Right-wing media are continuing to claim Attorney General Eric Holder lied under oath because of a a search warrant request that included Fox News reporter James Rosen, a myopic smear conservative legal experts are warning is baseless.
Picking up where Fox News and Washington Post blogger Jennifer Rubin left off, The Wall Street Journal is repeating Republican politicians' attack that either Holder perjured himself in a May 15 statement before Congress as to whether journalists were improperly surveilled or a 2010 affidavit in a search warrant request for the criminal investigation of a State Department employee's leak of classified information was “false.” From a June 2 WSJ editorial:
In its 2010 affidavit seeking a warrant to search the email of Fox News reporter James Rosen, Justice said there was “probable cause” to believe Mr. Rosen “has committed or is committing a violation” of the Espionage Act “as an aider and abettor and/or co-conspirator.” That sounds like a serious criminal charge, and Mr. Holder personally approved the warrant request.
Yet now, amid a media uproar, Mr. Holder's spinners are saying Justice never intended to prosecute Mr. Rosen. But if that's true, then the Department's warrant affidavit contained false claims about Mr. Rosen. Prosecutorial dishonesty is more common than it should be, but Justice officials don't usually cop to it as a way of defending an Attorney General. Should judges assume that the “probable cause” and “co-conspirator” claims in Justice's next warrant request are also a ruse?
Right-wing media continue to push the incorrect and narrow claim that Holder perjured himself by testifying that "[i]n regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy," although Rosen had been previously named as a possible “co-conspirator” for soliciting classified information from a government official who was allegedly violating the Espionage Act.
Beyond the credibility problems of this selective outrage, conservative and libertarian legal experts are now raising another issue that this scandal-mongering is missing: right-wing media's cries of perjury are completely unsupportable.
Jonathan H. Adler, law professor at the Case Western Reserve University School of Law and “no fan” of the current administration's judgment, cautioned that "it's not even close" as to whether there was a "contradiction between Holder's statement and his reported actions, let alone a basis for accusing him of lying under oath." From a May 29 analysis on the conservative/libertarian legal blog, The Volokh Conspiracy:
Now I'm no fan of the Attorney General, and have been critical of the Administration's decision to target journalists in its leak investigations, but if this is all there is, I don't see it. Did Holder suggest he had less involvement in the Rosen case than he, in fact, had? Sure. Did he say anything that was untrue or that would justify charging him with lying under oath? No. Based on what I've seen reported, it's not even close.
The core of the claim is that the Attorney General's testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.” But there's no contradiction between Holder's statement and his reported actions, let alone a basis for accusing him of lying under oath. Holder signed a document stating that the government believed there was probable cause to believe Rosen had committed a crime, but there's no evidence that Holder (or anyone else) in the Administration actually considered taking the next step of indicting (let alone prosecuting) Rosen for his journalistic endeavors. Prosecutors don't prosecute everyone they believe may have violated the law; they don't even consider prosecuting everyone they investigate. Some “unindicted co-conspirators” are never at risk of prosecution.
If, as Holder testified, it would not be “wise policy” to prosecute journalists for reporting on leaked information, this would not preclude the Department from investigating or conducting surveillance on journalists so as to prosecute government leakers. Indeed, asserting the existence of probable cause in order to obtain information to facilitate the prosecution of a government leaker is wholly consistent with a policy of aggressively pursuing government leakers while not indicting or prosecuting journalists even if one believes their solicitation of classified material is against the law.
George Washington University Law School professor and renowned libertarian computer crime expert Orin Kerr was even more blunt. Writing in The Volokh Conspiracy, Kerr once again warned that the perjury attacks aimed at Holder are "so weak it is bordering on silly." From his May 29 post:
Jonathan [Adler] explains why he is unpersuaded that Holder lied. I would make the same point more strongly. If that's really the case for Holder lying under oath, it's not just weak. It's so weak it is bordering on silly.
Holder was making a point about prosecutorial discretion. For any prosecutor, there is a fundamental distinction between asking whether there is probable cause that someone committed a crime and asking whether that person should be prosecuted for the alleged crime. They are two very different issues. The first issue is whether the conduct was likely prohibited by the laws Congress enacted, as interpreted by the Judiciary, as a matter of law. The second issue is whether it is a wise use of Executive resources to bring such a case as a matter of prosecutorial discretion.
Holder's testimony was about the second issue, prosecutorial discretion. Rep. Johnson had said that the law was problematic because it made reporters criminals. Holder responded that he would not exercise prosecutorial discretion that way, and that he favored a shield law codifying that approach to prosecutorial discretion.
On the other hand, the statement in the Rosen warrant affidavit was about a different question. It was a statement about existing criminal law, not the Executive's discretion. It offered the view that there was probable cause to believe that Rosen had violated the law, but it did not say that Rosen was a target of the investigation. In short, the two statements were about two different things: The affidavit was about a view of the criminal law Congress enacted, and the testimony was about an approach to Executive-branch prosecutorial discretion. There is nothing at all inconsistent between them.
Nevertheless, despite this debunking, Republican officials and right-wing media are refusing to abandon this discredited perjury accusation, keeping it alive at the expense of the real conversation about the vital importance of press freedom in national security investigations. Hopefully, more mainstream reporting on these attacks will note that legal experts across the political spectrum are getting fed up with the bogus perjury claim. There's an important discussion to be had about civil liberties and the expansion of government surveillance powers, but right-wing media are completely abandoning it to advance a Holder smear.