Dear Eric Holder: You’re Doing Recusal Wrong

Let me start this post by saying I think it is absolutely appropriate for Eric Holder to have recused himself from the UndieBomb 2.0 investigation, in part because — as someone read into the UndieBomb 2.0 operation, he was interviewed by the FBI (though so was James Cole, who is now in charge of the investigation), and he turned over his own phone contacts to the FBI — but also because top Administration officials like John Brennan at least should be under close scrutiny in this investigation.

Nor do I think, in his recusal, Eric Holder did anything in bad faith. I have zero reason to believe Holder is tampering with this investigation, in any way shape or form.

But Jeebus, Holder is doing this entire recusal thing wrong.

That’s true, first of all, because with a rabid Congress (at the time he recused from the investigation and now) accusing him of wrongly delegating this investigation to Ronald Machen in an investigation that could net incredibly powerful people as suspects, Holder did not write his recusal — or a delegation of authority of Attorney General powers — to James Cole, who is overseeing the investigation.

Now, Holder claims not to remember whether he memorialized his recusal in past cases, including the John Edwards investigation — the most high profile case in which he has recused. And though George Holding, who conducted that investigation and now represents the Raleigh, NC, area in Congress, was in the room, I’m not sure they clarified whether he had written anything down there, either. Holder was, however, very clear about what authorities he delegated to Patrick Fitzgerald when he investigated the John Adams Society, which led to the prosecution of John Kiriakou, having sent 3 letters (1, 2, 3) memorializing the limits of Fitz’ authority.

I think part of the problem is that Holder didn’t really appoint special counsels to investigate this matter, even while he made a big deal of appointing the people who — US Attorney for DC Ronald Machen’s appointment rather then US Attorney for Eastern District of VA Neil MacBride aside — would have been investigating it anyway. Dumb. Congress was screaming for some kind of formality, and Holder didn’t establish that formality.

And then there’s the journalist-subpoenaing precedent of the Plame investigation where Fitz several times got letters clarifying his authority. The first of those reads,

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a CIA employee’s identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

This came in handy later in the investigation when Libby’s lawyers challenged Fitz’ authority.

Then, Holder’s recusal hasn’t been very strict. Most troublingly, Eric Holder reviewed the letter James Cole sent to the AP (though Holder saw a draft which, according to his press conference, included things like details on the specific scope of the subpoena that don’t appear in the final letter). NPR’s Carrie Johnson asked him about this.

Johnson: Is that normal practice when you’re recused from a case?

Holder: No, I just wanted to see the le–I saw I mean I saw saw the draft letter this morning. And I just wanted to have an opportunity to see what it looked like so I’d have at least some sense of the case in case there were things in the letter that I could talk about with the press.

Reviewing this letter — particularly before changes got made to it!! (changes which appear to have deprived the AP of full notice of the call record grab) — simply isn’t appropriate for someone recused from the case!

Again, I’m not suggesting malice here.

But the AP has already — rightly, in my opinion — challenged whether DOJ complied with its own guidelines on media subpoenas. In particular, AP complained that they had not been given notice and an opportunity to cooperate. That’s one of the guidelines that requires AG involvement.

Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

Yet the guy who signed this subpoena and with it signed off on the claim that alerting AP to the subpoena would do grave damage to the investigation  — James Cole — apparently has no piece of paper giving him authority to sign it.

If DOJ ultimately decides to charge the AP’s sources, if that person has the kind of legal representation DC bigwigs often have, I fully expect them to challenge every bit of their prosecution. After all, by subpoenaing the AP, Cole claimed that DOJ could not get the information from any other source. So if AP’s sources are indicted, they can rest assured that their prosecution went through this bottleneck of an Acting AG who had no paperwork to prove he had the authority to sign off on the claims he was making to get information he was certifying was absolutely necessary to find them. And from this subpoena forward, everything else will be fruit of a tainted AG, at least if you’ve got fancy lawyers.

Dumb.

One last thing. Also in today’s hearing, Holder admitted that it probably would have been a good idea to write down this recusal thing in public. Which, if they do ever charge AP’s sources and if said sources have the resources to make this obvious challenge, they’ll cite in court to document that even the guy who delegated this authority thinks it would be smarter if he did so in writing.

Seriously, this entire recusal process has been an own goal. As I said, I don’t think DOJ is pulling anything fishy. But the entire point of recusing is to ensure there’s proof nothing fishy happened. And in this case, DOJ has anything but.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

21 replies
  1. lefty665 says:

    It’s all just a little too cute to be innocent bumbling. Starting with: Oh I don’t know anything about that because I recused myself. To: Oh it wasn’t a written recusal, and I’m not quite sure when it happened, but I still don’t know nuttin’, and I can’t talk about an ongoing investigation anyway.

    Bullshit from an administration that has claimed unitary executive powers and screw the rest of us.

    Can the cloaks of national security and state secrets be far behind if the impertinent questioning continues? Holder’s the firewall and zero degrees of separation from leak averse Pres O.

    What makes anyone think it stopped with phones?

  2. Peterr says:

    @lefty665: I disagree.

    I think Marcy’s painted a very compelling and consistent picture of incompetence when it comes to handling recusals by Holder.

    I think the only reason Fitz got such nice written ones on the John Adams Society case is that Fitz knew that his prosecutorial life depended on having them, and he demanded getting it in writing before taking one step forward.

  3. kevin lyda says:

    Why do people care about this?

    We’ve known since the “patriot” act was passed that the government could tap pretty much anything. Even before then FISA existed and pretty much never refuses warrants.

    All that’s been true since 2001. So why care now?

    Is it because it’s “the press?” Because if it is I’m unimpressed. If we suddenly are caring about everyone being snooped on I’m interested. If it’s just the mainstream media why should we care?

    To protect anonymous sources? Like the ones who lie and spread the crap their political bosses want to reporters gullible enough to print it? I have no interest in protecting that.

  4. P J Evans says:

    @Peterr:
    Given PatFitz’s reputation for dotting all the i’s and crossing all the t’s, I’m sure he wanted his authorizations in writing. He seems to be far more competent than the people supposedly running DoJ. Holder is running DoJ like he expects everyone else to read his mind – it may be okay if you’re doing corporate work, but he should know better.

  5. lefty665 says:

    @Peterr: Opinions vary, and that’s the strength of this blog. We often gain the most insight through the vigorous interaction of ideas.

    This is an administration that has viciously pursued leaks. It has used the Espionage Act more times in the last 5 years than in the prior 70 combined.

    In his testimony today the AG was proud of his experience as a USA and a judge. With his education and experience, to cut him slack as such a bumbling ignoramus that he cannot figure out how to recuse himself properly borders on racism. If he does know better (as I infer he does) it casts his behavior in a far different light, and one consistent with other acts of this administration.

    What do you tell Drake, Kiriakou et al? That their persecution was just because the AG was a bumbling dolt who didn’t know any better? Or was it part of an ongoing and expanding pattern of behavior?

    The intrusiveness of the AP search was profound, and as far as we know, a material expansion of state authority. To write the AGs actions off as good natured bumbling trivializes what has happened. To me it also discounts much of the discussion here over the last several years.

    The things I disliked in the Duhbya years I dislike even more in the O years. I expect better from the “good guys”, not same or worse.

  6. orionATL says:

    i agree with lefty. this is too fast by half.

    holder has years behind him working in doj. some years more working commercial law. there probably are few tricks he hasn’t seen – and used.

    holder’s doj has been as ruthless and as agressive in cases of every kind it has dealt with as any i recall in my lifetime.

    the sole exceptions are doj employees and politically powerful institutions, neither of which this doj will touch.

    what ew is saying is that she does not feel there is any reason to doubt holder’s “honesty” on the matter of his recusal.

    i think, but don’t know for sure, that there are lots of reasons.

    one that came to mind instantly was the fact, if i understand correctly, that holder’s recusal was not a written recusal.

    could this be true? of a 21st century ag?

    what might be the benefit of a sly,sly lawyer not writing out his recusal?

    DATE – that’s what. time for to fudge as needed.

    one does npt need solely present case facts to distrust holder. his and his dept’s history over five years is enough.

    a ruthless,cruel, bullying, dishonest dept of justice – that’s my assessment of the sum of our AG’s leadership.

    so, yes, there is much historical fact and consequence to distrust anything holder does.

  7. orionATL says:

    this is the the oval office desk of president barrack h. obama:

    on a triangular piece of “desktop furniture” is printed on onyx –

    “THE BUCK PASSES HERE”**

    ** in response to the criticical outcry over doj’s ecxeedingly wide-ranging subpoenas to the AP,

    president obama asked n.y. senator chuck schumer to re- introduce his 2009 media protection bill.

    that’s leadership folks!

  8. Peterr says:

    @lefty665: Recusal as a judge is a much simpler thing. You say “I can’t sit on this case” and hand it back to the one handling the scheduling of cases.

    Here, Holder can’t (or won’t) just do that. It not just “don’t send me any memos asking me to decide something” but also keeping your nose out of things. Like asking to see Cole’s letter to the AP.

    As a judge, he might have chatted in the lunchroom about a case he recused himself from. “Hey, I’m not on the bench, so it doesn’t matter what I say.”

    As AG, OTOH, it matters a lot.

    I’m perfectly willing to grant you that the DOJ and this administration has been trying to expand its executive authority, particularly as to leakers, but that doesn’t mean that Holder is a competent supervisor when it comes to recusals. These are not mutually exclusive positions.

    And I don’t know how the hell you got “racsim” out of my comment.

  9. bmaz says:

    These are arguments that the AP can proffer against the government action; it is far less clear to what extent any “sources” ultimately arrested and prosecuted could use them though as third parties.

  10. lefty665 says:

    @Peterr: You may well be right. You and EW both make a case for innocent incompetence. I’m obviously not a lawyer, and legal insight is part of why I hang around here. I tend to take the opinions until they conflict with my own eyes and ears.

    To my ear it is too pat, too smooth, and has the effect of stalling and concealing rather than being forthcoming. The mistakes keep us from a better understanding of actions the administration would prefer we keep our noses out of. “Trust us” does not have a good track record in D.C.

    Yesterday it seemed the reason we saw citations of the law requiring personal approval of the AG was to contrast his behavior, leaving no record of the delegation of authority, with the requirements clearly stated in the law. That was also part of EW’s post and your comments.

    To me it looks like dodging by politicians under pressure, artfully done. It is not as if this administration does not have anyone after them, as the Benghazi nonsense shows. It is also an administration that has been obsessed with leaks, and has shown little acceptance of limits on their actions in pursuit of them. So, our opinions vary. Over the coming weeks and months I expect we will have more than ample opportunity to see which, if either, is closer to actuality.

    I apologize for implying racism may have leaked into analysis. I have lived in the south too long. Here, attributing naivety, inexperience, bumbling, or ignorance are all too often ways to justify actions or opinions that are at their root based in race. Making essentially those arguments about the AG while asserting belief in good intentions tripped my southern cognitive dissonance detectors. Coincidence/causality, often hard to discern. Again, I apologize.

  11. JamesJoyce says:

    @lefty665: “The things I disliked in the Duhbya years I dislike even more in the O years. I expect better from the “good guys”, not same or worse.”

    Sums it up as the continuum, continues…..

  12. bmaz says:

    @lefty665: I see no evidence of anything more than sloppiness. People watching this have known from the first second about the requirement of “AG sign off”, that was nothing new trotted out yesterday. There is no statute that makes a verbal assignment prohibited or illegal. There is no rule I can find that requires a recusal of the AG in favor of the DAG to be written. There is such a rule for when a US Attorney for a district recuses because of conflict; and it makes sense that if a US Attorney has to do it in writing, so too should the AG. But there is nothing per se nefarious about this in the least. And, frankly, when an attorney feels he has a conflict sufficient to warrant recusal on a case, that is inherently sufficient grounds in most all cases that he SHOULD indeed recuse. Being an interviewed centrally involved fact fact witness in the underlying scenario as absolutely putative grounds for Holder to believe recusal is appropriate.

  13. Skilly says:

    @orionATL:
    Would not the recusal date be set by the notification that he would be interviewed by the FBI on the facts? One would think that the AG would have had notice of an interview and the Topic of the proposed interview? Not to quibble with you but I am not clear as to what advantage might be gained from the tactic you describe. How might that come into play?

  14. lefty665 says:

    @bmaz: Thank you. I take your knowledge of the law, and always benefit from your insight. I agree that recusal was the right course and apparently, at some point, as yet undisclosed, what the AG did. My argument, perhaps naively, has not been criminality.

    We can observe behavior, but intent is often much harder to discern. The difference it seems is between the assumption of bumbling good intentions where the law did not clearly require documentation versus carefully crafted obfuscation of profoundly broad and intrusive actions that are consistent with other administration conduct.

    If we had not had a history of executive excesses as exemplified by persecution of whistle blowers, bludgeoning with the Espionage Act, questionable invocations of National Security and State Secrets to name a few that have been thoroughly explored here, I would be inclined to a much more charitable view.

    I infer trusted sources have made a persuasive case that undocumented recusal was just dumb. Back to where I started, that seems too pat by half in the context of the last 5 years. Is well intentioned but just plain dumb as a stump why we have had the excesses of this administration? I don’t think so.

  15. orionATL says:

    @Skilly:

    that’s a good point. i don’t have any idea what the answer would be. however, if being interviewed set the date, then why need he feel an obligation to do anything more? apparently he did feel such an obligation. whether his verbal recusal occurred before or after the interview (if there was one) is not clear to me though it may be to others.

    for me the point is not that the ag did something illegal – he’s not stupid – but that he sought an advantage for himself, something his doj prosecutors have done in spades during his tenure.

    had he written, signed, and dated a recusal note you and i and lefty and ew and peterr and bmsz would not be having this debate.

    a baseline question which would help me understand this matter would be whether ag’s ever sign a recusal. next q: do they typically not sign and date? next q: is there any historical pattern (precedent) at all -is it just situational/personal with a particular ag?

  16. orionATL says:

    @orionATL:

    simply and directly,

    a verbal recusal not tied to a date certain allows the ag to fudge the timeline of his involvement in planning the u.s.-doj’s legal responses to ap’s stories should his involvement ever become an issue. it also makes it more difficulat to make it an issue.

    a writen. dated recusal sets the time without question.

  17. JohnLopresti says:

    A lot of the Libya history goes way back into post-revolutionary, post-colonial northern rim of the Africa continent’s events and the spectrum of governments that led that part of the continent into the second part of the XX centyry.

    On a simultaneous Republican attack, these past few weeks, however, it was very clear as numerous Republicans readied new confirurations of Post-Citizens-Unoited decision entities in preparation for the 2012 electoral cycle, that IRS had not written with enough sp3ecificity about what 401c3 and 501c4’s permissibly could do during the electoral fundraising for republicans, what those new entities could call charity or educational activities.

    I agree with Bmaz that the ambassador’s demise is only slightly unusual; though the US’ record typicallly is more organized. I am sure Rep. Issa can add some illumination, laced with Republican hyperbole, as additional hearings proceed.

    It is important to review the academic work pointing to CU’s being a problem for any rulemaking during that election cycle. There is an ample corpus of written work explaining that it looked possible from that early post-CU material that IRS was ill-suited to move with regulatory rule-making alacrity; and FEC, as usual, remains as hamstrung as it has been since BushW and his congresses assured FEC was going to remain flaccid with commissioners serving beyond expired terms and the congressionally sanctioned configuration of FEC evenly divided Democrat-Republican.

    I am hoping Holder sees thru the Benghazi hype early and soon from Issa’s committee. It’s a defensive the stages of which Hilary does not need to implement. The Dept of State has lots of employees who are influential and rather independent. Let’s keep State in perspective. And, get Kerry’s participation to help the Democratic Party develop strong candidates besides Hilary over the next 2+ years. Say what you will about Obama’s moderateness, my senses is that both Holder and Obama are government treasures. EW’s perspective on journalistic privileges are important, and so is Bill Keller’s. If Holder has a few embarrassing moments, the could not be as obtuse as Ashcroft’s, and the amnesic “Judge”‘s were during post-911 hearings in the House, and even in the senate.

    However, the 2014+2016 electoral processes are of the essence in much of the Republican re-configuration; Democrats need to obtain in court new rules that will support clearer limits on licit post-CU partican fundraising and rules.

    I am really bad about the new ‘pilotless’ ordnance. Mueller’s replacement should unearth some of the new dynamics of that intell policy as it takes shape.

  18. Frank33 says:

    When you have lost the Nooner, there will be laughs. Climate-gate, I mean Benghazi, I mean IRS scandal is the worst, worse than Watergate, worse than neo-con forgeries for the Irak War, worse than Bags of Cash.

    We are in the midst of the worst Washington scandal since Watergate. online.wsj.com/article/SB1000…— Peggy Noonan (@Peggynoonannyc) May 16, 2013

  19. lefty665 says:

    O has now come out, “No apologies” for the investigation including the AP subpoenas.

    Tell me again please how the AG’s fantasy recusal and mea non culpa are innocent dumb and not deliberate obfuscation and dissembling.

    I expect better of the “good guys”, not same or worse. If we don’t get better then they ain’t the “good guys”.

Comments are closed.