The House Committee on the Judiciary is said to be targeting US Attorney General Eric Holder over fears he may have lied to Congress during a May hearing regarding private phone records of AP staff, according to a source close to the congressional probe.
The Daily Mail, which is attributing the new information to a Republican aide familiar with the ongoing investigation, alleges that “perjury is on the table” regarding the probe, which hinges on whether Holder was intentionally misleading in claims on the stand that he had no involvement in the Department of Justice’s spying on some 20 journalists with the Associated Press.
“With regard to the potential prosecution of the press for the disclosure of material," Holder testified on May 16, “that is not something that I've ever been involved in, heard of, or would think would be a wise policy. In fact, my view is quite the opposite.”
Though the scandal stemming from the Department of Justice’s alleged surveillance is still developing, early calls for Holder’s resignation were be skirted by the Attorney General through his denial of direct involvement with the subpoenas used in against the AP.
However, only days later an NBC News report confirmed that another target of a DOJ subpoena for phone records targeting Fox News Channel’s James Rosen and Holder’s personal signature on that order undermined Holder’s testimony.
In both cases, neither Fox News nor the Associated Press were notified by the DOJ that phone records were being examined by using a legal loophole under the Espionage Act, which waives that requirement in the interest of US national security.
And in both cases, the DOJ, and by extension the Obama administration, appears to have been zealously pursuing the source of leaks, fanning the flames in what critics call a relentless persecution of whistleblowers that has had a “chilling effect" on American freedom of the press.
In their application for secret monitoring of the Associated Press the Obama administration, in conjunction with the DOJ, aimed to determine the source of a leak about a CIA operation in Yemen reported by the news agency in 2012.
Responding to NBC’s investigation on the Rosen case, a statement provided by the DOJ acknowledged that the search warrant application was approved “at the highest levels” of the agency, including “discussions” with Holder himself. Even more noteworthy, that affidavit also labeled Rosen as a “possible co-conspirator” in a crime.
Holder’s office would not comment to the Daily Mail regarding any ongoing probe, though the Attorney General could in theory argue that his May 15 testimony is not in conflict with the agency’s access to Rosen’s phone records as the DOJ did not intend to prosecute him, though that, in turn, would undermine the loophole used under the Espionage Act.
According to an investigation by The New Yorker, the DOJ approached three different judges in its bid to gain secret access to Rosen’s communications. Ultimately, the chief judge in the Federal District Court for the District of Columbia, Royce C. Lamberth, agreed to overturn the opinions of the two other judges, signing off on the DOJ’s request.
In 2009, an article written by Rosen on North Korea sparked an internal investigation on Stephen Jin-Woo Kim, a former US State Department employee and the alleged source of leaked classified information.
According to documents examined by The New Yorker, two judges separately declared that the Justice Department was required to notify Rosen of the search warrant over his communications.
“The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama administration’s argument.
Ultimately, the DOJ asked the court to order Google not to notify Rosen that the company had handed over his e-mails to the US government.
According to Rosen, he only learned that his communications had been seized once it was reported by the Washington Post earlier in May.
The DOJ seems to have taken a sizable gamble in exercising the Espionage Act to keep its surveillance of members of the press a secret, and the Daily Mail’s source into an ongoing Congressional probe indicates that the Attorney General may still bear the brunt of the blame.