On 15 May, Attorney General Eric Holder testified under oath before the House Oversight and Government Reform Committee that
With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.
Yet he had already been consulted concerning, and subsequently approved, a search warrant application to search the personal emails of an individual reporter (James Rosen of Fox News), a warrant that said in part
Because of the Reporter’s [Rosen’s] own potential criminal liability in this matter….
A three-page Department of Justice letter to the Chairmen of the House Judiciary Committee and that committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations is cynically unresponsive (quite aside from the fact that while the chairmen had addressed their concern on the “disconnect” to Holder, the latter didn’t deign respond, instead having an underling do so).
The letter devoted two and a half pages first to piously proclaiming Holder’s reverence for the role of a free press in American society and then to outlining the way getting warrants to search members of the press is supposed to work. The underling then proclaimed that there was and is no disconnect between the facts of Holder’s testimony and the fact of the warrant’s accusation. That’s it—just a bald, unsubstantiated pronouncement. The underling offered not the least shred of evidence to support that claim. The underling did, though, include this shocker in his penultimate paragraph:
At no time during the pendency of this matter—before or after seeking the search warrant—have prosecutors sought approval to bring criminal charges against the reporter.
DoJ and writers of the Left have made much of that word “potential,” saying that there was no prosecution after the fact, as though this non sequitur eliminates any potential.
Yet Holder did not testify “with regard to prosecution;” he testified explicitly to its potential. And the warrant he’d already approved at the time of his testimony spoke explicitly about that potential.
It’s clear that Holder still has some tap dancingexplaining to do in order to reconcile his sworn testimony with the content of the search warrant he’d approved prior to his sworn testimony.
But there’re an additional couple of questions in my mind that goes to Holder’s fitness as the US’ chief prosecutor. What kind of prosecutor accuses a man of criminal activity—that warrant—in order to obtain a search warrant while, at the time of the accusation, having no intent of prosecuting that man should the warrant produce the relevant evidence?
Did Holder lie to the judge in his warrant—he didn’t consider the reporter to be “potentially” criminally liable at the time? Related to that, is it normal DoJ practice to deliberately mislead a judge with such ruses in order to get a warrant to conduct a search? And: if the warrant is unobtainable without such shenanigans, how legitimate can the warrant be?
The DoJ letter can be read here. The Rosen search warrant can be read here.