Schumer told reporters that he had been planning to reintroduce his bill it this week and “coincidentally” heard from White House officials Wednesday morning urging him to reintroduce the bill.
Under a compromise struck in 2009, the measure would let federal judges deny a subpoena aimed at a journalist if they found that the benefit the public would gain from learning of the news outweighed the importance of identifying government authorities who leaked the information. This would include, in some instances, the public release of classified national security information.
The White House’s support for the measure came as Holder appeared before the House Judiciary Committee, marking the first official attempt by Congress to seek some accountability for his department’s decision to pursue the phone records of Associated Press journalists as part of an investigation into a leak of classified material about a failed al-Qaeda plot.
Wednesday’s hearing had been scheduled for some time and was not called in response to the controversies of the past few days. Citing the fact that he recused himself from the probe into the leak, Holder offered little in the way of new information about the phone records.
“This is both an ongoing matter and an ongoing matter about which I know nothing,” he said.
The issue has thrust Holder squarely back into the spotlight. Throughout his tenure, President Obama’s attorney general has been a consistent target of conservative criticism, and Republicans have renewed their assault this week. Republican National Committee Chairman Reince Priebus called for Holder’s job Tuesday, and Wednesday, Holder tangled with several Republicans on the Judiciary Committee.
Rep. Jim Jordan (R-Ohio) charged at one point that Holder doesn’t “have all that much credibility.” At another, a tense exchange erupted between the attorney general and Rep. Darrell Issa (R-Calif.) over the subject of Assistant Attorney General and labor secretary nominee Thomas Perez. Holder labeled Issa’s conduct “unacceptable” and “shameful.”
When reminded by Rep. Doug Collins (R-Ga.) that he was at the hearing because Congress has oversight over his department, Holder quipped back: “I didn’t show up here because I really wanted to.”
It wasn’t just Republicans who offered criticism over the phone records. Rep. Zoe Lofgren (D-Calif.) said: “It seems to me clear that the actions of the department have in fact impaired the First Amendment.”
Schumer said he is not sure whether his proposed law would have prevented the Justice Department from obtaining the AP’s phone records, but that “if this bill was law, there would be an independent arbiter who would have approved any request for information.”
He added: “Right now there are no guidelines, and we feel that there should be guidelines, it shouldn’t be any time a government official wants information from the press that they can just get it.”
The bill failed to gain enough support to merit full consideration by the Senate in 2009, but Schumer said he expected that this week’s events would compel the Senate to consider the bill.
Time and again, Holder said he didn’t have a “factual basis” for answering questions about the scope of the subpoena, and why the AP was not notified about it. But he said he was confident that his department didn’t run afoul of any rules.
“There are exceptions to some of the rules you pointed out, and I have faith in the people who were responsible,” Holder said in response to a question from Judiciary Committee Chairman Bob Goodlatte (R-Va.).
The FBI, he said, is looking into the leak controversy under Deputy Attorney General James M. Cole’s supervision and under the direction of the U.S. attorney for the District of Columbia.
Holder said Wednesday that he had informed his deputy that he was recusing himself, but could not recall specifically when he did it, adding that the recusal was not written. The attorney general received confirmation during the hearing that Cole authorized the subpoena to secretly obtain the phone records of AP journalists. Holder earlier in the hearing had said he was 95 percent (or more) sure that it had been Cole, but he later clarified that it was Cole, the Justice Department’s No. 2.
The decision to obtain the phone records was roundly criticized by the AP as well as members of both political parties. More than four dozen news organizations, including The Washington Post, wrote the Justice Department on Tuesday urging that the records be promptly returned to the AP, and complaining that the department appeared to run afoul of subpoena guidelines.
Holder strongly defended the subpoenas Tuesday, telling reporters at a news conference that the leak “put the American people at risk. And that is not hyperbole.”
His statement seemed to contradict reassurances from the White House a year ago that the plot exposed in the AP article at the center of the probe did not pose a threat.
On May 8, 2012, the day after the AP story about a successful CIA operation to thwart a Yemen-based terror plot was published, John O. Brennan, then Obama’s top counterterrorism adviser, appeared on ABC’s “Good Morning America” and provided assurances that there was no danger from the foiled al-Qaeda plot. He said U.S. intelligence had had the bomb, which he described as an improvised explosive device, or IED, under control for at least 10 days.
Wednesday’s hearing also focused on the IRS’s recent revelation that it targeted conservative groups seeking tax-exempt status for heightened scrutiny. Holder announced Tuesday that authorities are exploring a criminal investigation in the matter. Holder told the Judiciary Committee the investigation is in its early stages. When asked about possible criminal violations, Holder mentioned civil rights laws and the possibility that false statements were made.
“The facts will take us wherever they take us,” Holder said, promising a wide-ranging probe that will not be clouded by partisanship. “This will not be about parties. This will not be about ideological persuasions. Anyone who has broken the law will be held accountable.”
In a heated back and forth, Jordan expressed concerns that the criminal investigation could complicate congressional efforts to look into the matter because it might prevent witnesses from being able to be forthcoming during congressional testimony.
“Next week, when Lois Lerner, who lied to Congress, and therefore the American people, comes in front of our committee for us to get information about what took place at the IRS, is she just going to throw up her hands and say, ‘You know what, the attorney general and the Department of Justice is doing a criminal investigation, I can’t really comment now’?” Jordan asked, in reference to the IRS official who sees tax-exempt groups.
Holder responded: “Your characterization of her testimony in and of itself, in the way you’ve characterized it ... could put her in the very situation you say you don’t want to have happen.”
White House spokesman Jay Carney told reporters Wednesday that the president would meet with senior Treasury Department officials “to yak about the next steps that he hopes to be taken” to address the problems at the IRS and hold agency officials accountable for singling out conservative groups for heightened scrutiny.
Carney would not say whether the acting IRS commissioner, Steven Miller, should step down. “I’m not going to get into personnel matters,” he said.
Sari Horowitz, Aaron Blake and Ed O’Keefe contributed to this report.