Milbank: Recusal no excuse for undermining of Constitution

By Dana Milbank, Columbian Syndicated Columnist

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photoDana Milbank is a columnist for The Washington Post Writers Group. Email: danamilbank@washpost.com.

As the nation's top law enforcement official, Eric Holder is privy to all kinds of sensitive information. But he seems to be proud of how little he knows. Why didn't his Justice Department inform The Associated Press, as the law requires, before pawing through reporters' phone records? "I do not know," the attorney general told the House Judiciary Committee on Wednesday, "why that was or was not done. I simply don't have a factual basis to answer that question."

Why didn't the DOJ seek the AP's cooperation, as the law also requires, before issuing subpoenas? "I don't know what happened there," Holder replied. "I was recused from the case."

Why, asked the committee's chairman, Rep. Bob Goodlatte, R-Va., was the whole matter handled in a manner that appears "contrary to the law and standard procedure"? Holder: "I don't have a factual basis to answer the questions that you have asked, because I was recused."

Holder seemed to regard this ignorance as a shield protecting him and the Justice Department from all criticism of the Obama administration's assault on press freedoms. But his claim that his "recusal" from the case exempted him from all discussion of the matter didn't fly with Republicans or Democrats on the committee, who justifiably saw his recusal as more of an abdication.

"There doesn't seem to be any acceptance of responsibility in the Justice Department for things that have gone wrong," said Rep. James Sensenbrenner, R-Wis., after Holder placed the AP matter in the lap of his deputy. The best Holder could do was offer an "after-action analysis" of the matter and pledge the administration's renewed support for a media shield law (the same proposed law the Obama administration undermined three years ago). But that does nothing to reverse the damage the administration has already done with its wholesale snooping into reporters' phone records and its unprecedented number of leak prosecutions.

"I realize there are exceptions and that you have recused yourself, but it seems to me clear that the actions of the department have, in fact, impaired the First Amendment," Rep. Zoe Lofgren, D-Calif., told Holder. "Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence, because those confidential sources are now going to be chilled in their relationship with the press."

One and the same

In a sense, the two topics that dogged Holder most on Wednesday — the AP phone records and the IRS' targeting of conservative groups — were one and the same. In both cases, Americans are being punished and intimidated for exercising their right of free expression — by the taxing authorities, in the conservatives' case, and by federal prosecutors, in the reporters' case. But Holder cared so little about those two issues that he said not a peep about either the IRS or the AP in his opening statement. When he was questioned about the AP case, his first response was to suggest the criticism of him was political

Republicans on the House committee had voted previously to hold Holder in contempt of Congress, and Holder made clear the feeling was mutual; he informed Rep. Darrell Issa (R-Calif.) that his line of questioning was "too consistent with the way in which you conduct yourself as a member of Congress. It's unacceptable, and it's shameful." Some of the Republicans provided Holder justification for his disdain. But there would be more sympathy, and support, for Holder if he took seriously the lawmakers' legitimate questions about his department's abuse of power in the AP case.

Didn't the deputy attorney general who approved the subpoenas have the same potential conflict of interest that Holder claimed? "I don't know."

When did Holder recuse himself? "I'm not sure."

How much time was spent exploring alternatives to the subpoenas? "I don't know, because, as I said, I recused myself." But when the Justice Department undermines the Constitution, recusal is no excuse.