Holder, the AP, and CIA: Subpoena Subterfuge?
At first blush the administration has already suffered -- and stands to incur -- even more embarrassment as a result of DOJ's unconstitutional (if you're a constitutionalist, anyway) encroachment on free press territory. And yet...what if Holder's hand was forced -- forced by the reality of its defensive position?
What if the Administration deemed the AP move a necessary attempt to thwart tremendous -- perhaps even fatal -- embarrassment?
Gary B. Pruitt's May 13 letter of protest to Mr. Eric Himpton Holder Jr. indicates that in the late afternoon on Friday, May 10 AP General Counsel Laura Malone received a letter from the Department of Justice.
Pruitt states that the DOJ letter was from United States Attorney Ronald C. Machen Jr. and contained language "advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists" (emphasis added).
The Pruitt response goes on to state:
The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen's letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.
Mr. Holder has since claimed that the subpoena was issued in support of an investigation into a national security leak that, according to him, was "very very serious" (the link shows that Holder even goes so far as to claim that the leak was among the top two or three most serious in the past few decades).
The purported leak relates to information revealed in a May 7 AP article.
That article discloses that CIA successfully prevented a Bin-Laden death anniversary, AQ bomb plot in Yemen.
It is most interesting to observe that the AP says of itself that:
The AP delayed reporting the story at the request of government officials who said it would jeopardize national security. Once officials said those concerns were allayed, the AP disclosed the plot, though the Obama administration continued to request that the story be held until the administration could make an official announcement.
The preceding AP quote was published on May 13.
It now appears though AP was kind enough not to specify that the "officials" who had their concerns "allayed" seem to have represented none other than...CIA!
In a May 15 Washington Post piece, we learn that CIA cleared, from a security vantage point, the May 7 piece after AP had shelved it for five days at the request of CIA.
The claim is now on the table (click the last link) that this wasn't good enough for the administration, and that the administration wanted an additional delay so as to claim the spotlight for itself by discussing the foiled plot on May 8 at a press conference.
In view of the foregoing, Twitchy, and others, have speculated that the Administration's subpoena was the product of retaliation for AP's having stolen the limelight.
I do not believe matters are this simple, but to see why, we have to reflect on what the most logical way to interrelate a few key facts is.
Consider first that while Holder says he recused himself from the leak probe, he can't remember when he did it, and he never put it in writing.
Next, the subpoena was substantially overbroad, even blunderbuss.
Third, the subpoena was substantially overbroad even though it was issued, at the earliest, according to the Machen Jr. letter (as indicated by Pruitt's letter) in January, 2013.
Fourth, prosecutors don't inform the people that they're spying on that they're being spied on until the prosecutor is ready to take the next step -- unless, of course, something forces their hand.
Particularly in view of what CIA has said, do you think any indictments, at least any legitimate ones, are forthcoming with respect to this "very, very, serious" non-national security leak?
Neither do I.
So how do these facts best fit together?
The retaliation explanation does not really account for the timing of the release; why was the letter sent to AP on the same day the IRS pre-planned the revelation that the Tea Party and other were targeted?
The retaliation explanation is consistent with Holder's recusal, but does it explain why he failed to put the recusal in writing?
Also, the Post article suggests that the Administration knew that CIA had consulted on clearance issues with the authors of the May 7 article. Would retaliation really have been a powerful enough motive for the subpoena given that the Administration must have known that the Post, and CIA, could very easily undercut any ostensible national security justification?
Overall, here is what I think happened.
The Administration knew that, after AP had already delayed the story for several days and obtained CIA clearance on it to boot, it would refuse the seemingly grandiose Administrative request to delay publication even further.
But it also theorized that even if certain elements in CIA supplied clearance to AP, it was still a leak case from a formal point of view.
Therefore, DOJ would have the pretext to seize whatever records it wanted whenever it wanted, and it could always claim publically, if it had to, that the records seized were only those in reference to the "leak" investigation.
Others, of course, would know better, but DOJ's (and probably Holder's) view on that would have been "who cares, as long as the job gets done?"
(While it is not essential to the analysis that follows, I think it quite possible that the Administration itself was the source of the leak; after all, they stood to benefit the most from it in terms of foreign policy credibility.)
So, the Administration tucked away the subpoena card because it perceived that it might come in handy as a means of intimidating potential scandal talkers, not leakers.
The "leak" issue is a sham issue from a national security point of view; the Post article shows that CIA has already thoroughly embarrassed Obama and Holder in that regard.
The reason Holder allegedly recused himself, but never put it in writing, is because of the flexibility it afforded him.
I think the Administration hoped it would never have to publically play the subpoena card, and that it did is a sign of the kind of desperation frequently associated with brutish intimidation.
But it knew it might have to, so it swept up abundant information.
It wouldn't surprise me at all if it gathered much more than it shared with Pruitt.
The plan was to keep running the program and keep it dark, which is why Holder never signed a recusal; that way he could continue to manage things.
And, if it ever came time to deploy the weapon, Holder would still be in a position to say he had recused himself and therefore had nothing to do with it.
Maybe the FBI really did interview Holder in June 2012 about the leak (which Holder says led to his recusal on conflict-of-interest grounds); maybe it didn't.
If it did, I suspect it was perfunctory.
Who, exactly, does Holder say interviewed him? Someone should ask; but I'm sure he "can't remember", and why would something like that be recorded on a schedule, right?
No matter what, the leak investigation is going nowhere in court in any legitimate sense, and everyone with an IQ above room temperature in Washington knows it.
It was never supposed to. Holder's DOJ deployed the crass subpoena weapon as a way to intimidate, under color of law, scandal talkers, not leakers.
Holder's DOJ did this even at the cost of disillusioning the AP, because it (Holder's DOJ) reasoned that it had more to lose by not doing so.
Talkers in regard to Benghazi, talkers in regard to the IRS scandal, and talkers in regard to who knows what else--that's who Holder's DOJ is trying to shut up. It's why, in spite having been utilized several months ago, the subpoena was disclosed the same day as the pre-planned IRS "targeting" confession.
What's the next step after an overreaching subpoena the genuine purpose of which had nothing to do with American interests, and everything to do with Obama's interests?
"Accidents" connected to information even more scandalous than that which we have seen so far.
Dr. Jason Kissner is associate professor of criminology at California State University, Fresno. You can reach him at firstname.lastname@example.org.