By Representative Sensenbrenner
June 7, 2013
By my count, Attorney General Eric Holder said some version of "I don't know" 30 times in response to questions at the House Judiciary Committee's recent hearing. His evasive testimony epitomized what has seemed like an almost compulsive effort at the Justice Department to avoid accountability.
On May 3, 2011, Holder testified that he "probably heard about Fast and Furious for the first time over the last few weeks." House investigators soon realized, however, that updates on the Fast and Furious program were included in weekly briefings to the attorney general beginning at least 10 months earlier in July 2010. The attorney general nonetheless maintained that he had not read the briefings and his testimony was "truthful and accurate."
Sen. Chuck Grassley (R-Iowa) then noted he had personally handed the attorney general a letter on Fast and Furious over three months before the hearing. Faced with this, Holder conceded, "I probably could've said 'a couple of months.'"
This game of who-knew-what-when sounds like political gotcha, but Congress is charged with overseeing the administration, and oversight is impossible when the attorney general claims to be unaware of everything that happens under his watch.
Consistent with this policy of "see no evil, hear no evil," on May 15, 2013, Holder told the House Judiciary Committee: "In regard to potential prosecution of the press for the disclosure of material — this is not something I've ever been involved in, heard of, or would think would be wise policy."
The attorney general was right that it was not a wise policy, but unfortunately, everything else he said was misleading. Holder's testimony was in response to questions about the department's shockingly broad subpoenas of the Associated Press's phone calls. Holder had recused himself from the AP investigation — though the details of when and why he recused himself remain vague — so he believed he was insulated from accusations of wrongdoing. Soon after the hearing, however, it became public that the department had secured a warrant to obtain email records of Fox News reporter James Rosen, and this time, the attorney general was involved in the decision to issue the warrants.
The Department of Justice rallied to defend its attorney general. A department official told the Huffington Post: "To our knowledge, the Department of Justice has never prosecuted a reporter. No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official."
Except Holder did not say he had no knowledge of prosecutions, he said he had no knowledge of potential prosecutions. Why is the Department of Justice swearing under oath that it had probable cause to believe James Rosen violated the Espionage Act if it was not considering a prosecution for the crime? Why was it subpoenaing AP records from 20 phone lines if it was not considering prosecuting AP reporters?
The scope of the department's warrant is also inconsistent with its contention that it was not investigating Rosen. The department's warrant granted access not only to Rosen's communication with the State Department's Stephen Kim, who the department is prosecuting for disclosing classified information, but also to "[a]ny document, image, record, or information concerning the national defense ...and other Department of Defense, U.S. military, and/or weapons material... and any communications concerning such documents, images, records, or information."
Further, the department argued to three federal judges before it finally convinced a judge to allow it to keep its warrant for Rosen's emails a secret. The secrecy was important to the department because it wanted to continue monitoring Rosen's email over an extended period of time.
With both Fast and Furious and the press investigations, if the attorney general is telling the truth, the truth is probably worse than the lie. If the attorney general first heard of Fast and Furious from Grassley, whistleblowers had to reach out to Congress to get the attorney general to notice wrongdoing within his own department. If the Department of Justice has truly never considered a potential prosecution of the press for the disclosure of material, then the attorney general believes it is appropriate for the government to access reporter's personal records even if he believes they have done nothing wrong.
Holder's lack of accountability and control over his department has lost him the trust of both Congress and the American people. He should resign — a small step toward a renewed trust in a broken Washington plagued with scandal, debt and political games.
Did Eric Holder lie to Congress? It's my turn to say, "I don't know," but I might have more confidence in his leadership if we find out he lied because the alternative suggests gross mismanagement and a complete lack of respect for the First Amendment.
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