Attorney General Eric Holder- J.Scott Applewhite/A.P.

As is their pattern, defenders of the president offer a straw man in regard to the subpoena of Associated Press phone records:  Shouldn’t we investigate leaks?

Duh, yes. The entire question, however, revolves around the extent of the probe and its necessity. Only the Richard Nixon fan club would argue, for example, that it is okay to willy-nilly conduct surveillance of the press on a leak that wasn’t actually a threat to national security.

The AP issue revolves around several issues.

Did the AP endanger national security?

The Post reported:

For five days, reporters at the Associated Press had been sitting on a big scoop about a foiled al-Qaeda plot at the request of CIA officials. Then, in a hastily scheduled Monday morning meeting, the journalists were asked by agency officials to hold off on publishing the story for just one more day.

The CIA officials, who had initially cited national security concerns in an attempt to delay publication, no longer had those worries, according to individuals familiar with the exchange. Instead, the Obama administration was planning to announce the successful counterterrorism operation that Tuesday.

In this vein the investigation looks like a peevish retaliation against the A.P. for ruining the administration’s bragging when it finally published after the all-clear advisory. It looks even worse for the administration when you consider:

When the journalists rejected a plea to hold off longer, the CIA then offered a compromise. Would they wait a day if AP could have the story exclusively for an hour, with no government officials confirming it for that time?

The reporters left the meeting to discuss the idea with their editors. Within an hour, an administration official was on the line to AP’s offices.

The White House had quashed the one-hour offer as impossible. AP could have the story exclusively for five minutes before the White House made its own announcement. AP then rejected the request to postpone publication any longer.

Under these circumstances, it is hard to believe that the AP’s release of the story on Monday threatened national security. In fact, the news organization was explicitly told at that point that it did not. Foiling the ability of the administration to chest-thump is not the same as endangering national security.

What direction did the White House give?

We know this administration is leak-obsessed. It has prosecuted more leaks than any administration while self-leaking favorable data on the Osama bin Laden assassination to the dismay of then-Secretary of Defense Robert Gates. Was there a standing order (or one given in this case) to go after leaks without regard to First Amendment concerns and in contravention of standing Department of Justice rules for limiting the scope of investigations invading reporters’ privacy? Did the president ever make clear (as he has in self-serving speeches after the fact) that there had to be a balance between First Amendment rights and national security?

What’s up with Eric Holder?

He needs to fess up about what actions he took before allegedly recusing himself, whom he put in charge, what direction that person was given, how others in DOJ were made aware of the recusal and whether that recusal was compromised in any way.

What was the deputy attorney general James Cole thinking?

As detailed in their letter to Cole and Holder, about 50 news organizations assert that DOJ did not follow legal guidelines on investigations that impair First Amendment rights:

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 (See § 9-13.400). 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 cellphone records of individual journalists, the department appears to have ignored or brushed aside almost every aspect of the guidelines.

The news organizations then detailed the ways in which the A.P. investigation did not conform to the guidelines designed to protect the First Amendment. Cole’s reply was as amateurish as it was unilluminating. He claims narrowing the time period to two months was sufficient. He said the massive surveillance was taken after 550 interviews, but says he can’t say anything more. Why should we trust him? His squirrely response includes no mention of the negotiation with the AP described above.

With whom did Cole consult, and did the White House have knowledge about spying on the AP?

It is hard to fathom that a deputy attorney general would take on an unprecedented intrusion into a news organization on his own without consulting anyone. It is important to know with whom he consulted and if any political appointees inside or outside of the DOJ were involved.

The Justice Department obviously can’t and won’t investigate itself. This is precisely the reason for an independent prosecutor to be appointed. Otherwise a gross abuse of power and Holder’s own testimony can’t be investigated.

Congress can certainly conduct hearings, but I suspect Holder et. al won’t cooperate.

There is another way of getting at this: Sue the Justice Department. That’s right. In the Bivens case from 1971, the Supreme Court found there was an implied right of action for individuals to sue authorities who violated their Fourth Amendment rights. Bivens was subsequently held to apply to a variety of other constitutional violations, including the First Amendment. This is precisely the sort of case in which a Bivens action against Holder, Cole and/or others can be used both to remedy the wrong done to the AP and its employees and to conduct discovery into what occurred. I am sure attorneys would line up around the block to take the case pro bono.

In short, the AP case is serious and an affront to a free press. If the president won’t appoint a prosecutor independent from the Justice Department and won’t cooperate with Congress, the AP and/or the affected reporters and editors should take to the courts. Indeed, I would suggest it is their ethical obligation to do so.