Attorney General Eric Holder, a political lightning rod for Republican critics of the Obama administration, is under fire for two cases involving secret subpoenas or searches for phone records and other information of journalists involved in reports about leaked classified information.
1. What’s the problem?
In the first case, the Justice Department last year obtained two months of phone records for reporters and editors at The Associated Press as part of a probe that the news service said was focused on its account of a foiled plot to bomb a U.S. airliner in May 2012.
The second case involves subpoenas and search warrants in 2010 to obtain phone records, e-mails and security badge tracking of a Fox News correspondent who reported on classified intelligence about North Korea in 2009.
Members of the press and critics led by Republican foes of Holder complained the covert surveillance amounted to targeting journalists as potential criminals, which would chill investigative reporting and potentially violate First Amendment rights of a free press.
In the investigation of leaks to the AP, employees of the news service were never singled out as potential criminals.
However, the affidavit for a search warrant in the Fox case included an FBI agent’s statement that a network reporter – later identified as James Rosen – could potentially be an “aider and abettor and/or co-conspirator” to the crime of disclosing secret information.
In addition, Justice Department officials confirmed that Holder took part in “discussions” about seeking the search warrant.
The Justice Department did not prosecute Rosen, nor did it file charges against him. While he was listed as a “co-conspirator,” that often does not mean he would be considered a target.
Last week, President Barack Obama ordered Holder to review government practices in investigating leaks of secret information.
His administration has been more aggressive in probing classified leaks than those of his predecessors, but Obama said he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”
Some Republicans complained that Holder’s involvement meant he would be reviewing himself, due to the affidavit that said he took part in discussions on a search warrant of Rosen’s phone records and emails.
2. What are the latest developments?
On Wednesday, the GOP leaders of the House Judiciary Committee sent Holder a letter asking for further information about whether he lied to Congress when he said at a May 15 hearing that he never took part in any “potential prosecution of the press for the disclosure of material.”
“… That is not something that I have ever been involved in, heard or, or would think would be wise policy,” Holder said in response to questioning by Democratic Rep. Hank Johnson of Georgia on possible use of the Espionage Act to prosecute members of the news media for publishing classified information.
The letter to Holder from committee Chairman Bob Goodlatte of Virginia and Rep. James Sensenbrenner of Wisconsin noted that the affidavit for the search warrant for Rosen’s phone, e-mail and security badge information only became public after the May 15 hearing.
They questioned whether Holder’s response to Johnson’s question amounted to lying under oath because of subsequent media reports that the Justice Department confirmed Holder took part in discussions on seeking a search warrant.
“How can you claim to have never even heard of’ the potential prosecution of the press but were, at a minimum, involved in discussions regarding Mr. Rosen?” asked the letter by Goodlatte and Sensenbrenner.
While Holder was asked about the AP case at the May 15 committee hearing, the issue of the Fox reporter never came up.
White House spokesman Jay Carney said Wednesday that no prosecution ever took place in the Fox case, and therefore it was “self-evident” that any charge Holder lied to the House panel was “inaccurate.”
Implying that Republicans were playing politics, Carney said reporters should “be careful not to conflate facts with statements by members of Congress about what they want to be true.” Pressed further, he added that reporters were “conflating a subpoena with prosecution.”
Asked if Obama still had full confidence in the attorney general, Carney replied: “He absolutely does, yes.”
On Tuesday, Rep. John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, said Holder “was forthright and did not mislead the committee” on May 15.
“Certainly, there are policy disagreements as to how the First Amendment should apply to these series of leak investigations being conducted by the Justice Department and that is and should be an area for the committee to consider,” Conyers said in a statement. “However, there is no need to turn a policy disagreement into allegations of misconduct.”
Meanwhile, a Justice Department official said Wednesday that Holder will meet with officials from media organizations this week as part of his review of how the federal government handles leak investigations.
The meetings with chiefs of Washington bureaus will begin Thursday and include representatives from newspapers, wire services, radio and television broadcasters, and online organizations, the official said.
3. What’s the background?
With an eye toward the 2014 congressional elections and the 2016 presidential campaign, Republicans are trying to depict the Obama administration as rife with scandals.
These include the two cases involving Holder as well as IRS targeting of conservative groups and erroneous talking points about the Benghazi, Libya, terrorist attack.
Like many attorneys general, Holder has been a focus of political attacks throughout Obama’s White House tenure.
In particular, conservative Republicans have taken aim at Holder over efforts to close the Guantanamo Bay, Cuba, detention facility, a decision to stop enforcing the Defense of Marriage Act, and the handling of the botched “Fast and Furious” gun-walking program.
At the same time, Holder has been praised by Obama and liberals for taking a lead role on socially progressive issues such as gay marriage and immigration.
Last year, House Oversight Committee Chairman Rep. Darrell Issa of California led a GOP effort to cite Holder for contempt of Congress in a dispute over documents the panel sought in the “Fast and Furious” investigation.
Issa and other Republicans said Holder refused to turn over requested documents necessary for a full inquiry of the program in which federal agents allowed illegal weapons sales across the border with Mexico, then lost track of the firearms.
Holder maintained the House contempt vote boycotted by most Democrats amounted to political theater, and he recently criticized Issa for what he called a pattern of incomplete or misleading statements.
“It is inappropriate and it is too consistent with the way in which you conduct yourself as a member of Congress,” Holder said at the May 15 hearing of the judiciary panel that includes Issa. “It is unacceptable and it is shameful.”
4. What does Holder have to say?
At the May 15 hearing, Holder testified under oath that he had recused himself from the AP case because he had previously been questioned regarding who knew what about the classified leak. Therefore, he said, he had no role in last year’s decision by Deputy Attorney General James Cole to seek the secret subpoena of AP phone records.
Holder has yet to comment specifically on Rosen’s case. On Tuesday, he told reporters he was “not satisfied” with some federal guidelines on how prosecutors conduct leak investigations involving reporters.
“We’re going to have a real frank, good conversation about this,” Holder said. “And I think, we’re going to make some changes because I’m not satisfied with where we are.”
5. What happens now?
There will be more congressional hearings and investigations, more political rancor and the possibility of some fallout if further disclosures reveal Holder knowingly misled Congress or inappropriately concealed information.
His defiance in the face of the House contempt citation indicates Holder won’t voluntarily step down unless pressured to do so by Obama, who has steadfastly maintained confidence in him.
The question will be whether Holder becomes a liability for the president.
If the multiple controversies (IRS targeting, Benghazi, reporters phone records) continue to dominate the political discussion, Obama could decide a drastic gesture is needed to try to move past a climate of crises. However, nothing at this point suggests that is imminent or under consideration.
CNN’s Carol Cratty, Dana Bash, Kevin Liptak, Paul Steinhauser and Deirdre Walsh contributed to this report.