Why Attorney General Eric Holder is in the hot seat

McClatchy Washington BureauMay 30, 2013 

US NEWS OBAMA-POLICE 12 ABA

President Barack Obama and Attorney General Eric Holder

OLIVIER DOULIERY — Abaca Press/MCT

— Attorney General Eric Holder met Thursday with several news media representatives in an off-the-record discussion of the fallout from Justice Department leak investigations. That fallout is touching Holder himself, as congressional Republicans this week cited “discrepancies” between his sworn testimony and other public records.

At least half-a-dozen news organizations, including McClatchy, declined to attend sessions with the attorney general this week because the discussions weren’t on the record.

Q: What’s the fuss about?

A: Two Justice Department investigations are in the spotlight. One involves a May 2012 story from the Associated Press about a foiled al Qaida plot. Leak investigators subsequently obtained, in secret, AP reporters’ telephone records covering two months.

The other investigation involved a June 2009 account by a Fox News reporter about North Korean nuclear weapons. The story revealed that the United States had a secret source on North Korean developments.

Q: The FBI obtained a search warrant in the North Korean leak case. What did investigators want?

A: In a May 28, 2010, search warrant application, an FBI special agent explained that investigators wanted emails from the Google account of Fox reporter James Rosen. Rosen allegedly had been in close contact with Stephen Jin-Woo Kim, a former State Department employee who specialized in North Korea.

Q: Was the FBI investigating Rosen or Kim, or both?

A: Kim was indicted in 2010 on charges of making false statements and unauthorized disclosures. He’s awaiting trial. No charges have been filed against Rosen.

The 2010 search warrant application, though, cited Rosen’s legal vulnerability. Throughout the 44-page application, Special Agent Reginald Reyes repeatedly declared that “there is probable cause to believe that the reporter has committed or is committing a violation of (the law concerning) unauthorized disclosure of national defense information, as an aider, abettor and/or co-conspirator.”

Reyes further cited “the reporter’s own potential criminal liability” as grounds for obtaining a secret warrant instead of simply asking him for the emails.

Q: What did Holder say about his own role in the consideration of a reporter as a potential criminal suspect?

A: Speaking in a slightly different context, he indicated that he had nothing to do with it.

At a May 15 hearing, a Democratic congressman asked Holder about the AP case, which hasn’t involved the question of whether reporters could be treated as criminal suspects. The congressman didn’t mention the Kim investigation, whose contours hadn’t yet become public and which does involve that question. But he offered Holder a chance to speak generally.

Holder said: “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. In fact, my view is quite the opposite.”

Q: What did the Justice Department subsequently say about Holder’s role in approving the 2010 search warrant?

A: It suggested that, at the least, he was aware of it.

The Washington Post first revealed the Rosen search warrant on May 19. On May 24, the Justice Department said in a statement:

“The department takes seriously the First Amendment right to freedom of the press. In recognition of this, the department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the department, including discussions with the attorney general.”

Q: How does the Obama administration explain this now?

A: On Wednesday, White House spokesman Jay Carney said Holder had testified truthfully. Carney stressed that since “no further charges or prosecution is contemplated” in the Kim-Rosen investigation, Holder was accurate when he said that potential prosecution of the press was “not something that I’ve ever been involved in, heard of or would think would be a wise policy.”

Q: What other explanations might there be?

A: While the pointed language of the FBI’s search-warrant application may have been deemed necessary to convince the judge of its necessity, top officials might have been thinking from a prosecutorial standpoint strictly about Kim. In their minds, perhaps Rosen was never a target.

The Justice Department’s phrasing, that there were “discussions” with the attorney general, also raises the possibility that Holder may have been briefed only broadly on an investigation that was never intended to target the reporter.

Q: What do the Republicans hope to get out of this?

A: The truth, of course, but political considerations are unavoidable – in either party – on Capitol Hill.

Sen. Lindsey Graham, R-S.C., has called for a special prosecutor to look into the leak investigations. Other Republicans have repeated their calls for Holder’s resignation, first raised a year ago over the so-called Fast and Furious gun-dealing scandal.

Republicans also might see a political advantage in keeping Holder on the defensive, as part of a broader campaign against the Obama administration. By piling up allegations, Holder’s critics, perhaps, hope to put enough pressure on him to force his resignation

The 62-year-old Holder might well have his own reasons for wanting to leave the high-pressure Justice Department post before the end of his second term. Sometimes officials wait until they can seem to be acting of their own accord.

Q: Does the Justice Department have special rules governing news-media investigations?

A: Yes, but their reach is unclear.

Under the Code of Federal Regulations, “no subpoena may be issued to any member of the news media or for (a reporter’s) telephone toll records” without the express authorization of the attorney general. The attorney general’s prior approval also is needed for other actions, including the questioning of a journalist for a crime committed while reporting.

However, the regulations from 1980 don’t refer to more modern actions, including obtaining a reporter’s email. In a statement this week, the Justice Department said:

“We look forward to both describing the department’s policies and establishing that the attorney general’s testimony concerning the potential prosecution of the press was consistent with the underlying facts with respect to the investigation and ultimate prosecution of Mr. Kim.”

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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