House Republicans want to investigate whether Attorney General Eric Holder lied when he said he knew of no prosecutions of the media. They’re desperate for a scalp. (More)
Squirrels don’t often fight. We usually just flick our tails in debate until someone says “Okay, you’re right.” That can escalate into chasing each other around and up and down trees, although we’re not always fighting when we do that. Sometimes it’s just for play.
But I don’t think House Republicans are playing with their investigation of whether Attorney General Eric Holder lied under oath two weeks ago when he said this:
In 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.
Whether that was a lie will probably turn on how you see the phrase “potential prosecution.” The day after Attorney General Holder’s testimony, NBC News reported that in 2009 the DOJ sought and received a search warrant for emails to and from Fox News reporter James Rosen. The affidavit submitted in the request for that search warrant read, in part:
… there is probable cause to believe that [Rosen] has committed or is committing a violation of [the Espionage Act], as an aider and abettor and/or co-conspirator, to which the materials relate.
Unlike the investigation of the Associated Press leak, Attorney General Holder did not recuse himself from the 2009 case that eventually led to charges against State Department intelligence contractor Stephen Jin-Woo Kim. Thus, the theory goes, the Attorney General knew or should have known about the Rosen search warrant … and lied when he testified that he had never been involved in and would not have approved a “potential prosecution of the press.”
It’s worth noting that James Rosen was never charged or prosecuted. Attorney General Holder’s statement came during a Q&A with Rep. Hank Johnson (D-GA), who told The Hill:
The attorney general’s statement that no journalists have been prosecuted under the Espionage Act during his tenure is accurate.
But is an affidavit alleging probable cause a “potential prosecution?” Not according to attorney Rusty Hardin, who has defended clients charged with perjury in federal court. As The Atlantic’s Phillip Bump writes:
After a brief review of Holder’s statement and the Rosen search warrant, Hardin indicated that there was not “a snowball’s chance in Hell” that Holder’s statements would be upheld as perjurious. Noting the frequency with which law enforcement agencies issue search warrants, Hardin was (colorfully) skeptical that Holder would have intentionally misled the committee on a case that didn’t result in any prosecution, even if he remembered it at all.
“It’s a ludicrous misuse of the process,” Hardin said, referring to calls for an investigation.
Of course, that won’t stop Beltway reporters from “circling the wagons,” to quote the Washington Post’s Walter Pincus:
The case should be described as a State Department contract worker who signed a non-disclosure agreement, yet is alleged to have leaked Top Secret/Special Compartmented Information (TS/SCI) in violation of criminal law. He also is alleged to have lied to the FBI.
Search for a story analyzing damage to intelligence collection caused by the leak and what will emerge are stories about the threat to the First Amendment and journalists.
Pincus provides an excellent summary of the Rosen/Kim story, which leaked that the U.S. had an intelligence source inside the North Korean government. That’s the kind of leak that can get someone killed, but that was fine with Rosen, who had another agenda, as he revealed in an email to Kim:
Let’s break some news, and expose muddle-headed policy when we see it – or force the administration’s hand to go in the right direction, if possible.
Maybe I’m wrong, but I thought the media’s role in a democratic society was to observe, investigate, and report on events … not to put lives at risk while instigating events they want to see happen. And I’m confident that no one elected or confirmed James Rosen to conduct U.S. foreign policy.
Again, Rosen was never charged with a crime. But House Republicans will insist this was a “potential prosecution” and thus Attorney General Eric Holder lied under oath. It’s not that they care about an independent media; Senate Republicans filibustered a media shield law in 2008. But forcing the Attorney General to resign would be a huge trophy for Republicans who are looking for any excuse to impeach President Obama and paint his administration with the same brush as disgraced Republican President Richard Nixon.
Good day and good nuts.