By DANA MILBANK
The Washington Post
WASHINGTON — Eric Holder is in a mess of his own making. Two weeks ago, the attorney general testified to the House Judiciary Committee in categorical terms: “With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.”
Then The Washington Post published the text of an affidavit Holder had previously authorized in an espionage case saying there was “probable cause” to believe journalist James Rosen was a “co-conspirator and/or aider and abettor” because of a leak he received. The affidavit cited “the reporter’s own potential criminal liability in this matter.”
Now House Republicans are talking about perjury, and it would seem that they have, well, probable cause. As a legal matter, this isn’t a worry for Holder. His Justice Department isn’t going to prosecute him for perjury, just as it didn’t prosecute him when lawmakers held him in contempt of Congress: (BEG ITAL)L’Etat c’est lui(END ITAL). But the controversy left Holder with a serious credibility problem at a time when many Republicans want him out and Democrats are not eager to defend the Obama administration’s intrusions into the First Amendment with its obsessive leak investigations. Holder managed to make the situation even worse last week when he arranged to have a series of meetings with news organizations but then decreed that the sessions would be off the record.
What exactly Holder is up to is anybody’s guess. He has given only one interview during this debacle, telling Daniel Klaidman of The Daily Beast that “our laws and guidelines need to be updated” for leak investigations. His aides told Klaidman that Holder had “a creeping sense of personal remorse” about the leak probes, which on his watch are unprecedented in number and unreasonably sweeping. But is his “remorse” real and his vow to fix the problem genuine? Or is he just saying soothing words until the controversy recedes? It wasn’t encouraging that Holder’s long-time friend Reid Weingarten told The New York Times that he had heard no such expressions of remorse from him. I’ve defended Holder in the past, such as when Republicans maligned him during their “Fast and Furious” investigation into gunrunning. If the attorney general is serious about making changes, I wanted to give him the benefit of the doubt. So on Thursday I requested an interview with Holder; the request was denied. I asked whether Holder would commit to any of the changes to Justice Department guidelines for prosecutors that First Amendment advocates say — and even some administration officials admit — are necessary. (For example, the guidelines, last updated in 1982, don’t cover email.) A Holder adviser said the attorney general, who promises to produce new guidelines by July 12, was not yet ready to endorse any changes.
I asked if Holder, or the administration, would explicitly endorse the “shield” legislation proposed by Sen. Chuck Schumer, D-N.Y., protecting journalists in certain leak prosecutions; Holder had endorsed the same legislation in a letter to the Senate in 2009, and the White House recently encouraged Schumer to reintroduce it. I eventually got a statement not from Holder but from Matt Lehrich, an assistant press secretary in the White House, saying “the administration strongly supports” the Schumer bill.
I hope that’s true, but the record isn’t encouraging. The Schumer proposal was itself watered down in 2009 at the administration’s insistence, and even that relatively weak bill died in Congress after the White House declined to push for it. A stronger bill offered by liberal Rep. John Conyers, D-Mich., and tea party Rep. Ted Poe, R-Texas, isn’t supported by the administration and has little chance of passage.
The issue wouldn’t have been revived at all if not for the Obama administration’s upending of the previous system, which relied on prosecutors’ self-restraint. That arrangement broke down when prosecutors tested the limits of the nonbinding and outdated guidelines as they pursued more leak cases than had all previous administrations combined.
Prosecutors, no longer restraining themselves, now need courts to restrain them. The shield law would do that by requiring prosecutors to go to a federal judge before they suspend certain press freedoms. “This is too important to be left to internal guidelines,” says Kurt Wimmer, a lawyer representing the newspaper industry. “This isn’t about what you serve in the cafeteria. This is the First Amendment.”
It’s not too late for Holder to make a serious push for a shield law. As a bonus, he might also restore his credibility.
Dana Milbank is a columnist for The Washington Post whose work appears Mondays and Fridays. Email him at email@example.com.