Remember this moment at the Eric Holder hearing earlier this week? This came right before the Attorney General accused Darrell Issa of acting in a “shameful” manner as a Congressman, and in the middle of a blizzard of I-dunnos about what happens in Holder’s organization. But there is one thing Holder knew — no one told the man Holder himself appointed to decline to prosecute Issa’s contempt charge against him:
Rep. Darrell Issa (R-Calif.):“In the AP [Associated Press] case you have appointed Ronald Machen, and I’m sure he is a fine U.S. attorney, but can he be considered to be independent when in fact when this Congress held you in contempt he was the individual who refused, on your orders, to prosecute the case? If he will obey your orders in not living up to a contempt of Congress, can we believe that he is in fact independent?”
Attorney General Eric H. Holder Jr.:“I did not order Mr. Machen not to do anything with regard to — I won’t characterize it — the contempt finding from this Congress. He made the determination about what he was going to do on his own.”
Washington Post fact-checker Glenn Kessler says that Holder should have stuck with the I-dunno defense. In fact, Machen did not make that determination for himself, as Kessler documents:
The notice of the DOJ decision, however, came in a June 28, 2012, letter from Deputy Attorney General James M. Cole. “Consistent with the uniform position and practice, the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury,” Cole wrote.
Here’s the rub: The decision on whether to empanel a grand jury rested with Machen. But the letter from Cole came even before the House had transmitted the contempt resolution to Machen.
A June 29 letter (embedded below) sent by Sen. Charles E. Grassley (R-Iowa) makes clear how angry Republicans were that Machen appeared not to make his own determination. Grassley noted that under the statute, Machen’s “duty… shall be to bring the matter before a grand jury for its action.”
This language is quite clear and simple to comprehend. It is not optional. Moreover, the law clearly assigns that duty to you and to no one else. It could have assigned the duty to the Attorney General or to the Deputy Attorney General or some other official. But, it does not. As for the ultimate decision to proceed with a prosecution after you have exercised your duty to present the matter to a grand jury, that decision is for the citizens empaneled in the grand jury, not for you or for the Deputy Attorney General or for “the Department” generally to make.
And here’s another reason this matters. Machen will be investigating the seizure of AP’s phone records from three offices over a period of two months, in violation of practically every aspect of the Watergate-era statute governing the seizure of such records. Who approved that raid? Why, the very same James Cole, Deputy AG under Holder.
Don’t worry, though …. Cole told Senator Chuck Grassley that Machen concurred with Cole’s decision after the fact. Whew. I guess he really will be independent!
Kessler wraps up by noting that the Department of Justice later retracted Holder’s claim, thus earning a reduction to two Pinocchios:
If Holder had not been involved in the discussions on how to handle the contempt citation, he should have made that clear. One can understand his irritation at what he clearly regards as empty political theater, but he should have said that he had no idea how Machen made his decision because he, as the subject of the contempt vote, decided to remove himself from the process. Instead, he asserted something that was incorrect.
Ultimately, Machen wrote to Congress that he concurred in the decision, but we have no idea, at this point, whether he felt any pressure to conform to the department’s policy. Holder certainly should not have left the obviously incorrect impression that he knew otherwise. But, by admitting error, he just skates by with Two Pinocchios.
They’ve been doing a lot of “skating by” at Justice, right up to Holder’s I-dunno-fest this week. With Justice attacking the AP and who knows how many other news agencies, will they be able to keep that up? I dunno.