In his testimony before the House Judiciary Committee, Eric Holder was asked whether the Justice Department could prosecute reporters under the Espionage Act of 1917. This was his answer:
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.
Later, the Department of Justice disclosed that Holder had personally approved the application for the search warrant for James Rosen’s Gmail account:
[T]he Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General. After extensive deliberations, and after following all applicable laws, regulations and policies, the Department sought an appropriately tailored search warrant under the Privacy Protection Act.
Paul argued this morning that on its face, a perjury charge against Holder seems strong. How could the Attorney General have said that he had never “been involved in,” or even “heard of” the “potential prosecution of the press,” in view of the Rosen search warrant? My own first instinct was to be skeptical of any issue of perjury, on the theory that it would have made sense to search Rosen’s emails even if the only target of the criminal investigation was Kim.
So to test that defense, I went back to the Affidavit by FBI agent Reginald Reyes to see exactly what the Obama administration told the judge (if anything) about Rosen’s status as a potential defendant.
As has been widely reported, the affidavit says repeatedly that there is probable cause to believe that Rosen is guilty of a crime, and that his email account will provide evidence of a crime, as well as “fruits of crime, or other items illegally possessed.” But the affidavit goes even beyond that. It specifically says that the FBI is looking for evidence of both Kim’s and Rosen’s guilt:
Mr. Kim’s missing responses to the Reporter’s emails would materially assist the FBI’s investigation as they could be expected to establish further the fact of the disclosures, their content, and Mr. Kim’s and the Reporter’s intent in making them, and could be expected to constitute direct evidence of their guilt or innocence.
Emphasis added. But the real clincher is Paragraph 45, which states in part:
Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by warrant.
Emphasis added. Paragraph 46 sums up:
Based on the above, there is probable cause to believe that the Reporter (along with Mr. Kim) has committed a violation of 18 U.S.C. § 793(d) either as Mr. Kim’s co-conspirator and/or aider and abettor, and that evidence of that crime is likely contained within the firstname.lastname@example.org account.
So the issue is rather squarely posed: Holder testified that he had never “been involved in” or even “heard of” any “potential prosecution of the press for the disclosure of material.” And yet, he participated in “extensive deliberations,” “discussed” and approved of the filing of an application for a search warrant that specifically represented to the court that a reporter has “potential criminal liability in this matter.” It is hard to imagine a more direct contradiction.
Paul quoted Richard Nixon’s statement that perjury is “an awful hard rap to prove,” and because perjury is so dependent on the defendant’s state of mind, Nixon was right. Still, in this instance there appears to be a sound basis to investigate whether Holder should be criminally prosecuted.