How Eric Holder holds on

He’s been strong on voting rights, Obama trusts him -- and the DOJ’s media probes reflect administration policy

Published May 27, 2013 5:30PM (EDT)

Attorney General Eric Holder                   (AP/J. Scott Applewhite)
Attorney General Eric Holder (AP/J. Scott Applewhite)

Part of me has been rooting for Attorney General Eric Holder to keep his job. It’s the part of me that wishes Democrats were tougher, that they didn’t reflexively try to reason and negotiate with crackpot Republicans, and then just fold when the GOP, predictably, won’t budge. Holder modeled backbone for spineless Democrats the day he told Rep. Darrell Issa, the dodgy car-alarm magnate turned “oversight” bully, that his behavior as House Oversight Committee chair has been “unacceptable, and…shameful.”

Unfortunately, that same day we got more details about the Justice Department’s broad, aggressive targeting of the Associated Press in a national security leak probe. Then came the news that the department had obtained the personal and professional email and phone records of Fox News’s James Rosen, under the dubious and shocking claim that he might be a criminal “co-conspirator” in the leak of national security secrets. While Holder says he didn’t know about the AP dragnet because he recused himself from the leak investigation, since he was among the administration officials interviewed for it, NBC News revealed late Thursday that he personally signed off on the unprecedented (as far as we know) warrant for Rosen’s records.

That’s got everyone from the Huffington Post to right-wing screamers insisting Holder has to go, and they’re probably right. But if he doesn’t go, here are a few reasons why.

First of all, the president clearly supports his attorney general personally and politically – and is himself the driving force behind the administration’s unprecedented crackdown on national security leaks. If you want to know how Obama feels about the AP and Rosen controversies, compare his reactions to the three different “scandals” the GOP has been working overtime to conflate, and somehow turn into an impeachable offense: Benghazi, the IRS mess, and the AP-Rosen probes.

On Benghazi, Obama has been uncharacteristically defiant from the beginning, attacking his GOP opponents for going after Susan Rice and Hillary Clinton, and denouncing the whole thing as a “sideshow.” By contrast, he quickly called the IRS targeting Tea Party groups for extra scrutiny “outrageous” and “unacceptable.” Treasury Secretary Jack Lew secured the resignation of acting IRS head Stephen Miller, while Holder’s Justice Department opened a criminal probe into the tax agency.

On the AP and Rosen controversies, the president has tried to have it both ways. In his important national security speech Thursday, he declared “journalists should not be at legal risk for doing their jobs,” while reaffirming his intent to continue to root out national security leaks. And he backed Holder emphatically, in words and deeds. “I have complete confidence in Eric Holder as Attorney General. He’s an outstanding Attorney General and does his job with integrity, and I expect he will continue to do so,” Obama said Thursday. He proved it by putting Holder in charge of reviewing the department’s investigation of journalists, which has prompted inescapable fox-henhouse comparisons.

But the news that Holder himself signed off on the warrant to obtain Rosen’s email and phone records, using the unique and troubling strategy of declaring the journalist a potential criminal “co-conspirator” to illegally leak national security secrets, has to change Obama’s approach.

The White House may think Holder can ride out the Rosen scandal, for two reasons: First, of all the alleged “scandals,” the one involving journalists bothers the public the least. So far, Republicans haven’t cared much either, although the targeting of Fox News may change that. Second, within the president’s liberal base, Holder is still hugely popular, while Fox News is decidedly not.

Holder deserves credit for beefing up civil rights enforcement, particularly the Justice Department’s voting rights section. He took a high profile fighting GOP-backed voter identification laws, memorably labeling Texas’s law “a poll tax.” A federal judge backed Holder and invalidated the law. Holder wanted the administration to toughen gun control enforcement and back a renewal of the assault weapons ban, but he was out-muscled by compromising chief of staff Rahm Emanuel.

Maybe most important to many factions within the Obama coalition, Holder has been the target of congressional Republicans from his earliest days in office, after he memorably and rightly called us “a nation of cowards” on racial issues. Equally correctly, and controversially on the right, his Justice Department declined to prosecute the ridiculous New Black Panther Party for voter intimidation in Philadelphia on Election Day 2008, because it couldn’t find voters who were intimidated by the three cartoonish thugs. Right-wingers still list that among Holder's sins.

Then came the bogus (so far as it ensnared Holder) “Fast and Furious” scandal, which metastasized into a witch-hunt by Issa once the GOP took over the House. Holder became the first attorney general in history held in contempt by the House of Representatives. If anything, that strengthened Holder’s standing with liberals, and made any GOP complaints about Holder forever suspect. ”There’s nothing left they have to throw at him. What are they going to do: hold him in contempt?” former Holder spokesman Matt Miller told Politico. “It ought to be a lesson to people who work on the Hill that when you’re pushing things too far you give up the only power you really have. He has no reason to be cooperative with these people when 130 of them have called on him to resign and they all voted to hold him in contempt.”

It’s also hard not to notice that so many of the right’s scapegoats since we elected our first black president have been African Americans. Until the IRS scandal required some heads to roll (well, “roll” is a little strong: so far, there have been two early retirements and an administrative leave), all the high profile administration figures hounded by the right have been black, from Van Jones to Shirley Sherrod to Susan Rice and, repeatedly, Holder.

But the attorney general’s role in obtaining Rosen’s personal and professional email and phone records makes him a legitimate target of criticism, not a scapegoat. This isn’t about James Rosen, or Eric Holder, or Fox News, or Darrell Issa.  The possibility that the attorney general participated in labeling a journalist a potential criminal co-conspirator in order to get around judicial restrictions on secretly obtaining reporters’ work records is troubling – or should be, to anyone who calls him or herself a liberal. So should the lengths the department went to keep the probe secret from Rosen, despite the confusing reports of News Corp bumbling an early notice about the subpoena of Rosen's work records (which allegedly never made its way to Fox News).

The warrant to obtain Rosen’s records cites ludicrous evidence of his potential “criminal” role. “What I am interested in, as you might expect, is breaking news ahead of my competitors,” Rosen allegedly wrote in one email cited as a reason to subpoena all of Rosen's emails. Because Rosen coached leak suspect Stephen Kim in ways to use email to hide their communications, the Justice Department tried to depict him as the mastermind of their collaboration. (A collaboration that was admittedly sometimes kind of ridiculous, and easily detected -- but "poor tradecraft" isn't what got Rosen in trouble.)

The news that Holder signed off on the warrant is damaging. The right’s new claim is that Holder lied to Congress last week when he denied that the Justice Department had contemplated prosecuting journalists for their role in disclosing classified information. “In regard to potential prosecution of the press for the disclosure of material, this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” he told the House Judiciary Committee. Holder might be able to argue that Rosen wasn't being investigated -- and potentially prosecuted -- for disclosing classified material, but for being a co-conspirator with Kim in the leak, but those are the kind of contortions that are eventually going to tie the Obama administration in knots if it doesn't come clean on when, why and how it is targeting journalists.

The president was at minimum politically tone deaf when he put Holder in charge of reviewing the department’s targeting of journalists last Thursday. With Friday's news that Holder signed off on the Rosen warrant, the attorney general should be a target of the review, not the guy in charge of it.

I don’t know how Holder survives this one. Still, any liberal calling for his head has to acknowledge the political reality: a more progressive choice is unlikely to get through the Senate confirmation process. In fact, at this point it's hard to imagine any Obama choice easily getting through that process, since the Senate GOP has grabbed unprecedented rights to veto the president's cabinet choices. That may be the ultimate reason Holder holds on.

By Joan Walsh