Claiming “flat out falsehoods” on Fox, Texas Senator names none. How come so many people are howling for Eric Holder’s head?
Attorney General Eric Holder, under growing pressure from many in mainstream media and elsewhere for his “attacks” on the First Amendment in general, and reporters in particular, had a lifeline thrown to him awhile back by an unlikely combination — Texas Republican Senator Ted Cruz, on Fox News, May 30:
“It’s unprecedented. The degree of willingness of this administration to target a reporter for this network as an unindicted co-conspirator — I mean, that is without precedent. And unfortunately, I think it’s part and parcel of a pattern from this administration of not respecting the Bill of Rights….
“I think President Obama needs to take responsibility and needs to tell the truth. You know, in recent weeks, there are at least two instances of senior officials for the administration telling flat out falsehoods.”
Sen. Cruz was referring primarily to the recent news that Fox News reporter James Rosen was investigated in relation to his 2009 stories based in part on leaks about U.S. responses to “repeated provocations” by North Korea. Part of the problem for Rosen is that he unnecessarily revealed that the CIA had a source in North Korea then, though probably not now.
The Justice Department had subpoenaed Rosen’s phone and email records as part of its leak investigation, issuing a subpoena (technically a 44-page application for a search warrant, issued under seal, for the period May 28-June 11, 2010) that characterized Rosen as “an aider and abettor and/or co-conspirator” in relation to the leaks. The search warrant granted by U.S. Magistrate Judge Alan Kay required no notice to Rosen for 30 days.
On May 22, 2013, acting on motion by the United States, Judge Royce Lambeth issued a 183-page order to “unseal and place on the public docket redacted versions of the documents” (including the sealed search warrant) and to give “unredacted versions of all the unsealed material to the defense” in the case against Rosen’s source.
Government Has Two Kinds of Leaks — Ones It Makes, Ones It Prosecutes
Two years after the search warrant, reporter Rosen has not been charged with any crime. Another, more famous unindicted co-conspirator, Richard Nixon, was never charged with any crime. On May 31, the Justice Department said in a statement that its prosecutors had never sought approval to bring criminal charges against Rosen and that the department did not anticipate bringing any such charges.
The statement added that: “During the Attorney General’s tenure, no reporter has ever been prosecuted.” (On March 14, 2013, Forbes reported, the Justice Department indicted reporter Matthew Keys on three counts of hacker-related felonies, punishable by 10 years in prison and $250,000 in fines.)
Rosen’s alleged source, Stephen Jin-Woo Kim, was a State Department contractor after getting a masters degree from Harvard and a Ph.D. from Yale. He was an expert in North Korea’s nuclear weapons program. In August 2010, a grand jury indicted him on two charges: “unauthorized disclosure of National Defense Information (under the Espionage Act) and making false statements. He has pled not guilty and his trial is pending.
Kim’s attorneys and others (like Michael Isikoff) suggest that if Kim is indictable, than so might be Washington Post reporter Bob Woodward, for National Defense information revealed in “Obama’s Wars,” Woodward’s book published late in 2010.
Free Speech Defender Defends Justice Department, Sort Of
As for the claim that the Obama administration is “criminalizing journalism,” attorney Peter Scheer of the First Amendment Coalition, “dedicated to free speech and government transparency,” suggests that the labeling of Rosen was the government’s solution to a conflict between statutes that could have prevented it from pursuing the leak:
“Although the FBI affidavit seems to criminalize investigative journalism (in the national security arena, at any rate), a closer look suggests the government included these allegations not to set the stage for prosecuting Rosen, but, rather, to satisfy the requirements of the First Amendment Privacy Protection Act (42 USC section 2000aa & b). That law effectively forbids search warrants for ‘materials’ belonging to journalists except when ‘there is probable cause to believe’ that the journalist ‘has committed… the criminal offense to which the materials relate.’…
“The FBI’s allegations against Rosen apparently were made to qualify for this exception. This is a defensible tactic when you realize that the government often refrains from charging persons whom it deems chargeable in a criminal investigation.”
But Sen. Cruz says it’s all unprecedented.
Unprecedented? Attorney General John Mitchell, under President Nixon?
In 1971, the publication of the Pentagon Papers by the New York Times set off one of the most important leak cases in American history. At the time, Attorney General Mitchell, like Holder today, was solidly on the side of secrecy, or as it’s alternatively called: the ability to govern (or similar euphemism). Mitchell asked the Times not to publish the papers dealing with the history of the Viet-Nam war (prior to the Nixon administration), claiming that disclosures of this truth would cause “irreparable injury to the defense interests of the United States.”
The Times refused, Mitchell took the Times to court (even though President Nixon was reluctant, since the papers were discrediting Democrats), and a short time later the Supreme Court ruled unanimously against the administration. In this context, on June 17, 1971 (exactly a year before the bungled Watergate break-in), President Nixon ordered a break-in at the Brookings Institution, in the belief there was a set of the Pentagon Papers there.
The President and Mitchell discussed going after Daniel Ellsburg, one of Henry Kissinger’s former students (“the brightest student I’ve ever had”), who had leaked the Pentagon Papers. By then, White House operatives had already burglarized Ellsburg’s psychiatrist’s office in May 1971, apparently making copies of Ellsburg’s psychiatric files. These were among the activities that Mitchell came to refer to collectively as the “White House Horrors.”
White House Horrors Preceded Watergate Break-in and Cover-up
In 1972, when Katherine Graham owned the Washington Post and was allowing her paper to publish article after article about Watergate, Mitchell was asked about a story about a political slush fund [true] and told reporter Carl Bernstein:
“Katie Graham‘s gonna get her titcaught in a big fat wringer if that’s published.”
Mitchell, who served 19 months in prison for conspiracy, obstruction of justice, and perjury, died of a heart attack at the age of 75 in 1988 and was buried with full military honors at Arlington National Cemetery, based in part on his service in the Navy in World War II.
In 2008, James Rosen, before he worked for Fox News, finished a 600-page book partially underwritten by a grant from William F. Buckley – “The Strong Man: John Mitchell and the Secrets of Watergate” published by Doubleday. He had started it 17 years earlier.
A review in Human events began: “After spending 17 years plowing through thousands of previously unpublished and unexamined Watergate-related documents and tapes, Fox News Reporter James Rosen has written a terrific biography of one of the most powerful, yet least known players from the Nixon era, John Newton Mitchell.”
Unprecedented: Named Co-Conspirator Wrote Bio of Convicted Co-Conspirator
Writing in the Wall Street Journal, Jonathan Karl of ABC News, said of the book:
“Though Mr. Rosen attempts to restore Mitchell’s reputation, ‘The Strong Man’ is no whitewash. Mr. Rosen presents the evidence of Mitchell’s abuse of the public trust in detail, including the extensive espionage he ordered of left-wing groups and his secret efforts to undermine the 1968 Paris Peace Talks by secretly urging South Vietnamese officials not to agree to a peace deal that Mitchell and Nixon feared would tip the election in Hubert Humphrey’s favor.
“These abuses are mitigated only by the fact that others around him were more corrupt. ‘Mitchell used his power to advance the greater good,’ Mr. Rosen writes, ‘which he happened to see as indistinguishable from the fortunes of Richard Nixon’.”
The targeting of James Rosen in 2009, which seems to have had nothing to do with partisan politics, has now, in 2013, contributed to great hue and cry, among beltway journalists and Republicans especially, with Sen. Cruz making perhaps the most demagogic comments, though hardly unprecedented. But it’s this over-reach, this detachment from documentable reality that will help Eric Holder the more it makes him look like a victim and scapegoat.
At this point it’s not clear what, if anything, Eric Holder may have done that was unethical and/or criminal. What is clear is what he hasn’t done – he has not engaged in the least bit of overzealous prosecution of bankers, torturers, executive branch war criminals, or others who have done so much damage to the country in recent decades.
And almost no one takes him to task for that.