If That’s the Case for Holder Lying Under Oath, It’s Not Just Weak — It’s Bordering on Silly

My co-blogger Jonathan Adler points out the story reporting that the House Judiciary Committee is investigating whether Eric Holder lied under oath:

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.

The panel is investigating whether NBC’s report contradicts Holder’s claim that he had not looked into or been involved with a possible prosecution of the press in a leaks case.

In his post below, Jonathan 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.

First, let’s look at what Holder said — not only the one sentence, but the question he was asked and the full answer he gave. During the Q&A part of the hearing, Rep. Hank Johnson (D-GA4) made a meandering statement in which he said (among other things) that federal law was problematic because it appeared to make it a crime for reporters to report national security leaks. Here’s the relevant part of Johnson’s comment:

We have an old law that would allow for prosecution of anyone who published the classified information, isn’t that correct? . . . .

I would argue that the Espionage Act of 1917 would authorize the prosecution of anyone who disclosed classified information. And perhaps that’s another area that we may need to take action on here in this Congress. . . . We need to protect the ability of the press to engage in its First Amendment responsibilities to be free and to give us information about our government so as to keep the people informed.

Johnson then yielded the remainder of his time to Holder for comment. Holder replied with the following, starting here at about 5:20:

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

As the full answer makes clear, 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.

It is true that in some criminal cases, a warrant affidavit might mention the possibly criminal conduct of a third party because the government considered the person a possible target. In those cases, the mention of the third party’s involvement might be some kind of signal that the government was considering a criminal case against that third party. Does that mean that the statement in the affidavit shows that Holder thought that Rosen might be a target here, at least assuming that Holder was privy to every discussion at DOJ about Rosen?

The answer is “no,” for the reason I detailed last week. As I explained there, this particular affidavit was unusual because it had to comply with a federal privacy statute known as the Privacy Protection Act (PPA). The PPA prohibits the government from conducting a search or seizure of a reporter’s property unless there is probable cause that the reporter was involved in the crime. As it applies to investigations of national security leaks, the PPA requires the government to make the case that there was probable cause Rosen was involved in the offense before it can obtain a warrant.

Importantly, the PPA doesn’t require the government to actually be considering prosecuting the reporter. It only requires the government to establish probable cause that the reporter’s conduct was prohibited by Congress’s law. So, again, there is nothing inconsistent between Holder concluding that there was probable cause to believe Rosen committed a crime and Holder testifying that he has never “been involved in, heard of, or would think would be wise policy” to bring a criminal prosecution against a reporter.

In the comment threads to Jonathan’s post, some commenters argued that you can read Holder’s testimony as saying that there was not a “potential” for prosecution against Rosen. If the affidavit stated the basis for probable cause that Rosen committed a crime, they argue, isn’t there “a potential” that Rosen could be prosecuted, at least in a certain sense, thus making a possible case for perjury? This argument misrepresents what Holder said. As the full version of Holder’s answer makes clear, Holder was making a comment about prosecutorial discretion. He was saying that even if the law technically makes it a crime for reporters to report the news, he does not think it is wise for the Executive to bring such prosecutions. I think it’s hard to read that as testifying that there has never been probable cause to believe a reporter has committed a crime.