Despite strong opposition from conservatives, Eric Holder has never faced any real threat to his position. That's largely because the threats have never been substantive; the most serious, Fast and Furious, landed some distance from his desk, and the media didn't bite at right-wing efforts to make it a big deal. But the Department of Justice's heavy-handed media subpoenas and search warrants have shifted that perspective, aligning the media for the first time with the interests of a Republican Congress antsy to see Holder go. Calls for Holder's resignation aren't common in the mainstream media, but they're happening — even at the administration-friendly Huffington Post.
Forcing Holder out, however unlikely, would be a significant blow to the administration. So the attorney general (and, presumably, his boss) have launched an effort to rebuild his reputation, operating under the assumption that, with the media anyway, it's still salvageable.
The campaign has two components. Step one: Meet with the press and discuss the existing rules about how the government can collect information in leak investigations. Step two: Advocate for a new media shield law. The media would be wise to be skeptical of the overtures.
Politico's Mike Allen first reported on the meetings earlier today. The Department of Justice is "contacting D.C. bureau chiefs of major print and broadcast news organizations" for a meeting with Holder.
"The A.G. realizes that things might have gotten a little out of balance, and he wants to make changes to be sure the rules fully account for the balance between the First Amendment and law enforcement," the source said. The first media meeting will be held at main Justice, likely later this week. A later meeting will include First Amendment advocates.
This appears to be a follow-up to Obama's calls last week for a review of the rules around issuance of subpoenas to media organizations. The rules, articulated here, offer only guidance, not mandated regulations. But they are "intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function" — the heart of the concern in the aftermath of the Associated Press and Fox News information-gathering. Under the policy, media organizations must be informed about record collection, which should only occur as a last resort and with the authorization of the Attorney General. In both the AP and Fox cases, the Justice Department has offered lengthy explanations for how it followed those rules as best it could.
Which is where the second effort comes in. Earlier this month, the president began making quiet calls to reintroduce a media shield law. The policy would establish federal protection for media sources — protection that exists in 49 states but not at the highest level of government. The problem, as we noted at the time, is that previous versions of the bill, like that introduced by Senator Chuck Schumer of New York, wouldn't have done much to protect the reporters in either of the recent high-profile cases.
Peter Sterne at the New York Observer explains why:
The proposed federal shield law before the Senate is even weaker than Colorado’s. It simply allows journalists to petition a judge, who weighs the story’s public interest value and decides whether the journalist should be forced to reveal his or her sources.
Matthew Cooper was investigated by the Bush White House in 2003 after writing a story for Time based on a CIA source. At our sister publication National Journal, Cooper explains that press protections are largely contingent on good will. "Prosecutors are often aspiring politicians," he notes, suggesting that fear of angering the press often served as a disincentive in the 1970s to subpoena those who "buy ink by the barrel." That generally hasn't changed much.
Prosecutors and others are always going to have the opportunity to persuade a court that national security overrides First Amendment issues. The best we can count on is that prosecutors will use their powers with discretion, especially since in most national security cases they wind up not prosecuting for any leak itself but for false statements to the FBI.
From Holder's perspective — and the president's — there isn't a lot of value in instantiating strong media protections, beyond the value of the positive media that might result. The Department of Justice isn't investigating security leaks in an effort to ingratiate itself with The New York Times; it's doing it to try and crack down on what it sees as dangerous law-breaking. The needs of the Times and The Washington Post are and will always be secondary to that.
But for now, they need to keep the ink-barrel-buyers happy, if only to keep the barbarians on Capitol Hill at bay. How far the media will be able to push the administration on new, tighter regulations remains to be seen. If Holder isn't successful in finding middle ground, the desire for a strong shield law might do exactly what the administration wants least: Create common ground between the media and a Republican Congress. If the White House can't deliver on a law that the media likes, John Boehner and Darrell Issa would certainly be happy to call attention to any apparent antipathy by the administration to protecting the First Amendment.