Policy: Law

Examiner Editorial: Congress should not ignore Eric Holder's dubious testimony in Fox News case

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Congress,Editorial,Fox News,Eric Holder,First Amendment,Freedom of Speech,Justice Department,House Judiciary Committee,Law

Twenty-two Republican lawmakers have signed four articles of impeachment against Attorney General Eric Holder. Their action has prompted a fair amount of mirth among pundits who view it as little more than a media stunt. To be sure, the impeachment articles aren’t likely to go forward.

But on at least one of the four charges, the Republicans have a plausible case for charging that Holder committed perjury before Congress. Perjury is a serious crime under federal law, punishable by up to five years in jail. Moreover, that particular charge is exactly the kind of Nixon-esque abuse of power that ought to have journalists of all ilks steaming.

The fourth article of impeachment charges Holder with giving "false testimony under oath before Congress on May 15, 2013, about the Justice Department investigation of journalist James Rosen." In that testimony, Holder said, "With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy. In fact, my view is quite the opposite." Reporters, he added, “should not be the focus of these investigations."

What Holder didn’t say was that the Justice Department had previously launched a probe into leaks to Fox News reporter James Rosen in 2009. Justice Department officials had also asserted in an affidavit that Rosen may have been "an aider, abettor and/or co-conspirator." The claim was a ploy to gain the necessary warrant to snoop through Rosen's emails. Holder reportedly was briefed on the case and verbally approved it.

Holder’s Justice Department subsequently argued that he didn’t commit perjury. Deputy Assistant Attorney General Peter Kadzik told the House Judiciary Committee that "seeking a search warrant is part of an investigation of criminal activity, which typically comes before any final decision about prosecution. ... At no time during the pendency of this matter — before or after seeking the search warrant — have prosecutors sought approval to bring criminal charges against the reporter. The attorney general's testimony ... was accurate and consistent with these facts."

In other words, because Holder threw in the caveat about potential prosecution, it was not perjury since Rosen was not prosecuted. That is disingenuous, to say the least, because Holder must have known about the search warrant request. Knowing that fact, it is all but impossible for a reasonable person to read his May 15 congressional testimony and conclude that Holder wasn't being deliberately deceptive.

Perjury is a notoriously difficult crime to prove under the best of courtroom circumstances. Some conservative legal experts doubt that it can be proven in court except in rare cases. Even if true, however, that doesn’t mean Congress should ignore the fact that the nation’s top law enforcement officer provided testimony with only a remote connection to the truth. There is also the fact that Holder had frequently made his disdain for Congress obvious during prior testimony and his department has massively resisted congressional oversight throughout his tenure.

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