Fox News Gets Its Flawed Holder Perjury Investigation

Fox News contributors pushed flawed claims that Attorney General Eric Holder committed perjury while testifying before Congress because Holder's comments on Justice Department examinations of reporter communications records as part of leak investigations supposedly conflict with Holder signing off on a warrant seeking the communications of a Fox reporter in one such case. House Republicans are now following Fox's lead by reportedly investigating Holder's statements, which has one Fox reporter saying Holder is “gonna have to go.”

Fox Figures Suggest Holder Approving Warrant For Fox Reporter James Rosen's Communications May Prove Holder Committed Perjury

Karl Rove: Holder May Have Lied To Congress. Fox News contributor Karl Rove reacted to Holder's May 15 testimony to the House Judiciary Committee by stating: “I don't think the president was, you know, shooting straight with us, and neither was the attorney general.” Rove contrasted Holder's testimony with the news that Holder had signed off on the warrant for Rosen's emails, commenting, “I find that highly unusual and potentially involving a lie to Congress.” [Fox News, On the Record with Greta Van Susteren, 5/23/13 via Nexis]

Hosts Of The Five: Holder “On The Hook,” Will Go To Prison “I Hope.” After airing a clip of Holder's testimony, Eric Bolling said, “So how do you explain your signature on the subpoena of FOX's phone records? According to NBC, you sir, signed the document. Therefore, you, sir, must have been involved with it. And you, sir, most certainly must have heard of it.” He then asked Kimberly Guilfoyle, “If we find him in a lie, what happens?” Guilfoyle replied, “Jail, I wish. I hope. I mean, he should be held in contempt. I mean, this is a crime as far as I'm concerned, and this is a man that is the head of the Justice Department?” Later in the segment, Dana Perino said that Holder is “on the hook.” [Fox News, The Five, 5/24/13, via Nexis]

Stephen Hayes: Holder Testimony Is “Incongruent.” While discussing Holder's testimony and the Rosen warrant, Weekly Standard senior writer and Fox News contributor Stephen Hayes said: “I think everybody should feel that they are incongruent because they plainly are.” He later added, “this isn't the first time that Eric Holder has testified to Congress and said something that has turned out to be false ... I think he is in real trouble.”[Fox News, Special Report with Bret Baier, 5/24/13, via Media Matters]                                                                        

Charles Krauthammer: Holder Testimony Is Either “Case Of Perjury Or It Is Case Of Unpreparedness.” Fox News contributor Charles Krauthammer said that Holder's testimony is either a “case of perjury or it is case of unpreparedness, mistakes, not remembering, or incompetence. And this is always the case with Holder. The most benign explanation is incompetence.” [Fox News, Special Report with Bret Baier, 5/24/13, via Media Matters]

But Holder's Testimony Does Not Conflict With The Rosen Case

Holder Testified He Was Not Involved In Prosecuting Press For Disclosing Material. During a May 15 hearing of the House Judiciary Committee on the DOJ's seizure of AP communications record as part of an investigation into the leaking of classified information, Holder said that “the potential prosecution of the press for the disclosure of material” is “not something that I've ever been involved in, heard of, or would think would be a wise policy”:

HOLDER: Well, I would say this: With regard to the potential prosecution of the press for the disclosure of material, that is not something that I've ever been involved in, heard of, or would think would be a wise policy. In fact, my view is quite the opposite that, what I proposed during my confirmation, what the Obama administration supported during 2009 and I understand -- I think Senator Schumer is now introducing a bill that we are going to support, as well -- that the press should be -- should have -- there should be a shield law with regard to the press's ability to the gather information and to disseminate it.

The -- because the focus should be on those people who break their oaths and put the American people at risk, not reporters who gather this information. That should not be the focus of these investigations. [House Judiciary Committee hearing, 5/15/13, via Nexis]

Holder Approved Search Warrant For Communications Records Of Fox News' Rosen - Not His Prosecution. On May 23, NBC News reported that Holder had signed off on a warrant to obtain the emails of Fox News reporter James Rosen as part of an investigation of a source who had allegedly violated the Espionage Act by leaking classified information to Rosen. The warrant named Rosen as a possible “co-conspirator in the case”:

The Justice Department pledged Friday to review its policies relating to the seizure of information from journalists after acknowledging that a controversial search warrant for a  Fox News reporter's private emails  was approved “at the highest levels” of the Justice Department, including “discussions” with Attorney General  Eric Holder.

The statement, confirming an NBC News account of Holder's role, defended the secret warrant to obtain reporter James Rosen's emails as a legitimate step to obtain evidence as part of an investigation of Stephen Kim. A former intelligence analyst, Kim has since been indicted under the Espionage Act for leaking classified information to Rosen about North Korea. He has denied the charges.

In a 2010 affidavit in support of the search warrant, an FBI agent named Rosen as a possible “co-conspirator” in the case because he “asked, solicited and encouraged” Kim to give him information.

“After extensive deliberations, and after following all applicable laws, regulations and policies, the Department sought an appropriately tailored search warrant under the Privacy Protection Act,” said a department official, referring to a federal law that governs under what circumstances information can be subpoenaed from the news media. “And a federal magistrate judge made an independent finding that probable cause existed to approve the search warrant.” [, 5/23/13]

Rosen Was Not And Will Not Actually Be Charged, No Evidence DOJ Seriously Considered Doing So. Holder testified to Congress that he had never been involved in “potential prosecution of the press,” and no prosecutions have occurred in the case of Rosen or any other reporter. On May 20, Huffington Post reported:

Attorney General Eric Holder did not recuse himself from the 2010 search warrant for emails from a Fox News reporter's personal account, a Justice Department official said Monday evening.

DOJ regulations require the attorney general to approve charges against a journalist or the search warrant for journalist phone records, but that regulation does not appear to apply to journalist emails. The DOJ official, who spoke on the condition of anonymity, said no charges against Rosen were anticipated. Language used by an FBI agent requesting a search warrant made Rosen's reporting activities out to be part of a criminal conspiracy.

“To our knowledge, the Department of Justice has never prosecuted a reporter,” the Justice Department official told The Huffington Post. “No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official. At this time, we do not anticipate bringing any additional charges in this matter.” [Huffington Post, 5/20/13, emphasis added]

Warrant Shows DOJ Was Concerned With Solicitation Of Classified Information, Not Its Publication. Even if one asserts that the warrant indicates that Holder was involved in potential prosecution of the press because that document represents DOJ stating that they could press such charges, Holder's statements are not contradictory. While Holder testified to Congress that he has never been in “the potential prosecution of the press for the disclosure of material,” the warrant suggests the Justice Department was concerned with Rosen's role in soliciting classified information, not its disclosure. From Wired:

According to the affidavit (.pdf), FBI Agent Reginald Reyes told the judge there was probable cause to believe that Rosen had violated the Espionage Act by serving “as an aider, abettor and/or co-conspirator” in the leak. The Espionage Act is the same law that former Army intelligence analyst Bradley Manning is accused of violating when he leaked information to the secret-spilling site WikiLeaks.

To support his assertion, Reyes quoted an email exchange between Kim and Rosen, in which Rosen told him that he was interested in “breaking news ahead of my competitors” and had a particular interest in “what intelligence is picking up.” He also told Kim, “I'd love to see some internal State Department analyses.”

The suggestion was that Rosen broke the law by soliciting information from Kim, something that all journalists do routinely with sources.

Nonetheless, the federal judge found there was probable cause to believe that Rosen was a co-conspirator and approved the warrant. [Wired, 5/24/13, emphasis added]

House Republicans Take Fox's Lead And Are Reportedly Investigating Holder's Statements

Fox News Scoop: House Judiciary Committee “Further Investigating” Whether Holder Perjured Himself. reported on May 28:

A House committee is looking into whether Attorney General Eric Holder misled Congress when he testified two weeks ago about the department's pursuit of journalists' personal records, an aide confirmed to on Tuesday. 

Appearing before the House Judiciary Committee on May 15, Holder insisted that “the potential prosecution of the press for the disclosure of material” is not something he was involved in or knew about. 

But days later, it emerged that the Justice Department obtained access to the emails of Fox News reporter James Rosen -- after filing an affidavit that accused him of being a likely criminal “co-conspirator” in the leak of sensitive material regarding North Korea. 

Rosen was never charged, and never prosecuted. But he was effectively accused of violating the federal Espionage Act. 

Asked about potential problems with Holder's testimony, a House Judiciary Committee aide told that the committee is “further investigating this matter.” The committee later clarified they are “looking into” Holder's testimony. [, 5/28/13]

Fox Reporter Responds To Investigation News By Saying Holder Must Resign

Fox News' Stirewalt On Holder: “He's Gonna Have To Go.” Reporting on the House's decision to investigate Holder's statements, anchor Megyn Kelly said, “There's a real question about whether Holder gets out of this by saying, 'it wasn't me, I didn't know.' You just said you take these things very seriously!” Fox News digital politics editor Chris Stirewalt replied, “He's gonna have to go, he probably should have gone during that time in between the re-election and the inauguration, he was already dragging a lot around behind him.” [Fox News, America Live, 5/28/13]