In President Obama’s first term, Attorney General Eric H. Holder Jr. was a lightning rod for congressional Republicans who criticized the administration’s handling of law enforcement issues.
But for the past several months, the nation’s top law enforcement official has been virtually invisible from the national stage, granting few interviews and successfully avoiding the kinds of controversies that have plagued the Justice Department in recent years.
His respite now appears to be over.
Holder was thrust back into the spotlight Tuesday after the revelation that his department had secretly obtained a large cache of telephone records of journalists working for the Associated Press. The phone records were seized as part of a year-long investigation into the disclosure of classified information about a failed al-Qaeda plot.
Although Holder said Tuesday he had recused himself last year from the probe into the leak — he had been questioned by investigators and wanted to avoid a conflict of interest — he has again been caught in the political crossfire. This time, the criticism is coming not only from Republicans but also from Democratic lawmakers and civil liberties groups disturbed by the Justice Department’s actions.
“The press has an incredibly important role to play in a free society by helping to hold our government accountable to the American people, and intimidation like this can have a chilling effect on their ability to do their jobs,” said Rep. Bill Pascrell Jr. (D-N.J.). “These allegations, if proven to be true, cast an incredibly dark cloud over this administration.”
Under vigorous questions from reporters, Holder said Tuesday that Deputy Attorney General James M. Cole has overseen the FBI investigation into the leak and had authorized the seizure of phone records. But Holder also defended his department’s decision, saying he was confident that the officials involved in the investigation had taken the appropriate steps and followed the relevant Justice Department regulations.
“It is within the top two or three most serious leaks that I’ve ever seen,” the attorney general said. “It put the American people at risk. And that is not hyperbole. . . . Trying to determine who was responsible for that, I think, required very aggressive action.”
Since Obama was reelected, Holder has been dogged by questions over how long he intends to remain as attorney general. Those questions — which he has declined to answer — are likely to be rekindled by the latest controversy.
He is scheduled to appear before the House Judiciary Committee on Wednesday. A statement from the chairman of the panel, Rep. Bob Goodlatte (R-Va.), said the session would focus not only on the controversy over the phone records but also on the “troubling allegations of the politicization of the Justice Department under Attorney General Holder’s leadership.”
The Associated Press’s president, Gary B. Pruitt, said that he was notified Friday by Ronald C. Machen Jr., the U.S. attorney for the District of Columbia, that the Justice Department had obtained telephone records from more than 20 cellular, office and home lines of individual reporters and editors. In a letter to Holder, Pruitt called the Justice Department’s actions a “massive and unprecedented intrusion” into newsgathering activities.
On Tuesday, Cole defended the move, saying in a response to the AP that the FBI sought the records only after a comprehensive investigation that included more than 550 interviews and the review of tens of thousands of documents. He said the subpoenas covered a portion of a two-month period last year, not two months of communications as initially reported, and did not include the contents of the calls, only the phone numbers.
“We strive in every case to strike the proper balance between the public’s interest in the free flow of information and the public’s interest in the protection of national security and effective enforcement of our criminal laws,” Cole wrote.
Machen was appointed this past summer by Holder to lead the leak inquiry into the AP story, which was published last May and included details of a CIA operation in Yemen and Saudi Arabia that foiled an al-Qaeda plot to set off explosives on a U.S.-bound airplane.
Officials said the disclosures risked endangering a U.S. operative in Yemen. But the AP said that it delayed publishing its story on May 2, 2012, because federal officials cited national security concerns. The AP published its story on May 7 only after federal officials told the news organization that the concerns had been allayed, according to the AP.
A grand jury was empaneled in Washington’s federal court this year to begin hearing evidence in the case. In February, at the request of national security prosecutors in Machen’s office, the grand jury issued subpoenas for telephone companies to turn over records for the AP reporters in Connecticut, New York and Washington for the two-month period before the story was written.
The AP was notified of the records’ seizure based on a specific timeline spelled out in Justice Department rules, an agency official said. The department is required to notify media organizations within 45 days that records have been obtained or seek a 45-day extension and then alert the news organization. In the case of the AP, the Justice Department waited 90 days.
“You can assume all the boxes were checked and proper steps were taken here,” said a government official with knowledge of parts of the inquiry, speaking on the condition of anonymity to discuss an ongoing probe. “They knew there would be blow-back.”
Pruitt, the AP president, said Tuesday that Cole’s letter did not address the organization’s concerns, adding that it failed to provide a reason for the broad scope of the subpoenas or for investigators’ decision to keep the seizure secret. Pruitt reiterated that the AP did not publish its story until after officials assured the organization that the national security concerns they originally cited had passed.
Jamie Gorelick, a former deputy attorney general and now a partner at the WilmerHale law firm, said the publication of the details of the Yemen plot appears to be serious enough to justify the steps the Justice Department has taken to investigate the leak. “Those are really sensitive operational details, where lives can be saved or lost,” she said.
Gorelick said that she remembers the pressure to get to the bottom of leaks when she was in the department — and that she imagines that Holder is under even more pressure to investigate such leaks now since the attacks of Sept. 11, 2001.
“There is a lot of pressure on the department from the national security community to turn over every rock in these cases,” she said. “I remember getting calls from the secretary of defense, Bill Perry, saying: ‘This is unacceptable. You have to do something.’ I imagine the pressure is even greater now.”
Julie Tate contributed to this report.