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Holder’s recusal and the leak investigation are unprecedented

Attorney General Eric Holder told the House Judiciary Committee he recused himself from the leak investigation involving sweeping surveillance of the Associated Press because he was a “fact witness,” meaning he had access to the classified data at issue and was questioned about it. But he can’t recall when he recused himself. And it wasn’t in writing. In one of the worst security leaks of which he is aware (he says), he never told the White House (he says) that he took himself out of the loop.

Remarkable really, even if true. John Yoo, who authored the enhanced interrogation memos in the Bush Justice Department and was widely criticized by the left for taking a broad view of executive power, was somewhat incredulous when I asked him about the Justice Department’s behavior. As for the paperless recusal, he told me, “There must be something in writing to at least the DAG [deputy attorney general].”

Former attorney general Michael Mukasey agreed, emailing me that “it is inconceivable to me that you would not do it formally. Of course, you’d have to inform all the people who might otherwise have to contact you. Indeed, if you didn’t you might conceivably come into possession of information you should not have.” He added that “in the one case I can recall in which I recused myself I did it in writing. Hard to imagine how else you’d do it — shout ‘I recuse myself’ in your office? In the hall?”

But it is the unrestrained nature of investigation that is breathtaking, beyond anything Mukasey has seen, he told me. Yoo observed, “I cannot think of another example this broad that didn’t turn out to be unauthorized. The only comparable thing was cases where a court tried to get a journalist to reveal a source. But I cannot think of the actual monitoring of reporters and editors.” He added, “If something like that had ever come up during the Bush administration in my time at DOJ, I would have said it was unconstitutional.”

Apparently no senior officials in this administration, including the president, know much of anything — and maybe don’t want to know. The AP’s chief, in his letter of complaint to Holder, observed:

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the news gathering activities undertaken by the AP during a two-month period, provide a road map to AP’s news gathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.
That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.” This plainly did not happen.

So how was this determination made? Why wasn’t the AP contacted? Holder doesn’t know. The White House claims not to know. No one at the cabinet level or above knows that the most egregious interference with press freedom in recent memory was undertaken?

Holder took a bipartisan beating at the hands of House Judiciary committee members. Rep. Zoe Lofgren (D-Calif.) lectured him: “Reporters who might previously have believed that a confidential source will speak to them will no longer have that level of confidence.”

The Post joined about 50 other news organizations in a letter to Holder and his deputy blasting the snooping. It read in part:

Subpoenas of the news media for testimony and evidence are governed by the Attorney General’s guidelines found at 28 C.F.R. § 50.10 and incorporated into the U.S. Attorney’s Manual. . . . These guidelines were enacted in 1972 and were expanded specifically to cover telephone records in 1980. They were developed to accommodate both the interests of the government in prosecuting crime and the First Amendment interests in reporting on issues of public concern. We know this to be true because the Reporters Committee played a role in their promulgation. In this instance,where the Department subpoenaed two months of records related to 20 telephone lines, including records from major AP bureaus and the home phone and cell phone records of individual journalists, the Department appears to have ignored or brushed aside almost every aspect of the guidelines . . . .
It should immediately return the telephone toll records obtained and destroy all copies, as requested by The Associated Press. If it refuses, it should at the very least segregate these records and prohibit any further use of them at this time. It should explain how government lawyers overreached so egregiously in this matter and describe what the Department will do to mitigate the impact of these actions. Additionally, the Department must also publicly disclose more information on who has had access to the records and what protections were taken to ensure that information unrelated to a specific criminal investigation was not utilized by any Department employees. . . .And finally, the Department should announce whether it has served any other pending news media-related subpoenas that have not yet been disclosed.

The president plainly hates leaks. He has investigated and prosecuted more leaks than any president. So he set the tone: Get those leakers! And either Holder or someone below him took that sentiment quite literally and went after reporters’ records with abandon. The result was an egregious infringement of the free press.

Is this what the president wanted? If not, why are Holder and his deputy still there? And if this is the sort of governmental overreach Obama approves of, then he owes the Bush administration — whom he railed at for abusing the Constitution — one heck of an apology. Never did the Bush administration, even in the face of countless leaks, go on this sort of binge, the intent of which is to signal to every member of the media and all possible sources to back off.

I’m sure there are lefty bloggers and pundits who will defend this (Media Matters is just the most buffoonish version of a cult of White House excuse-makers masquerading as independent journalists). But look what they would defend — the abject misuse of government power and the intimidation of those who inform the public of what is going on inside an entirely dysfunctional government.