I remember hearing plenty of conservatives taking to the airwaves to accuse The New York Times of nothing less than “treason” for publishing materials provided by WikiLeaks. I thought the Times publication was squarely within the bounds of First Amendment law, just as I think James Rosen was acting within the bounds of the First Amendment in the reporting that led to the government’s securing a search warrant targeting him in 2010.
The balance between the First Amendment and national security is delicate and difficult, to say the least, and the actions taken against Rosen properly demand a thorough review of Justice Department policy.
But the person leading that review should not be the same man who approved the Rosen warrant.
Eric Holder cannot investigate himself.
Any investigation or review led by him will not be taken seriously or accepted as legitimate. Off-the-record meetings with him will not restore confidence in his Justice Department.
I don’t know Holder personally, but many people I know do. They say he is smart and thoughtful and decent, an honorable man in an unbelievably difficult job in a bitter and partisan town.
I expect that when he approved the warrant for Rosen’s records, a warrant that named Rosen as a potential member of a conspiracy to commit espionage, Holder did so not because he doesn’t like Rosen or Fox News, but because he was very concerned about a dangerous leak of sensitive information.
I expect that when he tells Congress he is troubled by warrants aimed at journalists, he really is. I expect that he is determined to lead a fair and thorough review of Justice Department policies, as the president has directed.
But none of that matters. No one can credibly investigate themselves.
An investigation led by the very man whose actions triggered the need for an investigation will be viewed as a whitewash regardless of its conclusion. His efforts to reach out to journalists in an off-the-record meeting were bound to lead, as they did, to rejections from major news organizations (including The New York Times, Fox News and others).
What is startling to me, frankly, is that neither the White House nor Holder seems to “get” this. Have they blinded themselves to so basic a principle as the one that says you can’t investigate yourself?
Is Washington so overheated that no one can see that everything has to be on the record if you are to restore trust?
Yes, Holder has been the target of partisan attack for much of the past four years. Yes, some of the criticism now is being brought by those who are only too happy to pile on another “Obama scandal.”
But the answers offered by the administration and the Justice Department — a Holder-led investigation, an off-the-record meeting — are stoking the flames.
To date, Democrats mostly have been biting their tongues. But that won’t last.
James Comey, President Obama’s choice to head the FBI, made his name as acting attorney general during the famous “hospital room standoff” in which Comey stood up to the Bush White House’s effort to try to convince the hospitalized attorney general to reapprove a wiretapping program that raised serious constitutional problems. Comey put law above politics, which is where it belongs.
Prominent Democrats, sooner or later, will have to do the same. They can only get away with being “deeply troubled” for so long. The White House is not only giving ammunition to its opponents, but it’s also putting its friends in an impossible position.
Find a prominent Republican who values both the First Amendment and national security.
Ask that person to put together an independent task force to review Justice Department policy.
This is not that hard. What is hard to understand is why the White House hasn’t done it already.
Susan Estrich is a law professor in Southern California.