Presidents have had various thresholds for calculating the threshold of damage and the need for loyalty from his cabinet, but few presidents would consider any official so indispensable as to trump his own political well-being.
Until now, anyway.
Members of a presidential cabinet all have explicit responsibilities to run their respective agencies and implement the president’s policies. They also serve an important secondary role – to protect the President from political damage on scandals and failures. When such situations arise, a well-timed and sudden desire to spend more time with the family, or in rare cases a public firing, allows the president to appear decisive, in command, and proactive in repairing whatever damage has been done.
Last week, after revelations that two Department of Justice leak investigations had seized a massive amount of phone records from multiple offices of the Associated Press and snooped on Fox News reporter James Rosen’s e-mail, President Obama tried to address the sudden anger of a national media that had given him favorable treatment since his earliest days as a presidential candidate. Obama announced on May 23rd that while the DOJ needed to thoroughly investigate national-security leaks, the recent revelations “troubled” him.
“Journalists should not be at legal risk for doing their jobs,” Obama insisted, or it “may chill the investigative journalism that holds government accountable.” In order to get to the bottom of the problem, Obama announced that the man in charge of the Department of Justice, Attorney General Eric Holder, would be tasked “to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review.”
Within hours of that announcement, however, NBC News reported that the man who had approved the Rosen probe was in fact Holder himself. Holder signed the warrant application in 2010 to get access to Rosen’s e-mail accounts without notification by representing Rosen as “a possible co-conspirator” in violations of the Espionage Act of 1917, and a flight risk to boot. (For the record: Rosen, a Washington correspondent for more than a decade with Fox, has yet to skip town.)
That alone should have put a crimp in Obama’s plans to have Holder investigate his own department. However, Holder provided yet another damaging wrinkle to the already-explosive scandal. In sworn testimony to the House Judiciary Committee on May 15th (before the Rosen case broke), Rep. Hank Johnson (D-GA) asked Holder whether Justice had ever contemplated pursuing charges against journalists under the Espionage Act of 1917 while investigating leaks – a friendly attempt to get Holder on record about the limits of prosecutorial reach. In direct response, Holder replied non-committedly, “You’ve got a long way to go to try to prosecute the press for publication of material.”
Rather than leaving it at that, Holder returned unbidden to the topic when Johnson allowed him the remainder of his time. “In regard to potential prosecution of the press for the disclosure of material,” Holder told the panel, “this is not something I’ve ever been involved in, heard of, or would think would be wise policy.” The nation’s top lawyer fell into a perjury trap of his own making, as the Rosen warrant signed by Holder explicitly represented to the court that Justice did indeed consider him a prosecution target under the espionage statute.
In fact, it gets worse than this. The warrant application actually ended up in three courtrooms, because the DOJ couldn’t get the first two federal judges to approve the unlimited time frame Holder requested. In essence, writes Ian Tuttle at NRO, the DOJ went judge-shopping with Holder’s warrant. That makes it very difficult for Holder to argue that he simply forgot about the Rosen case when speaking on the 15th, although he will soon have to give some sort of explanation.
The House Judiciary Committee formally opened a perjury investigation on Wednesday into Holder’s statement, demanding answers as to how Holder could have failed to recall his involvement in the Rosen case while denying that the DOJ went after reporters as conspirators in espionage.
This is precisely the kind of scandal for which cabinet positions – and cabinet resignations – are designed. Yet, even after almost a week past the exposure of Holder’s false testimony and his personal involvement in the targeting of journalists, Obama has had nothing further to say. At this point, at least, his statement of confidence in the Attorney General – now at serious risk of a perjury charge – remains in force.
A SLOW BURN OVER FAST AND FURIOUS
Nor is this the first time that Holder has placed Obama in political danger. Previously, the exposure of Operation Fast and Furious at the ATF (a bureau within the Department of Justice) turned into an embarrassing and deadly debacle. Thousands of firearms got trafficked across the southern border, used in hundreds of killings in Mexico and at least one murder of a Border Patrol officer in the U.S. The House Oversight Committee led by Darrell Issa opened an investigation into the ATF and the DOJ, which came to a halt when Holder refused to comply with a subpoena.
Normally, a president would have cut ties with a cabinet official at that stage. Obama, however, exercised a claim of executive privilege on Holder’s behalf, tying the president to the scandal and setting up a constitutional fight over the issue.
The two scandals have something else in common: US Attorney Ronald Machen. When the House voted a criminal contempt charge against Holder for refusing to comply with the subpoena, the charge got referred to Machen, who Holder initially claimed made an independent decision not to pursue the criminal complaint in federal court.
Actually, Deputy Attorney General James Cole (who authorized the seizure of AP’s phone records) told Machen not to proceed, but Machen later wrote Congress that he concurred with Cole’s order. While Holder signed the Rosen application, the task of fighting this battle in court fell to Machen, who conducted the judge-shopping and ensured that Holder got his warrant.
The effort to protect Eric Holder seems far out of alignment with his value to the administration at this point. Obama had a perfect opportunity to dump Holder at the time of the Fast and Furious contempt citation, and again at the second-term transition. Instead, Holder said he’d stick around for another year, which means he would only have a few months left at best.
While a confirmation hearing for a new AG in the middle of this scandal would be uncomfortable at best, it won’t get any easier – and that’s assuming that Rosen is the only journalist that the DOJ and Holder have accused in secret warrant applications of espionage, a dicey assumption at best now.
The easiest path for the White House would be for Obama to announce that Justice needs a clean start to rebuild confidence and that Holder will leave to allow for a new appointee to lead that effort. That, as noted earlier, is why presidents have cabinet officials in the first place – and the longer Obama clings to Holder, the more questions it raises about what the White House gains by his presence and fears in his departure.