(CNN) – Attorney General Eric Holder’s direct involvement in the decision to search a reporter’s e-mail records should bar him from leading a review of how the government investigates national security leaks, Republicans argued Sunday.
The decision to apply for a warrant to search Fox News reporter James Rosen’s private correspondence was vetted at the Justice Department's highest levels, including Holder, a Justice official said last week, although the later decision to issue the warrant was made by a federal magistrate judge.
The Obama administration's aggressive posture against leaks to reporters on national security matters has come under scrutiny as probes of Rosen and Associated Press reporters have come to light.
It prompted Obama to announce on Thursday that he has directed Holder to review federal guidelines for investigating leaks and reporters. That review will include assembling a panel of media representatives.
But Republicans argued Sunday that Holder was too entwined in the various leak investigations to objectively review his agency’s rules.
“You cannot investigate yourself, and I think it's a total conflict of interest,” said Sen. Tom Coburn, R-Oklahoma, on CBS’s “Face the Nation.”
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The investigation into Rosen centered on a 2009 leak of intelligence related to North Korea and the potential ramifications of imposing further sanctions on the country. Investigators searched Rosen’s phone records, e-mails, and security badge logs at the State Department in the course of their probe.
In a separate case, records from Associated Press reporters and editors were seized as the government attempted to find out who leaked classified information about a terrorist plot based in Yemen.
While employees of the AP were not cited as potential criminals, an FBI affidavit used to obtain the warrant for Rosen's e-mails described him as potentially being an "aider and abettor and/or co-conspirator" to the crime of disclosing government secrets.
A top State Department official was charged with leaking government secrets in the Rosen case, though formal charges were never filed against Rosen or Fox News.
The disclosure that government investigators have used journalists’ phone and e-mail records to try to ferret out leakers has led to an outcry from news organizations and civil liberties advocates. Speaking Thursday, Obama said he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable."
Earlier this month, the White House said it was asking Sen. Charles Schumer, D-New York, to reintroduce so-called “reporter shield” legislation that would put in place stricter standards for government seizure of media records.
The bill would switch the sensitive decisions on investigating journalists from the attorney general, who is currently empowered to issue subpoenas to news organizations, to a federal judge, who is independent of the executive branch.
Schumer said Sunday that he and Sen. Lindsey Graham have assembled a bipartisan group of eight senators to help push the measure forward.
“If we can set up these rules, I think we'll avoid the morass,” Schumer said on CBS. “You always need set rules and an independent arbiter. We have neither now.”
Graham, appearing on “Fox News Sunday,” said the recent Justice Department incidents are grounds for a special counsel, who he argued could more objectively review the government’s rules for investigating journalists.
“When classified information is leaked into the public that can put operations or American operatives in harm's way, we've got to find a way to pursue that. But this is clearly an overreach,” said Graham, R-South Carolina.
Even one Democrat said Holder’s impartiality was an open question. Sen. Dick Durbin, on “Fox News Sunday,” said he would “like to know if Holder has any conflict in here beyond what we've heard when it comes to the Fox case.”