It’s bad enough that the Obama administration committed a wholesale violation of the First Amendment by prying into the records of phones used by almost 100 people at The Associated Press. But then Attorney General Eric Holder made matters worse by trying to justify this egregious intrusion into the rights of working reporters by saying the Justice Department was just trying to plug a leak.
The scandal over the phone records, along with the controversy over IRS harassment of conservative political groups and the Benghazi attacks, paint a picture of an administration in disarray, and a president out of touch. The best defense that Press Secretary Jay Carney can muster in the phone records controversy is that the White House was out of the loop, as if that relieves President Barack Obama and the officials around him of all responsibility for this misbegotten effort to spy on the press.
The usual routine when reporters’ phone records are sought is to notify the news organization ahead of time so they can have a fair chance to argue against disclosure. Holder and other Justice Department officials are well versed in this process, given that the Obama administration has aggressively pursued leaks of information and even indicted six current and former officials of violating the Espionage Act in their zeal to deter whistle-blowers.
But in this instance, they decided to go directly to the phone companies with a subpoena and notify The AP later — much later. At this writing, it remains unclear whether the phone companies challenged the subpoenas on behalf of the press, but in any case, neither the reporters and editors who use the work, home and cellphone numbers whose records were seized, nor The AP’s executives, were notified in advance.
Holder says he recused himself from the action because he was interviewed by FBI agents as part of the leak investigation, but he attempted to justify the decision by saying the leaked information amounted to a grave violation of national security, involving a terrorist case in Yemen. But The AP says it held the story for several days until the organization was assured by the government that the security concerns had passed.
Moreover, Holder’s assertion about the importance of the leak investigation — one of the most serious he had ever encountered, he said — doesn’t square with White House claims that it had no idea what was going on.
Unfortunately, congressional reaction to the scandals seems heavy on posturing and politics, with little concern for policy and corrective legislation. It seems particularly odd that the same lawmakers who were complaining last year that the administration wasn’t serious about chasing leaks are now presenting themselves as First Amendment champions.
If they’re serious, they can support a revived effort to enact a federal shield law to help working members of the press win greater protections from penalties for refusing to identify confidential sources. The proposal, first espoused by Sen. Charles Schumer, D-N.Y., would also enable journalists to ask a federal judge to quash subpoenas for their phone records.
In the IRS investigation, lawmakers would make a valuable legislative contribution by clarifying who qualifies for tax-exempt status as a 501(c)(40) or 501(c)(3) organization. As matters stand, the law is vague and murky, putting too much discretion into the hands of IRS functionaries.
Late in the day, Obama announced the administration had obtained the resignation of the acting IRS commissioner. That’s a start. To avoid becoming a lame duck so early in his second term, the president needs to show this level of leadership and decisiveness in all of the ongoing scandals.