As predicted, Wednesday afternoon's testimony by Attorney General Eric Holder focused heavily on revelations that the Department of Justice subpoenaed phone records from the Associated Press following their publishing leaked information about a terror attack. The House Judiciary Committee had the wrong guy at the witness table, though, since Holder, who'd recused himself from the matter couldn't offer much new information. This left the committee members to fill the time by attacking their opponents, and allowed for a dispute that resulted in Holder calling a Congressmember's behavior "unacceptable and shameful."
At the start, it seemed as though the focus might not be the AP investigation. Rep. Bob Goodlatte, chairman of the committee, either didn't have time to update his talking points for the hearing or let his own priorities slip through. During his opening comments, Goodlatte raised the following issues as topics, in order: the Boston terror attacks, spending at the department, questionable farm loan payments (known popularly as "Pigford"), the problems at the IRS, and, finally, the department's seizure of phone records from the AP.
Or, perhaps, it was because the chairman knew what questions he was likely to get answers to. When Goodlatte kicked off the questioning, he and Holder had a brief back-and-forth on the FBI's use and sharing of information about the Tsarnaevs prior to the Boston attacks. Holder agreed with Goodlatte, for example, that the law regarding the immediacy of reading Miranda rights didn't reflect what he sees as current needs. When Goodlatte moved on to the AP, the responses were less forthcoming. "I don't know" why a subpoena was necessary, Holder insisted, "I was recused." When Goodlatte asked why if the AP was willing to work with the government to hold reports on the attack it couldn't be worked with to share phone records, Holder repeated a similar answer, although other answers could also have been provided.
Rep. Jim Sensenbrenner of Wisconsin had a little more luck. Stating that he wanted to "pin down" who authorized the subpoenas that yielded the AP records. Was it deputy attorney general James Cole, Sensenbrenner asked? After repeating that he couldn't be sure due to his recusal, Holder confirmed that it was — but only after receiving a note from his staff. (Multiple members subsequently suggested Cole should testify, though Holder noted that he probably couldn't respond.) Sensenbrenner continued: Why were you recused? "I was interviewed as one of the people who had access to the info," Holder replied — in other words, he was a potential suspect in the leak. Sensenbrenner, frustrated at not getting a response, suggested Holder go to the Truman Museum and "take a picture of the thing on his desk that said 'the buck stops here.'"
Contrary to expectations, the Democrats on the committee were willing to provide Holder with some cover. Rep. John Conyers of Michigan expressed his "delight" that his Republican colleagues were suddenly so concerned about media protection, arguing for a shield law that died in the Senate in 2009 but reintroduced by the White House today. (Asked later, Holder said that he supported that law during his confirmation and it "continues to be something that I think we should pass.") Rep. Jerry Nadler of New York didn't go the sarcastic route, instead criticizing the "hue and cry" raised by the same Republicans who, last year, "wanted reporters subpoenaed, put in front of grand juries" in an effort to curtail leaks to the media. The harshest Democratic member was Rep. Zoe Lofgren of California, who suggested that Justice's actions had impaired the First Amendment. Holder said that, once the investigations was resolved, "some sort of after-action analysis would be appropriate," and pledged that it would happen.
During his questioning, Nadler also asked Holder to provide a sort of job reference for Thomas Perez, the president's embattled pick for Secretary of Labor who currently leads the Civil Rights Division at Justice. Holder did so, and repeated his endorsement when prompted by other members. Goodlatte noted that Perez had been invited to testify before the committee, but had refused.
Rep. Darrell Issa of California, chair of the House Oversight Committee, pressed much harder on Perez. He led off by playing a voicemail left by the nominee for a third party, asking Holder to respond. The use of the audio clip prompted a harsh response from Rep. Jackson Lee, who questioned his ability to do so. But the angriest response to Issa's pressing questions came from Holder. As Holder answered one, the congressman interrupted his response. Holder said he was "not going to stop talking" despite the interruption, prompting Issa to ask that the committee chair explain to Holder the rules of the committee. Issa's behavior was "too consistent with the way you in which conduct yourself as a member of Congress," the attorney general told Issa. "It is unacceptable and it's shameful."
Other topics covered included the IRS investigation (announced yesterday, it is not yet complete, Rep. Scott noted), the FBI's role in Boston (no new developments), and Guantanamo (Holder is still working to figure out how to close it). A few interesting responses resulted on other topics: Rep. Watt of North Carolina asked about intellectual property law; Holder said that Justice was "now seeing terrorist groups getting into the theft of intellectual property." Conyers asked about the idea of banks "being too big to fail;" Holder replied, "There's no bank, there's no institution, there's no individual that cannot be brought for prosecution by the Department of Justice. … Let me be very, very clear: banks are not too big to jail." Of the Benghazi probe, Holder said: "Because I'm not able to talk about it now does not mean that definitive, concrete action has not been taken." That came minutes after the White House released 100 pages of Benghazi emails.
Holder's general ease was understandable. He largely got the questions he was expecting. And the questions on the hardest topic, he had an unassailable out: he wasn't allowed to answer.
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