. The disclosure of the attorney general’s role came as President Barack Obama, in a major speech on his counterterrorism policy, said Holder had agreed to review Justice Department guidelines governing investigations that involve journalists.
“I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable,” Obama said. “Journalists should not be at legal risk for doing their jobs.”
If this is accurate, Holder has no choice now but to resign. He engaged in a practice, if the president is to be believed, that the president disagreed with and is in contravention of Justice Department guidelines on surveillance of the media. As many mainstream media figures and legal experts have noted, he appeared to attempt to “criminalize journalism.” Moreover, it is impossible for him to investigate DOJ practices that he participated in.
He is also in potential trouble himself, which necessitates an investigation (obviously not by Justice) beyond his departure. His behavior in the James Rosen and Associated Press matters raise serious questions.
First, the affidavit (paragraph 45) asserts that DOJ exhausted all means available to get the material from Rosen’s e-mails and phone, and “because of [Rosen's] own potential criminal liability in this matter,” asking for the documents voluntarily would compromise the integrity of the investigation. Moreover, the affidavit asserts that the “targets” of the investigation (including Rosen) were a risk to “mask their identity and activity, flee or otherwise obstruct this investigation.” It is highly questionable whether Holder believed any of that to be true. (Really, he imagined a Fox News reporter would flee the country? He thought Rosen would don a disguise?) Was the affidavit a sort of ruse to get Rosen’s records (or later to pressure his cooperation)? Did Holder intentionally mislead a judge when he signed off on the affidavit? That is worth exploring.
Second, Holder testified in a House hearing this week in an unbelievable fashion that he had recused himself from the investigation regarding the AP but couldn’t remember when and left no written record. This is hard to fathom. If this isn’t what occurred, Holder’s misrepresentation to Congress is a serious problem.
Holder frankly should have more concern about prosecution than Lois Lerner (who took the 5th and was put on administrative leave). But that will be his problem — after he leaves office, as he now must. He acted in ways supposedly contrary to the president’s direction, without informing him and in a manner that called into question the president’s and the DOJ’s integrity and respect for the rule of law.
Will liberals who are so eager to call for Lerner, a mid-level functionary, to get canned also call for Holder to go? It’s hard to imagine why not.