From the Winter 2009 issue of The News Media & The Law, page 9.
Testimony from new Attorney General Eric Holder’s Senate confirmation hearing suggests to some observers that there is a renewed sensitivity to the importance of an independent press at the Justice Department.
“Holder seems to be generally supportive of the First Amendment and openness in government,” said Paul J. Boyle, Senior Vice President of the Newspaper Association of America.
President Obama appointed the 58-year-old Holder, who would become the first African American head of the DOJ. Holder was most recently a partner at the law firm of Covington & Burling; he has served as a D.C. Superior Court judge and as deputy attorney general under President Clinton. Despite initial Republican opposition to the nomination, notably because of his acquiescence to Clinton’s controversial end-of-term pardoning of Marc Rich, a fugitive financier who owed nearly $50 million in taxes, the Senate confirmed Holder to the position on Feb. 2.
Anticipating a shield law
A few clues emerged during his Senate confirmation hearings that indicate that his attitude toward the media is indeed friendlier than that of other recent attorneys general, particularly during the Bush administration. For instance, the Senate Judiciary Committee questioned Holder about his thoughts on a reporter’s privilege bill. That legislation, known as the Free Flow of Information Act — supported by a large media coalition and a bipartisan group of members of Congress — passed in the House in 2007, but stalled in the Senate last summer when Republicans blocked its debate. The shield law was re-introduced in the House on Feb. 11 and in the Senate two days later. At Holder’s Jan. 15 hearing, Chairman Sen. Patrick Leahy (D-Vt.) asked the then-nominee if he would work with both Republicans and Democrats on a federal media shield law; Holder responded, “Yes, I will, Mr. Chairman.”
Former Bush-appointed Attorney General Michael Mukasey publicly decried drafts of the federal media shield law for what he claimed could be their negative effect on the government’s “ability to protect the national security and investigate and prosecute the perpetrators of serious crimes,” and “undermining the investigation and deterrence of unauthorized leaks of national security information to the media.”
In his testimony, Holder reiterated that although concerns still exist within the Department of Justice about exceptions for national security, he remained in favor of the shield law and was confident the law could be crafted in a way that would allay those concerns. Holder also responded to questions from Sen. Jon Kyl (R-Ariz.) about the importance of preserving national security within a federal shield law by saying, “The concerns you raised are legitimate ones. On the other side, the notion of having a free press and protecting reporters and their sources, I think, is something that also has to be put in the mix. . . . And I think there is a way which we could find ourselves . . . a good bill.”
Holder then declined to outline his specific preferences regarding a reporter’s privilege, saying that he would need a chance to “become more familiar with the law.”
Given all that, the NAA’s Boyle said there is reason for optimism that a federal shield law will pass.
“The prospects look very good, but the 60-plus media member coalition needs to aggressively educate members of Congress that the [existing] legislation in the House and Senate is well-balanced, reasonable, and appropriate and provides a reasonable qualified privilege with exceptions for national security,” Boyle said. The shield law is especially crucial, advocates say, because the DOJ guidelines that currently govern the subpoenaing of journalists do not apply to special prosecutors, the government, or plaintiffs in civil lawsuits — areas where subpoenas have been rampant as of late.
Elsewhere at Justice
Holder also supports Obama’s directive rescinding former Attorney General John Ashcroft’s FOIA memorandum that discouraged federal agencies from making discretionary releases of information, and will develop new FOIA guidelines to issue to the heads of executive departments and agencies. Those guidelines, which must be issued by May 2009, follow Obama’s Jan. 21, 2009 executive order stating that “the Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails” — the opposite approach from the one taken by Bush’s Justice Department.
Holder’s incoming team at the Department of Justice includes nominees who will be knowledgeable about pressing issues relating to the media. Associate Attorney General Nominee Thomas Perrelli and Deputy Attorney General Nominee David Ogden both listed media law among their main practice areas as private attorneys.
If confirmed, Assistant Attorney General Nominee Dawn Johnsen would head the Office of Legal Counsel — most notorious in recent years for issuing legal memoranda purporting to outline executive authority for a variety of controversial practices such as “enhanced interrogation techniques,” like water boarding, and warrantless domestic wiretapping. Johnsen specializes in Constitutional Law and First Amendment law and was formerly an attorney at the American Civil Liberties Union.
Assistant Attorney General Nominee David Kris, meanwhile, a former Justice Department official under Bush, personally published a legal memorandum disputing the Bush administration’s claim of authority on warrantless wiretapping.
Holder seems to find the wiretapping issue problematic as well.
“We always have to be mindful of the fact that there is a civil liberties component to this,” Holder said at his confirmation hearing, “and we have to make sure that we understand, as I’ve said in many speeches, that there is not a tension between respecting our great tradition of civil liberties and having very effective law enforcement and anti-terror tools. There’s a false choice, I think, that is often presented.”
Still, as a former government attorney, Holder has not always found himself fighting for the news media. As a U.S. Attorney in 1996, he joined in a brief for the government that resulted in the U.S. Court of Appeals in Washington, D.C., upholding the decision to ban the news media from photographing soldiers’ caskets being returned from the Gulf War to Dover Air Force Base. President Obama said in his Feb. 9 press conference that his administration would review this policy.