Fox News distorted the testimony of Attorney General Eric Holder to claim that he committed perjury before the House Judiciary Committee last week.
It was recently revealed that the Justice Department obtained a search warrant for the communications records of Fox News reporter James Rosen in an effort to track down a leaker who provided him with classified information on North Korea in 2009. On May 15, during a hearing of the House Judiciary Committee, Rep. Hank Johnson (D-GA) asked Holder about the warrant and the potential for prosecuting journalists accused of publishing classified information that they obtained from government sources. Holder responded (emphasis added):
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.
On May 24, the Justice Department released a statement clarifying Holder's involvement in the approval process for the warrants in question (emphasis added):
“The Department takes seriously the First Amendment right to freedom of the press. 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. 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. And a federal magistrate judge made an independent finding that probable cause existed to approve the search warrant.”
Fox News' Special Report on May 24 argued that these statements were inconsistent and concluded that the Attorney General had previously lied to the Judiciary Committee and thus had committed perjury. Host Shannon Bream began the show stating, “It's his story, but he's not sticking to it,” claiming that Holder has “chang[ed] his tune” on his involvement in the scrutiny of journalists. Contributor Steve Hayes claimed that Holder's two statements were “incongruent” and Charles Krauthammer speculated that it may be “a case of perjury.”
In fact, the statements are not “incongruent” whatsoever. Holder's comments to the Judiciary referred to the possibility of prosecuting journalists for publishing classified information, but that is not the crime the Justice Department's warrant accused Rosen of committing. DOJ investigators were concerned with Rosen's solicitation of classified information, not any subsequent publication of it. Wired explained (emphasis added):
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.
In other words, Holder's on-the-record denial of involvement in any prosecution of news organizations for publishing classified information in no way conflicts with any knowledge he may have possessed or action the DOJ may have taken against reporters for soliciting said information. Fox's perjury accusations simply don't align with the facts.