Morning Bell: Q&A on Scandals and Eric Holder

by Amy Payne and Hans von Spakovsky Heritage Foundation May 31, 2013

Attorney General Eric Holder is head of the Department of Justice—in charge of enforcing the nation’s laws. So what happens when the head law enforcer gets caught up in questionable conduct?

The Obama Administration is under scrutiny for the scandals of the IRS targeting conservative groups and the Justice Department investigating journalists, and Holder’s role is the focus of a lot of speculation. We sat down with Heritage senior legal fellow Hans von Spakovsky to get some context.

A number of news organizations including the Associated Press, CNN, and The New York Times just refused to meet with Eric Holder “off the record” about guidelines for investigating journalists. Have we even begun to get to the bottom of this?

A soured relationship with the press over the subpoenas of AP and Fox News phone records is just one of the problems that Holder faces. When he was asked about the AP investigation during an oversight hearing before the House Judiciary Committee on May 15, he told the committee that he could not provide them with information because he had recused himself from being involved in the case.

“Recusal” is the legal term lawyers use when they remove themselves from having any involvement in a case because of an actual or perceived conflict of interest. In the AP case, Holder said he had removed himself because he had been interviewed by the FBI about the leaks, although he testified that he told the FBI that he had not leaked any classified information.

So was he involved in obtaining the Fox News reporter’s phone records?

At the time of the oversight hearing I just mentioned, information about the investigation of the phone records of James Rosen of Fox News was not yet public. But in answer to a question from Rep. Hank Johnson (D-GA) about investigations of the press, Holder said, “with regard to potential prosecutions of the press for the disclosure of material, that is not something that I have ever been involved, heard of, or would think would be a wise policy.”

Yet we now know that the Attorney General “personally approved a decision to subpoena Fox News telephone records.” In fact, the affidavit that supported the subpoena request referred to Rosen as a possible “aider, abettor and/or co-conspirator” in the national security leak.

What’s being done about Holder’s inconsistent answers?

The discrepancy between Holder’s testimony and what actually happened at the Justice Department prompted the chairman of the House Judiciary Committee, Bob Goodlatte (R-VA), to send a letter to Justice on Wednesday expressing “great concern” over the fact that Holder’s testimony “appeared to be at odds” with the approval of the Fox News investigation and search warrant “at the highest levels” of the Justice Department.

This is a very polite way of raising the possibility that Holder may have misled the committee. Goodlatte asks for an explanation of the discrepancy and whether the “investigation of Mr. Rosen as a potential co-conspirator or aider/abettor was a ‘wise policy’?”

Our government should investigate the leak of classified information, especially any leak that endangers national security. But it appears, at least at this point, that the Attorney General’s actions and sworn testimony are not the last word on this saga.

Let’s not forget the IRS targeting of conservative groups trying to obtain tax-exempt status. Should Holder appoint a special prosecutor to investigate the IRS?

There have been some calls for Holder to appoint a special prosecutor, something that he has refused to do. The independent counsel statute, which was used to investigate prior scandals like Whitewater, has expired, so the only alternative to a normal investigation authorized by the Attorney General is for the AG to give a Justice Department attorney full authority to investigate and prosecute a case without going through the usual process of having the AG review and approve his decisions.

It is questionable whether such an appointment of a special prosecutor, like a U.S. attorney—all of whom are all political appointees just like Holder—would make any real difference in the investigation conducted by the Justice Department.

In any event, however, DOJ’s opening of a criminal investigation should not inhibit Congress from exercising its oversight function and conducting an extensive inquiry into why and how the IRS was targeting conservative organizations.

Read the Morning Bell and more en español every day at Heritage Libertad.

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