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| Cartoon by Chip Bok, via Towhall |
DOJ officials, realizing the issue could turn into a press feeding frenzy, went into damage-control mode. Over the weekend they scrambled to prepare their response, including readying a press statement assuring that Justice had no plans to indict Rosen.
But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post’s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as “at the very least ... an aider, abettor and/or co-conspirator” in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.
The sweeping seizure of the AP phone records had thrown Justice on the defensive. But at least in that case Holder had some personal insulation; having been interviewed by the FBI, he’d recused himself from the investigation and, thus, had not personally signed off on the subpoenas. In the Fox case, however, Holder knew he bore a direct measure of responsibility. He had approved a search-warrant application that equated a reporter’s newsgathering activities with criminal conduct. That put Holder at the center of the brewing controversy, all while the Obama administration was being buffeted over allegations that the IRS had targeted conservative groups and by the continuing Benghazi tempest.
That is when Holder and even Barack Obama started pushing the red herring of the "Shield Law."
By week’s end, Holder knew he had to be proactive in stemming the criticism and restoring the department’s credibility with the press. He and his advisers began exploring ways to reform the Justice Department’s internal guidelines for investigating leaks to safeguard the media against overly intrusive tactics. (Obama announced a review of the guidelines during a major speech on counterterrorism last Thursday.) Meanwhile, on Friday, Holder made a round of calls to Capitol Hill in an attempt to mollify concerned lawmakers. In calls to Sens. Charles Schumer (D-NY), Dick Durbin (D-Ill.), and Lindsey Graham (R-SC), Holder said he understood why there had been such an outcry over his department’s actions. As one of Holder’s advisers put it, the message was: “Look we get it. We understand why this is so controversial, and we’re ready to make changes to find the right balance.” At the same time, Holder enlisted their help to get a media-shield law passed in Congress. (On Sunday, Schumer announced the formation of a bipartisan “gang of eight” to press for the legislation.)
Yes, about that Shield Law......
Perhaps the most significant structural flaw in the current system, however, is that the fox is guarding the henhouse. Prosecutors whose main interest is catching and convicting leakers call the shots on how aggressively to pursue reporters as part of their investigations. That is why, Holder believes, there is ultimately no better solution than passing a media-shield law that would place those decisions in the hands of an independent federal judge......
Would a Shield Law have prevented the Obama Department of Justice from zealously attacking the Associated Press by seizing their phone records without notification? Or protected James Rosen at Fox News from the being monitored and having his phone records and email account secretly monitored?
Washington Post reports the answer... no.
Under the shield legislation, the DOJ could still delay notification of a covered journalist of a subpoena — but only if a judge, not the administration, decided that disclosure would pose a substantial threat.
“The difference is that instead of DOJ unilaterally making that determination,” the department would “have to convince a judge that this was the case,” said University of Minnesota Law Professor Jane Kirtley.
The reason the "Shield Law" is a red herring, specifically being used right now as a way mitigate the damage, look no further than some of the original reporting by The New Yorker's Ryan Lizza, who clearly outlines how Obama's DOJ shopped around for a judge that would give them what they wanted after two judges had already denied them.
The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay. Otherwise: “The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama Administration’s argument.
Machen appealed that decision, and in September, 2010, Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, granted Machen’s request to overturn the order of the two judges.
All the Shield Law would have done is give the Obama administration and Eric Holder someone else to throw under the bus when their antics became public.
Then we have the matter of the "exception" in the Shield Law, which Obama himself pushed for in 2009, again it would have prevented the law from protecting the media:
The bill contains a large exception for national security, a compromise Obama pushed for back in 2009. In classified leak cases, a subpoena could not be quashed if the information would help prevent or mitigate an act of terrorism or other harm to national security. In a non-classified case, the reporter is not protected in those cases and if the information could help identify the perpetrator of an act of terrorism.
No doubt a federal media Shield Law would be a good thing, but it would not have prevented the abuses perpetrated against the media, by the Obama administration, in these two cases. It is more of a "look something shiny over that way," red herring, to distract from the very nature of those abuses.