Eric Holder, the new Attorney General has the opportunity this week to show whether he really intends to keep his promise of supposedly making sure there are no “politics” in the actions and decisions made by the Department of Justice. As Steve Hayward reports over at National Review, the Washington Post had a “frothy” story about Michael Steele on Saturday with completely unproven allegations of campaign finance violations by Steele’s failed Senate campaign, allegations made by a convicted swindler who prosecutors say stole almost $40 million.
The Washington Post received this information through a Freedom of Information Request when the career staff in the U.S. Attorney’s Office “inadvertently sent the confidential document, a defense sentencing memorandum filed under seal.” As a former Department of Justice lawyer, I can tell you from personal experience that it is pretty difficult to “inadvertently” send out such a confidential document. When a FOIA request comes in, not only does the lawyer on the case review the documents that are being requested to make sure there is nothing confidential or privileged included, but the FOIA officer assigned to that office also does such a review to make sure the requirements of FOIA are being complied with and that documents that are excepted from release under FOIA like sentencing memoranda filed under seal are not “inadvertently” released. Perhaps this was just an accident, like all of the other “accidental” releases of privileged legal memoranda to the Washington Post by career staff during the prior administration.
If Holder lives up to his word, then the individuals who leaked this information — that just by an odd coincidence scores political points against the newly elected head of the Republican Party — will be punished. If, however, the leak is met with deafening silence by the DOJ, then we will have strong reason to conclude that Holder said what he needed to get confirmed, and that otherwise he will run the Department of Justice the same way he did when he was a senior official there during the Clinton Administration, when politicization was the norm.