The Law Eric Holder Ignored

Original Article

The Justice Dept. rules for press subpoenas ….

Attorney-General Eric Holder talks about adopting new rules for how the feds subpoena reporter records.  This is a typical Beltway ploy, one that “fixes” violations of old rules on the books by passing new ones.  Doing so implies that there is a loophole in existing law that needs closing.

But, inconveniently for Holder, there has been since 1980 a DOJ press subpoena regulation (28 C.F.R. sec. 50.10) on the books.  And Eric Holder clearly violated it.  Rules in the Code of Federal Regulations carry the force of law, and thus bind those subject to them.

The full set of rules merits a read, but here is the money part:

  1. In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.
  2. All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
  3. Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.
  4. Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.
  5. No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General….

In cases of exigent national security, the A-G, or a senior national security official, can contact the press & request that the story be held.  When six American diplomats were sheltered in Tehran by Canadian diplomats, reporters sat on the story for some three months, until the Americans were safely exfiltrated back to the States.

Holder’s signature of approval is thus not merely a perfunctory enactment of a ceremonial ritual, as are many such requirements.  The rules require a careful review of every situation, on a case by case basis.  Only after satisfying himself that procedures were properly followed, can Holder lawfully sign off on a press subpoena.

Eric Holder’s May 15 House testimony (3:16) denied involvement in issuing subpoenas as to even the “possible prosecution” of a member of the press.  At CBlog, Jonathan Tobin parses Holder’s testimonial utterance in detail, with alternate theories.  Here are Holder’s exact May 15 words:

With regard to the potential prosecution of the press for the disclosure of material, 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.

A look at Eric Holder’s career highlights reveals how unlikely it is that Holder was unaware of DOJ rules governing this highly sensitive area.  After graduating Columbia Law School, Holder served 12 years in the Justice Dept.’s Public Integrity section, then did 5 years as a D.C. superior court judge (a local, not federal position) appointed by Pres. Reagan, then as a U.S. Attorney under Pres. Clinton during Bubba’s first term, then elevated to Deputy Attorney-General in his second term, and then on to prestigious white-shoe law firm Covington & Burling.

Given the notoriety of press freedom cases, it is simply inconceivable that Holder was unaware that there are strict rules governing Justice Dept. subpoenas directed at members of the press.  If he did not specifically know them, he surely knew of his obligation to apprise himself of their substance and applicable procedure.

Here is a Holder lowlight from the end of the Clinton administration: engineering the infamous pardon of tax evading billionaire Marc Rich, by bypassing the normal pardon review process as the clock wound down on Bubba’s last term.

Bottom Line.  By any reasonable assessment, Holder lied.

John Wohlstetter

Senior Fellow, Discovery Institute
John C. Wohlstetter is a senior fellow at the Discovery Institute (beg. 2001) and the Gold Institute for International Strategy (beg. 2021). His primary areas of expertise are national security and foreign policy, and the 25th Amendment to the U.S. Constitution. He is author of Sleepwalking With The Bomb (2nd ed. 2014), and The Long War Ahead and The Short War Upon Us (2008). He was founder and editor of the issues blog Letter From The Capitol (2005-2015). His articles have been published by The American Spectator, National Review Online, Wall Street Journal, Human Events, Daily Caller, PJ Media, Washington Times and others. He is an amateur concert pianist, residing in Charleston, South Carolina.