Get ready for more televised committee hearings. Rep. Bob Goodlatte, chair of the House Judiciary Committee, sent a list of pointed questions to Deputy Attorney General James Cole this morning as the committee starts to probe the seizure of phone records from the Associated Press in a leak investigation. The committee also wants to know how Cole got put in charge of the snooping in the first place:
Some of the questions focused on Attorney General Eric Holder’s decision to recuse himself from the investigation of the AP phone records, as well as whether Cole was the one to personally sign off on the subpoenas to the AP.
Justice seized the records as part of an investigation into national security leaks. Holder testified last week that he was questioned as part of the probe, which is why he recused himself. Cole has taken the DOJ lead on the case in Holder’s absence.
No one knew of the recusal until last week, when Eric Holder revealed it in House testimony. Holder managed to accomplish the recusal verbally despite regulations requiring written notice, and this is a key point. The kind of warrant executed on media records by Cole and the DoJ in this instance requires approval from the Attorney General alone by statute. Holder argued that his recusal made Cole an acting AG for the purposes of this investigation, but that change of authority should have been recorded and noted.
The same statute requires Justice to at least try to work with a media organization before seeking a narrowly-focused warrant. Goodlatte notes that Cole didn’t adhere to either condition:
Goodlatte pressed Cole on why Justice didn’t attempt to negotiate with the AP for access to the phone records after the news agency had agreed to hold off on publishing a story because of the government’s national security concerns.
“This indicates a willingness on the part of the AP to work with the Justice Department on issues affecting national security,” wrote Goodlatte. “Given this, why did the department not seek the AP’s assistance with its request or provide notice to the AP prior to issuing the subpoena?”
Remarkably, only the Republicans on Judiciary signed the letter. That’s all that is necessary to seek subpoenas if it comes down to that, but it’s an indication that Democrats might dig in to defend Holder and Cole even at the risk of attacking the Associated Press and the rest of the media by extension. At the very least, it makes it clear that Democrats don’t put a high priority on protecting a free press — or as the New York Times put it yesterday, demonstrate “insufficient concern about a free press.”
Also remarkably, the letter apparently makes no mention of the snooping on Fox News’ James Rosen, in which the DoJ bypassed the applicable statute by representing Rosen as a co-conspirator in espionage to a federal court. That will be even less defensible than what occurred with the AP, so perhaps Goodlatte sees some value in pursuing it as a separate case, or perhaps a similar letter will go out in the next few days addressed to Holder himself for answers. Goodlatte gave Cole a deadline of eight days to respond to this letter, and it will be interesting to read the response — or see if Goodlatte gets one at all.