It still looks like Holder lied to Congress

Two distinguished law professors and star bloggers — Jonathan Adler and Orin Kerr — have, in separate posts, argued that there is no case for the proposition that Eric Holder lied when he testified to Congress that he has never been “involved in” “potential prosecution of the press for the disclosure of material.” Many, including me and John, have suggested that Holder’s testimony doesn’t square with statements in an affidavit, filed in court as an attachment to an application Holder signed, stating that there is probable cause to believe that Fox News correspondent James Rosen had violated the law.

Prof. Kerr goes so far as to call the case that Holder lied, “not just weak [but bordering on silly.” Kerr contends that when Holder gave his testimony to Congress, he was simply making a statement about prosecutorial discretion. In Kerr’s account, Holder was telling Congress that, although in certain situations probable cause may exist to believe that a reporter such as Rosen committed a crime, Holder believes that the government should exercise its discretion and decline to prosecute such reporters.

In the abstract, Kerr has come up with a plausible construction of Holder’s testimony under which no lie has been told. But by examining specific representations in DOJ’s submission to the court, Bill Otis casts serious doubt on Kerr’s construction.

First, Bill notes that the affidavit to the court asked that it, and Holder’s accompanying application, be sealed because, if they became public, it “may cause [the] subjects to flee.” Why would Rosen think about fleeing other than to avoid prosecution?

I suppose that Rosen’s (alleged) fear of prosecution might be baseless — he might think that the government intended to prosecute him even though it did not. But the affidavit also expressed the view that Rosen had illicitly obtained, or at the minimum was “an aider, abettor and/or co-conspirator” in obtaining, national security materials from a government official also under investigation.

Thus, Bill concludes:

When an officer of the Department of Justice tells a court that a search warrant target probably either committed, or aided the commission of, a very serious federal felony, and that extraordinary means are required forthwith to investigate the target’s activities in that he is a risk to flee, the idea that the officer is not asserting the basis of a “potential prosecution” is. . .bordering on silly. It can only be defended by re-defining, or more precisely by defining out of existence, the word “potential.” …

Whether there is a potential prosecution does not depend on Holder’s state of mind, or the state of mind of anyone currently in power at DOJ; the notion that psychology is everything is, while unfortunately widespread, complete baloney. When the Department goes on record with a court as being of the view Mr. X is at the minimum an aider or abettor or co-conspirator in a federal felony, and must immediately be investigated through extraordinary means because of, among other possible reasons, the risk that he’ll flee, then it is nothing more than blinking reality to say that there is no potential prosecution of Mr. X.

I agree. And remember John’s point that the affidavit also refers to Rosen’s “own potential criminal liability in this matter.”

Although Kerr’s “innocent construction” is probably sufficient to prevent a conviction for perjury — a hard rap to prove, as Richard Nixon famously said — it is not a persuasive defense of the honesty of Holder’s representation to the court.

And not just because Holder failed to tell Congress the whole truth, as Adler concedes. But also because it appears that Holder lied by telling Congress he was never involved in, and never heard of, the potential prosecution of the press for the disclosure of material.

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