Last week, I argued that Eric Holder’s submission to a court suggested that Fox News’ James Rosen was a flight risk. This representation — coupled with the statement that Rosen was “an aider, abettor and/or co-conspirator” in illegal obtaining, national security materials from a government official also under investigation — led me to conclude that Holder lied to Congress when he testified that he has never been “involved in” “potential prosecution of the press for the disclosure of material.”
However, the estimable Eugene Volokh contends that “it’s [not] quite right to say that the [Justice Department] affidavit labeled Rosen a flight risk.” Instead, says Professor Volokh, DOJ “simply quoted the statutory standard, with its five alternative bases for nondisclosure, without committing the government to any one particular prong of the justification.”
Professor Volokh has advanced the analysis, but I don’t think he has it quite right. The statutory standard he cites is 18 U.S.C. 2705(b). It’s five bases are:
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
And here is the statement in the DOJ affidavit that Volokh says “quoted the statutory standard”:
Because this investigation is continuing and disclosure of some of the details of this affidavit may compromise subsequent investigative measures to be taken in this case, may cause subjects to flee, may cause individuals to destroy evidence and/or may otherwise jeopardize this investigation, I respectfully request that this affidavit, and associated materials seeking this search warrant, be sealed until further order of this Court.
Notice that the affidavit does not fully track 18 U.S.C. 2705(b). It doesn’t assert that the subjects (Rosen and his source) pose possible endangerment to anyone’s life or physical safety or that they might intimidate potential witnesses. Thus, to the extent that DOJ used 18 U.S.C. 2705(b), it selected among its various justification, using some and discarding others.
To me this indicates that DOJ, upon analysis, concluded that the subjects posed a risk of flight and/or of causing the destruction of evidence. Or at least this is what DOJ wanted the court to believe it had concluded.
The belief that Rosen might flee and/or cause the destruction of evidence strikes me as inconsistent with the belief that there was no potential for Rosen’s prosecution. Thus, I still think that Holder lied to Congress.