Eric Holder clinches the case for his resignation or removal

Eric Holder’s interview with Pete Williams of NBC News is, as John says, a classic. It seems to me that Holder’s statements during the interview nail down the case that he lied to Congress or to a court.

According to NBC’s account of the interview [note that NBC’s written account does not appear to track word-for-word the video of the interview NBC posted along with its account], Holder said:

I don’t like [using the term “co-conspirator” to describe reporters] because it means that me as a government official, and who has great respect for the press, is in essence saying that the reporter who is doing his or her job, and doing that very important job, is somehow branded a criminal.

So Holder admits that he branded Fox News’ James Rosen a criminal.

I understand Orin Kerr’s argument that deeming someone a criminal isn’t the same thing as deciding to prosecute that individual. But I think it’s dishonest to say (as Holder, in effect, said to Congress) that there was no potential for the prosecution of someone the Department of Justice had branded a criminal and whom it was investigating.

I agree with Bill Otis that “the outcome of an investigation conducted with even minimal integrity depends, not on pre-existing personal or political inclinations, but on what the evidence turns up.” Thus, “every serious investigation. . .holds in it. . .a potential prosecution” of those being investigated.

Just as damning, if not more so, is Holder’s concession that he “played” the court that granted DOJ’s application regarding Rosen. According to NBC’s account of the interview, “Holder explained that the [co-conspirator] phrasing was necessary in order to get a search warrant.”

The posted video of the interview bears this out. Holder says that various laws and guidelines “force” the government to call reporters criminals. But because reporters aren’t really criminals when they are just doing their job, the laws and guidelines need to be changed.

That may be. Nonetheless, Holder has admitted that he and his agents told a court that Rosen was a “co-conspirator” not because he believed Rosen was a criminal, but because DOJ needed to use the language of criminality to obtain the desired warrant.

As Bill Otis says, “if mere expediency [has] replaced basic truth-telling as the standard for what the Attorney General tells the court” then “there is more, not less, reason for [Holder] to resign.”

One last point. To defend Holder’s veracity requires contradictory views of the role of subjectivity in evaluating the truth of statements. It may be possible to defend Holder’s statement to Congress that he was not involved in a potential prosecution of Rosen because, subjectively, he had no predisposition actually to prosecute Rosen.

But giving the same prominence to alleged subjective feelings undermines the veracity of Holder’s application to the court. After all, Holder has now admitted that, subjectively, he did not consider Rosen a co-conspirator in criminal activity.

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