Attorney General Eric Holder didn’t lie to Congress. And, despite the fevered hopes of his detractors on Capitol Hill and nervous nellies in the West Wing, the nation’s chief law enforcement officer shouldn’t resign. Sure, he’s a lightning rod. Name a recent attorney general who wasn’t. That his outburst last month at House oversight committee chairman Rep. Darrell Issa (R-Calif.) was the only time he has lost his cool is a testament to his ability withstand a torrent of [barnyard epithet goes here].
That’s not to say that the source of Holder’s problems are neither serious nor worthy of investigation. The subpoenas for phone records at the Associated Press and then that for James Rosen at Fox News revealed a thriving tension between the necessary freedom of the press to keep the public informed of the actions of its government and said government’s legitimate need to keep some national security secrets secret. And when it comes to boiling down what’s really at issue here, there is no one better to heed than my Post colleague Walter Pincus. In two columns last month, the veteran national security reporter got right to the heart of the matter
“Given past leak investigations in the Bush and Obama administrations, journalists at the AP and elsewhere know they could face scrutiny,” Pincus wrote in a May 20 column. “Like it or not, they are part of a crime. The leaker or leakers had taken an oath under the threat of prosecution to protect the information.”
In the Rosen case, where the Fox News reporter was listed as a “co-conspirator” in an application for a search warrant in the investigation of leaked classified information on North Korea, Pincus gave a necessary explainer on how what happened to Rosen was not unusual in a May 27 column.
To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
Which brings me back to Holder. On May 15, he told a congressional committee, “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I’ve ever been involved in, heard of or would think would be a wise policy.” The Post would later report the news about Rosen.
In true lawyer fashion, Holder answered the question he was asked. The federal government has not prosecuted a journalist for the disclosure of classified material. And there is a big difference between prosecution and investigation. As we know from Pincus and others, journalists are investigated all the time. But I cannot recall a time when a reporter was prosecuted by the federal government for disclosing classified material.
The actions of Issa and other congressional Republicans against Holder are really part of their proxy war with President Obama. Anything to slow down his agenda and hobble him in the eyes of the public. That West Wingers are cowering in fear over the political damage all the controversy might have on the White House shows it might be working. But know this. If Holder leaves it won’t be because the president pushed him out. It’ll be because he has had enough of the [barnyard epithet goes here] of Washington.
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