Did Eric Holder Lie to Congress?

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“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,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

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.  So whether or not one agrees with the Justice Department’s current policies (and I do not), I see no basis for accusing the Attorney General of lying to Congress on this matter.

UPDATE: Bill Otis offers a different view, concluding Holder “is in big trouble.”  I remain skeptical because perjury is quite difficult to prove. We can all agree that Holder would have been more forthright had he acknowledged that he had approved seeking a warrant to seize Rosen’s records, etc., but saying that Holder gave an incomplete or misleading answer is quite not the same thing as saying that he lied under oath.