The case for perjury on Holder
posted at 11:54 am on May 30, 2013 by Ed Morrissey
I’ll have more on Eric Holder’s political travails in a few minutes on the main page, but John Hinderaker answers the legal question that some have posed. Holder may have misled Congress through careful parsing of his denial of knowledge about targeting any reporters for prosecution under the Espionage Act of 1917, but was it perjury? John, one of my good friends and a well-respected attorney in the Twin Cities, says a strong case can be made that it was:
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 [email protected] 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.
One final point apart from John’s rather conclusive presentation. When witnesses are sworn, they pledge to “tell the truth, the whole truth, and nothing but the truth.” Holder’s statement is so far short of that standard that if it doesn’t amount to perjury, then perjury doesn’t really exist at all.