Attorney General Eric Holder personally signed off on the warrant naming Fox News journalist James Rosen a "possible co-conspirator" in violation of the Espionage Act, Michael Isikoff reported yesterday. Which is sort of awkward, because Barack Obama also yesterday told the country (the whole country) that he didn't want to criminalize reporting, and that he was going to ask his Justice Department to make sure not to do that anymore.
Rosen wasn't charged. In truth, the government never really intended to charge him. They just needed a judge to agree that Rosen probably violated the Espionage Act so that they could get their warrant to read his emails, as part of their real investigation into his source, an intelligence analyst named Richard Kim. It worked. That's the scandal: that the government could charge a journalist with, effectively, spying, simply for reporting. Barack Obama yesterday announced that he did not want his Justice Department treating the act of reporting as criminal. He is going to convene a panel, and urge the passage of a shield law. The question is, what will he do about Holder?
Invoking the Espionage Act, as the administration has repeatedly done in its investigations into leaks to journalists, is shocking, considering the history of the act -- it was essentially designed as a law giving President Wilson carte blanche to lock up people opposed to the U.S. entering World War I. (As originally written it also gave the president censorship powers over the press.) There's no reason the law should still be on the books. There's less than no reason for the Justice Department to be trying people under it in 2013.
In the AP case, where the government used methods with less terrifying implications in order to obtain private and professional information from many, many more journalists, Holder recused himself. We now have evidence that he likely would've approved the subpoena even if he hadn't. It's nice that now the president wants (or says he wants) to "review" the Justice Department's actions in cases involving journalists. It's hard to believe the president when he says Attorney General Eric Holder "shares [his] concern" about press freedom and independence.
The left and the right now basically agree that Holder should go. The only reason I am not enthusiastically joining the chorus calling for Holder's job is that I'm 90 percent certain that whoever replaces Eric Holder will be worse, both because of President Obama's full support for Holder's Justice Department thus far and because of the confirmation process. Obama isn't going to nominate someone from the ACLU. Republicans (and hawkish Democrats) would block anyone who shows signs of being even slightly less awful on civil liberties.
Obama will still probably stand by his AG, who, let's remember, was already held in contempt by the Republican House in a previous bit of GOP overreach that left Holder "Zen-like" in his response to all criticism. The president has stood by Holder this long. We've seen how Barack Obama's Good Liberal respect for the sacred craft of journalism left him once he had to deal with journalists. The president seems to value loyalty and discipline (including the discipline not to leak shit to the press) more than journalism. I wouldn't mind being wrong, but Holder's job is probably safe, as long as he wants to keep it.