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February 28, 2015 / 9 Adar , 5775
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Yes, They Really Are Very Big Deals

We have no doubt that there is some measure of political partisanship in the controversies swirling around the Obama administration. That is, after all, the American way of governance and, frankly, how wrongdoing is often identified and uncovered. But political maneuvering is just a sideshow that distracts from the questions that should concern us, each of which strikes at the heart of American self-government.

Those questions are: Did the State Department and possibly the president himself intentionally mislead the public on the Benghazi terrorist attack last September? Did the Department of Justice improperly subpoena a journalist’s phone records? Did the IRS single out for special scrutiny conservative groups seeking certain exempt status?

The Benghazi attack on the American consulate in Libya took place in the heat of a presidential campaign. For it to have emerged that the episode was a coordinated attack organized by terrorists would have given the lie to the president’s claim that the terrorist enterprise in Libya had been destroyed on his watch. Similarly, it would have underscored the lack of protection for American diplomatic personnel at an American facility.

So there certainly was motive for the administration to withhold such information from the electorate. Of course, the administration and its supporters argue that there was no effort to withhold and that the error lay in the information provided by the intelligence community – namely that the attack was the spontaneous reaction of Muslims outraged by a video they considered grossly disrespectful to the prophet Muhammad.

And there the matter sits, with congressional committees reportedly preparing for further hearings into the matter. These inquiries are obviously important, as they deal with the possibility that administration officials willfully misled the electorate by manipulating information put out by governmental agencies just prior to a presidential election.

Meanwhile, the IRS now admits it subjected organizations with “tea party” or “patriot” in their names to extra scrutiny before deciding whether to grant tax-exempt status under Section 501 (c) 4 of the Internal Revenue Code which, as distinct from Section 501 (c) (3) status, would have allowed them to keep their donor lists confidential and engage in some level of political activity. There was no disclosure until well after the election that this practice was taking place.

So on two levels there are serious issues here. Who in government tried to tamp down conservative groups, and why was news of it suppressed until after the election? The first points to possible use of governmental power to discourage financial support for certain groups, putting a severe crimp in their ability to spread their particular messages. The second is the purposeful withholding of information important to the electorate through manipulation of the flow of official and relevant news.

Ominously for the administration, polls are showing that latter controversy is particularly galling to Americans – a Quinnipiac survey of registered voters shows 76 percent favoring the appointment of a special prosecutor to investigate the IRS’s targeting of conservative groups.

Finally, the issue of the Justice Department’s subpoena of the phone records of a Fox News reporter took center stage this past week. This was reportedly part of an effort to track down the source of a leak to James Rosen, who wrote a story about a North Korean nuclear test that had not been made public.

It is unfortunate that most observers are focusing on whether Attorney General Eric H. Holder misled Congress or committed perjury in his testimony on the matter before a congressional committee. A serious examination of Mr. Holder’s response to one particular question raises serious doubts about his veracity, but the overriding issue is that a Department of Justice document has surfaced which declared that there was probable cause to believe a reporter had committed a crime when writing about secret information received from a government source. To be sure, reporters have in the past been jailed for not giving up their notes, but for a reporter to be labeled a possible lawbreaker for using information gathered in the normal course of business is something new and quite alarming.

In his May 15 testimony, Mr. Holder replied to a question about whether reporters writing about national security secrets should be indicted under the Espionage Act by saying: “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I’ve ever been involved in, heard of or would think would be a wise policy. In fact, my view is quite the opposite….”

Trouble is, Mr. Holder personally approved the DOJ’s request for the Rosen subpoena, and the affidavit submitted in support contained the aforementioned probable cause reference concerning James Rosen. Was Mr. Holder’s answer misleading? Certainly. Perjurious? Arguably. But again, the overriding issue is the resulting chilling effect of going after journalists who don’t play ball with those in power. A free and vibrant press is fundamental to any democracy.

A gloss of sorts was put on this latter issue by Mr. Holder’s convening of a private meeting with the media to discuss the need for governmental access to reporters’ phone records as part of investigations into leaks. Some news organizations, including the Associated Press and The New York Times, refused to attend anything but a public session. The Washington Post, the Wall Street Journal and the New York Daily News did attend.

But in parody-like fashion – given the issue at hand is one of press freedom – the participants were sworn largely to secrecy. Here is part of what the Washington Post wrote about the session:

The 90-minute meeting was attended by a small group of journalists after several news organizations objected to the Justice Department’s insistence that it be held off the record. The participants, however, reached an agreement with the Justice Department under which they could describe what occurred during the meeting in general terms….

It would be comical if it were not so serious.

The circumstances of the Benghazi, IRS and James Rosen controversies have not yet risen to Watergate proportions and may never do so. But one senses that the emergence of a figure like the late Judge John J. Sirica – who broke open the Watergate scandal with his relentless pursuit of the facts and who ordered President Nixon to turn over tapes of his Oval Office conversations – may not be a long time coming.

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