By Christopher B. Daly
There are, of course, many ways to evaluate the performance of Eric Holder as the Attorney General of the United States. Since he announced his intention to retire, many voices have attempted to determine his legacy. I want to focus on his treatment of journalists, which may be the most hostile in the history of the country.
His most egregious and unconstitutional offense has been to investigate and prosecute journalists for doing their jobs — which, at its most vital, entails gathering and sharing information about the actions of our government. When that news-gathering has involved discovering information that the government prefers to keep secret, Holder has been ruthless — far more agressive, for example, than he was in prosecuting those lenders and speculators who crashed the U.S. economy in 2008.
It’s not just a campaign against “leakers” such as Chelsea Manning and Edward Snowden. What has really marked Holder’s approach is his determination to go after the journalists who get secrets from government sources. Among his biggest targets has been the New York Times (no accident, of course, because the Times is a leader in investigating government secrets). With considerable restraint, the Times made these observations today:
But Mr. Holder has continued Mr. Kennedy’s work in another way, one he is less likely to embrace but is no less part of his legacy. Like Mr. Kennedy, Mr. Holder has frustrated and confounded even his staunchest allies for his views on civil liberties.
Mr. Holder approved of the National Security Agency’s authority to sweep up millions of phone records of Americans accused of no crime. He subpoenaed journalists and led a crackdown on their sources. He defended the F.B.I.’s right to track people’s cars without warrants and the president’s right to kill an American who had joined Al Qaeda.
Mr. Holder’s Justice Department started more investigations than any of his predecessors into government officials who disclosed information to reporters. He subpoenaed journalists’ emails and phone records, and demanded their testimony. The New York Times reporter James Risen, who has refused to reveal his sources about information on Iran, remains under subpoena.
Mr. Holder acknowledged in the interview that those efforts went too far at times and pointed to new rules limiting investigations involving journalists. . .
To put all this in historical perspective, it might be worth noting that Holder is not the only attorney general in U.S. history
AG Charles Lee, 1795-1801
to have prosecuted journalists. One notable enemy of journalists was the third AG — the rarely remembered Charles Lee of Virginia, who served under Federalist president John Adams and enforced the blatantly unconstitutional provisions of the Sedition Act of 1798, which made it a crime to publish certain kinds of criticism of the government or its officials. (When the Jefferson administration came into power in March of 1801, Lee was promptly replaced by Levi Lincoln Sr. of Massachusetts, and the Sedition Act was mercifully allowed to expire.)
Then there was Alexander Mitchell Palmer, who occupied the office during the late years of the Wilson administration. He is most notorious for carrying out the “Palmer raids” on suspected radicals, but he
also prosecuted several high-profile cases under the Sedition Act of 1918 to attempt to silence critics of U.S. involvement in World War I.
Ultimately, I suppose, it is worth remembering that all attorneys general are nominated by the president, and they serve at his (or her) pleasure. So, attorneys general are only as good as the president allows — or requires — them to be.