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Sunday, May 26, 2013

Drip, Drip, Drip

“The truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.” — Winston Churchill

Last week when asked about the hearings taking place regarding Benghazi, the IRS and the Justice Department’s wiretapping and e-mail searches of AP and Fox News House Speaker John Boehner replied with the simple statement: “drip, drip, drip.” Boehner was right on target. This past week the drips continued to flow from the congressional committees and various news outlets.

There was Lois Lerner’s taking the Fifth Amendment when called to testify in front of Darrel Issa’s House Oversight and Government Reform Committee — something many lawyers like the famed Alan Dershowitz believe she waived her rights to the Fifth with her opening statement. Then on Thursday we learned that Lerner had been placed on “administrative leave” with full pay.

Next we were informed that U.S attorney and Obama ally is taking heat for handling of leak probes. Ronald Machen Jr., the U.S. attorney for the District of Columbia, was nominated by President Obama in 2009 and now runs the biggest federal prosecutor office in the country. His hundreds of attorneys handle everything from gang violence to corruption.

But in recent years, leak investigations have become a hallmark of his portfolio. And his dogged pursuit of the squeaky wheels in government has led him into the tenuous — and some say unprecedented — territory of lumping in leakers with journalists.

According to a Fox News report:

"What's astonishing here is that never before has the government argued that newsgathering -- in this case, asking a source to provide sensitive information -- is itself illegal," Gabe Rottman, legislative counsel at the American Civil Liberties Union, told

Machen was an early and frequent campaign donor to Obama during the 2008 election, giving close to the maximum amount allowed by law. He gave $2,300 in the general election and nearly as much during the primary.

Yet Machen was arguably chided this week, though not by name, when Obama announced a review into the Justice Department's guidelines for investigations that involve journalists. He said he was "troubled" by the developments and that journalists should not be "at legal risk" for doing their jobs.

Machen's investigation into accused leaker Stephen Jin-Woo Kim raised exactly that concern. As part of that case, federal officials obtained a search warrant for Fox News reporter James Rosen's personal emails, and seized phone records for various Fox News lines. Officials were able to obtain the warrant on the pretext that Rosen was likely a criminal "co-conspirator" along with Kim. Though Rosen was not charged, media and other watchdog groups have described that step as "chilling."

Aside from his involvement in the Kim case, Machen was one of two federal prosecutors tapped by Holder in June of last year to lead the investigation into a string of high-profile security leaks.

It was presumably that investigation that led his office to seize two months of phone records from the Associated Press. Machen first notified the news service of the seizure earlier this month.

Some worry that not only has Machen gone too far but he may be too close to the White House to remain objective. Machen was an Obama campaign contributor and supporter before being appointed by the president in 2009.

"As a former volunteer for Obama for America, contributor to the president's election campaign, and having assisted with the vetting of vice presidential candidates, Machen is a far cry from the beacon of independence and impartiality that something as sensitive as this investigation demands," Sen. John Cornyn, R-Texas, told”

Then we were told that the DOJ begged the Judge to keep James Rosen in the dark about monitoring his e-mails. According to a report on Newsmax:

“The Justice Department begged a federal judge to not tell Fox News reporter James Rosen that it was tracking his telephone calls and emails in a probe regarding a national security leak.

U.S. Attorney Ron Machen argued in 2010 that the traditional 30-day notice period did not apply to Rosen as Justice secretly monitored his Gmail account, according to new exhibits unsealed this week and disclosed by The Hill.

“Where, as here, the government seeks such contents through a search warrant, no notice to the subscriber or customer of the e-mail account is statutorily required or necessary,” Machen wrote in a June 2010 motion. “Thus, this court's indication on the face of the warrant that delayed notice of 30 days to the customer and subscriber was permissible was unnecessary.”

Machen, through another request granted by the court, stopped Google from telling Rosen that Justice was spying on his e-mail account, the Hill reports.

The prosecutor had demanded to see all of Rosen’s emails — including deleted messages, emails in his trash folder and all attachments sent to and from him.

The original warrant in the Rosen case was signed personally by Attorney General Eric Holder, NBC News reported this week.

Meanwhile, Fox News President Roger Ailes on Thursday blasted Justice for targeting journalists as if they were criminals and said the government's seizure of reporters' emails and phone records would not stand "the test of law."

“The administration’s attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time,” Ailes said. “We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth.”

And finally we learned that Attorney General Eric Holder personally approved the warrant for Fox News’ James Rosen’s e-mail searches. After testifying in front of a Senate Committee that he had recused himself from the AP investigation and could not recall any other warrants he had personally approved. Newsmax reported:

“President Barack Obama's Justice Department is defending the decision by Attorney General Eric Holder to sign off on the search77c4893f-95da-41ae-9020-21af902725c7 warrant used to gain access to Fox News reporter James Rosen's emails, according to the news organization.

The warrant named Rosen a "possible co-conspirator" in violation of the Espionage Act for obtaining leaked classified information from a Pentagon source. Rosen has not been charged.

"The Department takes seriously the First Amendment right to freedom of the press," the agency said in a written statement to Fox on Friday. "In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the department, including discussions with the Attorney General."

Officials insisted that they sought an "appropriately tailored search warrant" only after "extensive deliberations and after following all applicable laws, regulations, and policies."

The revelation of Holder's involvement came on the same day Obama said in a speech that he had ordered Holder to review the Justice Department's standards for investigating cases that involve journalists.

"I am troubled by the possibility that leaked investigations may chill the investigative journalism that holds government accountable," Obama said in the speech. "Journalists should not be at legal risk for doing their jobs."

A law enforcement official told NBC News of Holder's personal involvement on Thursday. Holder had previously said that he recused himself from the AP phone records investigation since he had been a witness in the initial probe, but no one had previously indicated Holder's role in the Rosen case.”

Senator Lindsay Graham (R-SC) stated last week that the dam was about to break on the Benghazi investigations. In an article on Graham is quoted to say:

“I think the dam is about to break on Benghazi. We’re going to find a system failure before, during, and after the attacks. We’re going to find political manipulation seven weeks before an election. We’re going to find people asleep at the switch when it comes to the State Department, including Hillary Clinton. The bond that has been broken between those who serve us in harm’s way and the government they serve is huge — and to me every bit as damaging as Watergate.”

The May 7, Townhall article states:

“Say what you will about Graham's politics, he's been as dogged and tenacious on Benghazi as anyone on the planet. Tomorrow's hearings will contain dramatic, on-the-record testimony from three State Department officials. These men will tell the truth, despite alleged threats of professional reprisals. They'll testify about the unforgivably lax security measures at the US diplomatic compound in Benghazi leading up to the 9/11 attack, the Washington-based chain of command's paralysis and inaction during the raid, and the administration's intentional scrubbing of public talking points describing the massacre. (For previews of these revelations based on existing reports, read this, this and this). As an additional primer, be sure to check out former Marine Bing West's piece at National Review. It's an insightful glimpse into US military leadership's serious shortcomings during the multi-hour siege. A snippet:

The military did nothing, except send a drone to watch the action. Defense Secretary Panetta later offered the excuse, “You can’t willy-nilly send F-16s there and blow the hell out of place. You have to have good intelligence.” As a civilian, Mr. Panetta probably didn’t know that 99 percent of air sorties over Afghanistan never drop a single bomb. General Dempsey, however, knew it was standard procedure to roar menacingly over the heads of mobs, while not “blowing the hell out of them.” A show of air power does have a deterrent effect and is routinely employed. A mortar shell killed two Americans during the tenth hour of the fight. A mortar tube can be detected from the air. The decision whether to then bomb should have resided with a pilot on-station — not back in Washington. As for the alleged lack of “good intelligence,” three U.S. operations centers were watching real-time video and talking by cell phone with those under attack. Surely that comprises “good intelligence.”

The integrity of the Pentagon is not in question. The purpose of an After Action is to perform better the next time. Is the public seriously to believe that in ten hours Dempsey and the $600 billion dollar Defense Department could not dispatch one ad hoc rescue team, as our embassy in Tripoli did, or order one fighter jet to scramble? Have our military’s best and brightest lost the capacity to improvise? Clearly, that merits an assessment. Will General Dempsey ask for a review of his own procedures? Do as I say, or as I do? The chairman of the joint chiefs is the only general who can answer that.”

Let's all hope that Sen. Lindsey Graham's suspicion is correct — not for the sake of politics, but for the sake of Patricia Smith and Charlie Woods. They, and the American people, deserve the truth

The drip, drip, drip will continue unless three things happen and happen soon.

Firstly we need a special prosecutor is appointed to look into the activities of the Justice Department. President Obama said in his speech on last Thursday, as speech intended to obfuscate the three scandals plaguing his administration:

“Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. And that’s why I’ve called on Congress to pass a media shield law to guard against government overreach. And I’ve raised these issues with the Attorney General, who shares my concerns. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and he’ll convene a group of media organizations to hear their concerns as part of that review. And I’ve directed the Attorney General to report back to me by July 12th.

In essence Obama is stating that he is calling for the fox to guard the henhouse. Now Senator Lindsey Graham is calling for a “special council” to investigate the doings of the Justice Department and Eric Holder. Fox News reports:

“A top Senate Republican on Sunday called for a special or independent counsel to investigate the Justice Department tracking the phone calls and emails of a Fox News reporter, saying Attorney General Eric Holder was too involved in the process to be objective.

President Obama asked Holder last week to investigate the matter involving Fox reporter James Rosen, who in 2009 was reporting on North Korea’s efforts to acquire a nuclear weapon.

Holder “signed off on the affidavit,” Sen. Lindsey Graham, R-S.C., a member of the Senate Armed Services Committee, told “Fox News Sunday.” “This would be a good time for a special counsel or independent counsel. This is clearly an overreach.”

The Justice Department search warrant stated investigators had probable cause to think Rosen had violated the federal Espionage Act and that he might have aided or abetted others or was a co-conspirator.

“James Rosen is a lot of things, but not a criminal co-conspirator,” Graham said.”

“Holder has already recused himself from an investigation into the Justice Department looking into the phone records of the Associated Press, related to a May 2012 story that included information about a foiled plot in Yemen to bomb a U.S.-bound airliner.

That Holder approved the Justice Department searches appears to contradict earlier statements before Congress in which he said accessing reporters’ phone logs was “not something I’ve ever been involved in, nor would I think is a wise policy.”

Graham also called for a special counsel to investigate the IRS flagging Tea Party groups and other politically conservative-leaning organizations seeking tax-exempt status.”

The only problem we have with this action is that Holder will be responsible for appointing the special council. This has many problems as we know the partisanship of Holder. Perhaps a special committee would be better, although it would have a different set of problems. For this reason a special committee might serve the American people better. But there must be the threat of criminal penalties if we want the whole truth and to punish the wrong-doers with more than administrative leave.

Secondly we need a special prosecutor to look at the IRS. This one would be a bit different as even though Holder would be involved in the appointment there are a great many Democrats who would pressure Holder for a neutral prosecutor. I don’t believe Issa’s committee will be able to get the bottom of the IRS scandal for the following reasons.

His congressional committee is just too big. Few members, like Trey Gowdybb458fb7-c9e2-4979-bceb-6a52a3a28e36 (R-SC), have prosecutorial experience. There are 38 members of Issa’s Oversight and Government Reform Committee and each member is limited to 5 minutes of questioning. This means that an experienced prosecutor like Gowdy is allowed 5 minutes and then has to sit and wait 3 hours for a second round unless another committee members yields their time.

  • A Congressional committee does not have the power of criminal sanctions
  • A Special prosecutor has all the time in the world to question witnesses
  • A Special prosecutor has subpoena and immunity powers. They can demand witnesses testify and grant immunity for that testimony if they believe it will help peel back more layers of the onion
  • Special prosecutors work from the bottom up and usually know many of the answers prior to taking the deposition of the next higher witness.
  • If you lie to the special prosecutor you go to jail. Just ask Scooter Libby.

Thirdly we need a special committee to investigate what happened in Benghazi. Special committees have much fewer members and they are handpicked by the Speaker of the House and the House Minority Leader, Nancy Pelosi. Special committees are usually staffed with attorneys and investigators experienced in criminal prosecutions. With fewer members committee members will have more time for questions and follow-up questions.

After this long Memorial Day weekend Boehner and Congress need to get back on track with the Benghazi, IRS and Justice Department hearings. They need to get serious and push for either special prosecutors or select committees that would have the ability to query witnesses with greater authority and tools — tools of subpoena power and criminal prosecution. If they do not the drip, drip, drip will continue until it eventually stops and the American people become bored. If this happens the government and the Obama administrations win and we lose.

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