That’s the question asked by Katie Pavlich and Jim Hoft after the revelation that Attorney General Eric Holder personally approved the application for a warrant on Fox News’ James Rosen as a potential co-conspirator in espionage. Last week, under relatively friendly questioning from Rep. Hank Johnson (D-GA) about the Department of Justice seizure of Associated Press phone records, Johnson asked about the potential to prosecute reporters under the Espionage Act of 1917. “You’ve got a long way to go to try to prosecute the press for publication of material,” Holder responded. Later, though, he returned to the topic unbidden, emphasis mine (at the 5-minute mark):
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.
As it turns out, Holder not only heard of it, he personally approved it. The warrant in the Rosen case specified that he was considered a potential suspect in the leak of classified material, the reason that the DoJ didn’t bother to follow the existing Watergate-era statute in coordinating the records request with Fox News. And note that Holder’s testimony in this case wasn’t produced by some sophisticated perjury trap sprung by a Republican, but as a freely-offered representation to no particular question during the question period of a Democrat.
There is no other way to view this except as a lie. Even if Holder wasn’t under oath, that would constitute a felony punishable by up to five years in prison. It certainly should produce at least a resignation, and almost assuredly would require the appointment of a special prosecutor, especially since the next person down in the organization, James Cole, is suspected of doing the same thing with reporters.
Update: Looks like a wide bipartisan consensus has formed for Holder’s resignation. The Huffington Post wants him gone, as does Esquire. A resignation at this point is probably not enough, either, if the House decides that further action is required after this false representation on a key issue.
Update: According to Guy Benson and Gabriel Malor, Holder was under oath:
@EdMorrissey Yes he was.
— Guy Benson (@guypbenson) May 24, 2013
— Gabriel Malor (@gabrielmalor) May 24, 2013
— Guy Benson (@guypbenson) May 24, 2013
I couldn’t recall this when I wrote the post, even though I watched most of that hearing. That, of course, puts a charge of perjury on the table.
Update: Jennifer Rubin independently reached the same conclusion, and notes the specificity in the warrant application of Rosen’s status as a suspect:
First, the affidavit (paragraph 45) asserts that DOJ exhausted all means available to get the material from Rosen’s e-mails and phone, and “because of [Rosen’s] own potential criminal liability in this matter,” asking for the documents voluntarily would compromise the integrity of the investigation. Moreover, the affidavit asserts that the “targets” of the investigation (including Rosen) were a risk to “mask their identity and activity, flee or otherwise obstruct this investigation.” It is highly questionable whether Holder believed any of that to be true. (Really, he imagined a Fox News reporter would flee the country? He thought Rosen would don a disguise?) Was the affidavit a sort of ruse to get Rosen’s records (or later to pressure his cooperation)? Did Holder intentionally mislead a judge when he signed off on the affidavit? That is worth exploring.
Indeed, along with the question of perjury in Congressional testimony.
Update: The Right Sphere‘s RB makes a good point:
I’m sure Holder and his allies will say that they never intended to prosecute Rosen, but that’s 1) not the point and 2) even worse. If that’s their defense, they knowingly lied to the judge who would, hopefully, reject the request if they admitted it was just a fishing expedition for information.
They’re stuck. Either he (by signing the request for the records) lied to the judge or Holder lied directly to Congress.
I hadn’t thought about that, but RB is right. Either Holder misrepresented the DoJ in a court filing, or he lied to Congress, and arguably he did both. Either one should get Holder disbarred, at the least.