Linking to a CBSNews.com story about a Justice Department subpoena of a news website's visitor lists, the Fox Nation featured the false headline, "Holder subpoenas Web site Visitor Lists," and other conservative media outlets and figures, including the Drudge Report, advanced similar claims that Attorney General Eric Holder was responsible for the subpoenas. However, Holder was not attorney general at the time the subpoena was issued by a Bush-appointed U.S. attorney; moreover, the story to which the Fox Nation and Drudge Report linked reported that a "Justice Department official" said that "the attorney general's office never saw" the subpoena, which was withdrawn in February.
Fox Nation, Drudge implicate Holder in subpoena of website's visitor lists
Fox Nation headline: "Holder Subpoenas Web site Visitor Lists." On November 10, linking to a CBSNews.com report about a Justice Department subpoena of "visitor lists" for news website Indymedia.us, the Fox Nation featured the headline, "Holder subpoenas Web site Visitor Lists."
Drudge Report suggested Holder involved in issuing subpoena. On November 10, the Drudge Report linked to the CBSNews.com report below a picture of Holder:
Other right-wing media baselessly suggest wrongdoing by Obama White House, Holder
Napolitano, Sekulow baselessly suggest White House involved in issuing subpoena. On the November 10 edition of Fox News' Glenn Beck, while noting that, in guest host Andrew Napolitano's words, "[a]ccording to the Justice Department officials, the subpoena ... was not authorized by the attorney general," Napolitano and guest Jay Sekulow, chief counsel for the American Center for Law and Justice, baselessly suggested that the White House was involved in issuing the subpoena:
SEKULOW: What the U.S. attorney was doing was intimidating this independent news site, which is generally left of center. But I think the White House has to be very careful, judge. They have gone after Fox News. They've gone -- you know, they had this fishy email issue back in the summer.
SEKULOW: They are playing very dangerously with media and with the new media -- very, very dangerous.
NAPOLITANO: Why are they after this Indymedia site if it's a left-wing site? And why did they tell Indymedia when they served the subpoena, "Don't tell anybody that we served you with a subpoena?"
SEKULOW: Well, they told them not to. They told them they didn't want it disclosed because they ultimately are withdrawing the subpoena here. And, judge, that's the irony of this.
IBD asks, "If Holder didn't see [the subpoena], why didn't he?" In a November 11 editorial, Investor's Business Daily noted that the Justice Department claimed Holder didn't see the subpoena and then asked, "If Holder didn't see it, why didn't he?" From the IBD editorial:
Moreover, the Justice Department claims Attorney General Eric Holder didn't see the subpoena -- even though it's normal procedure for the top Justice official to approve any subpoena issued to the media. If Holder didn't see it, why didn't he? And if he did, did he think it was OK to bully a news organization like this?
But Holder was not attorney general at the time subpoena was issued
Justice Dept. issued subpoena before Holder was sworn in on February 3. The Justice Department issued the subpoena of Indymedia's visitor records on January 23. Holder was confirmed by the Senate on February 2 and sworn in as attorney general on February 3.
Acting attorney general at time subpoena was issued was a Bush appointee. Mark Filip, who was acting attorney general at the time the Justice Department issued the subpoena, was nominated by President Bush to be a U.S. District Court judge in 2004; Bush subsequently nominated him to be deputy attorney general in 2008. Filip served as acting attorney general from January 20 until Holder's confirmation.
Attorney who issued subpoena was a Bush appointee
U.S. attorney who issued subpoena was a Bush Justice Department appointee. U.S. Attorney Tim Morrison, who issued the subpoena for Indymedia's visitor records, was appointed acting U.S. attorney in 2007 and subsequently appointed as U.S. attorney for the Southern District of Indiana in 2008. CBSNews.com reported that Morrison said in a February 25 letter that the subpoena had been withdrawn.
CBSNews.com update: Justice Dept. official said attorney general's office "never saw" subpoena
CBSNews.com story updated to note Justice Dept. official's claim that Attorney General's Office "never saw" subpoena. In a November 10 update to the CBSNews.com story to which the Fox Nation and the Drudge Report linked, correspondent Declan McCullagh wrote:
Update 1:59pm E.T.: A Justice Department official familiar with this subpoena just told me that the attorney general's office never saw it and that it had not been submitted to the department's headquarters in Washington, D.C. for review. If that's correct, it suggests that U.S. Attorney Tim Morrison and Assistant U.S. Attorney Doris Pryor did not follow department regulations requiring the "express authorization of the attorney general" for media subpoenas -- and it means that neither Attorney General Eric Holder nor Acting Attorney General Mark Filip were involved. I wouldn't be surprised to see an internal investigation by the Office of Professional Responsibility; my source would not confirm or deny that.