By David Ingram and Timothy Gardner
WASHINGTON (Reuters) – Attorney General Eric Holder appears to have little choice but to launch a new round of investigations into media leaks, the very issue that consumed him for the last month and led to renewed calls for his resignation.
Holder’s Justice Department was called upon to identify the leaker of sensitive information when on Saturday the super-secret National Security Agency filed a report requesting a criminal investigation.
U.S. officials said an investigation will undoubtedly try to uncover the leaker who gave a secret court order to Britain’s Guardian newspaper, as well as whoever gave a document describing surveillance methods to both the Guardian and the Washington Post.
U.S. Director of National Intelligence James Clapper on Saturday blamed the outlets for what he called “reckless disclosures” of classified spy agency material.
The test for Holder comes as he deals with fierce bipartisan criticism for his agency’s tactics in pursuing media records in other leak investigations. President Barack Obama ordered him last month to review Justice Department procedures for handling media cases, leading Holder to conduct a series of private meetings with news executives and lawyers.
Those sessions focused on two Justice Department leak inquiries that brought an outcry after media records were seized without advance notice and one news reporter was labeled a criminal co-conspirator in documents seeking his records.
Clapper on Saturday aggressively defended secret U.S. data collection, blasting the Guardian and the Post for disclosing the highly classified spy agency project code-named PRISM.
A Justice Department spokesman declined to comment.
“It will be an interesting chance to see if the Justice Department has learned anything,” said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, a journalists’ advocacy group.
Even after the Guardian unveiled its exclusive story on the court order, Holder was reassuring news outlets on Thursday that he would not prosecute working reporters for doing their jobs.
But the publication of NSA materials – and Clapper’s strong condemnation of it – puts Holder back in the position of having to evaluate whether the leaks compromised valuable sources of information used to protect the public.
“I don’t see how they couldn’t pursue leak investigations in the case of the disclosures this week,” said Carrie Cordero, a former Justice Department national security lawyer.
Cordero, now the director of national security studies at Georgetown University Law Center, said it would be unthinkable for prosecutors to bow to recent media criticism.
“The Justice Department is by tradition supposed to be politically insulated when it’s conducting an investigation, and I don’t see any reason why that would change now – as unpopular as it might be,” she said.
Holder’s political standing has been on a slow decline. On Friday Senator Joe Manchin of West Virginia became the highest-profile Democrat to suggest he should step down.
Manchin told Bloomberg TV that even if a public official like Holder has good intentions, “if they’re not being effective and they’re not being received, how effective is it and how good is it for the country?”
White House senior adviser Valerie Jarrett backed Holder in a separate interview on Thursday, telling The Huffington Post that Holder “will be in his position for quite a while.”
Chris Harper, a journalism professor at Temple University, said Holder might need to consider handing off the leak investigations.
“It is the fox guarding the chicken house. It’s time to start considering special prosecutors in these cases,” Harper said.
Holder in June 2012 handed off two leak probes to the chief federal prosecutors in Washington, D.C., and Maryland, although both prosecutors still answer to either Holder or his politically appointed deputy, James Cole.
One change in Justice Department procedure sought by media outlets is an opportunity to contest in advance any demand for records such as telephone call lists. The Associated Press reported on May 13 that the Justice Department seized some of its phone records without giving the news agency a chance to object beforehand.
Prosecutors are trying to find out who told the AP about a foiled plot to bomb an airliner over U.S. soil.
Journalists also are pressing that they not be labeled as possible criminals, as when an FBI agent in a search warrant affidavit used the term co-conspirator to describe Fox News reporter James Rosen. Rosen, who was not prosecuted, had reported secret views of U.S. intelligence officials about North Korea.
Holder as recently as Friday continued to express displeasure at the methods his prosecutors used to pursue records from Fox News and the Associated Press, said Leslie, who with other press advocates met Holder.
“He seemed to sincerely believe that those incidents were handled in a way that he didn’t like,” Leslie said.
Glenn Greenwald, the lead author of the Guardian’s surveillance stories, told the New York Times that he expects a U.S. investigation and upgraded the security measures on his computer in Brazil, where he lives, as a precaution.
Greenwald added on Twitter, “Dear DOJ: your bullying tactics will scare some sources, but they embolden others.”
(Editing by Marilyn W. Thompson and Eric Walsh)
[U.S. Attorney General Eric Holder testifies before a Senate Appropriations Commerce, Justice, Science and Related Agencies subcommittee on the Justice Department’s FY2014 Budget Request in Washington June 6, 2013. REUTERS/Gary Cameron]