The House Judiciary Committee is investigating whether or not Attorney General Eric Holder lied under oath during his testimony to them two weeks ago, as reported by The Hill. If the committee determines that he did, Holder could face five years in prison. It very well may. He almost certainly won't.
There are four considerations that go into determining whether or not Holder lied under oath: What he said, how that might differ from the truth, what the related charge is, and how Holder has responded to the criticism.
What did Holder say under oath?
The Committee's questioning on May 15 focused on the Department of Justice's seizure of phone records from the Associated Press. The crucial exchange came while Holder was being questioned by Rep. Hank Johnson of Georgia. Johnson asked Holder if Justice could subpoena the media, and about the rules articulated about seizing that information. The answer is yes; the rules for subpoenaing the press mandate the Attorney General to expressly authorize the seizure of phone records if the media organization won't hand them over, among other things.
Johnson then continued, focusing specifically on one piece of legislation. The section in bold is the crux of the critique of Holder.
REP. JOHNSON: Well, I would argue that the Espionage Act of 1917 would authorize the prosecution of anyone who disclosed classified information. And perhaps that's another area that we may need to take action on here in this Congress.
Now, I'll note that in this Congress, we've been -- we've had a lot of bills, the most famous of which, in my mind, was the -- was the helium legislation. And we wanted to ensure that we had enough helium to keep everything moving forward here in America. But we certainly need to protect the privacy of individuals, and we need to protect the ability of the first -- of the press to engage in its First Amendment responsibilities to be free and to give us information about our government so as to keep the people informed. And I think it's a shame that we get caught up in so-called scandals and oversight of unimportant matters when we should be here addressing these real problems that things like the AP scandal illustrate for us.
I'll yield the balance of my time to you.
ATTY GEN. HOLDER: Well, I would say this. With regard to the potential prosecution of the press for the disclosure of material, that is not something that I've ever been involved in, heard of or would think would be a wise policy. In fact, my view is quite the opposite, that what I proposed during my confirmation, what the Obama administration supported during 2009 -- and I understand -- I think Senator Schumer is now introducing a bill that we are going to support as well that the press should be -- have -- should have -- there should be a shield law with regard to the press's ability to gather information and to disseminate it.
(We've discussed that shield law in the past.)
What did Holder do that seems to be in conflict?
On Thursday, NBC News reported on Holder's involvement in another prominent investigation of a media outlet. Following a 2009 leak of classified information, the Justice Department acquired a search warrant for emails from Fox News reporter James Rosen. In the warrant, the Department indicates that there is "probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate." In other words: The Department of Justice considered that there was probable cause Rosen violated the law.
As reported by the Huffington Post, Justice the next day acknowledged that Holder had been involved in the Rosen case — officially, U.S. vs. Kim, after Rosen's alleged source for the leak, Stephen Jin-Woo Kim. The department released a statement reading, in part:
The Department takes seriously the First Amendment right to freedom of the press. In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General. After extensive deliberations, and after following all applicable laws, regulations and policies, the Department sought an appropriately tailored search warrant under the Privacy Protection Act. And a federal magistrate judge made an independent finding that probable cause existed to approve the search warrant.
After the NBC report, the conservative blog Gateway Pundit called attention to the discrepancy between Holder apparently authorizing the search warrant, including a reference to possible criminal action, and the Attorney General's testimony. That night, Karl Rove raised the issue on Fox News itself. Today, it reached Capitol Hill.
What is perjury?
It's worth noting that there's a difference between lying under oath and perjury, albeit a very subtle one, as Slate outlined in 2007. Given that Holder was under oath at the time of his statement, we'll consider the statute related to perjury. (Neither Gateway Pundit nor Rove used that word.)
The statute mandates that anyone having taken an oath that he will testify or certify truly who then "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true" is guilty of the crime. (There are nuances and alternatives that aren't particularly relevant here.)
"Willfully and contrary to any such oath" is the critical language. It necessitates that the testimony must be 1) false and 2) intentionally false. A mistake doesn't count.
What is Holder saying?
So far, nothing. As reported by The Hill, Rep. Johnson has come to Holder's defense.
“The attorney general’s statement that no journalists have been prosecuted under the Espionage Act during his tenure is accurate,” he told The Hill. “My point remains that the law as written could be misused. Congress is responsible for protecting the press while giving law enforcement the tools to prosecute officials who leak classified information. I support considering amendments to the Espionage Act and passing the Free Flow of Information Act to refine this balance.”
It should be noted that the section 793(d) cited in the search warrant is indeed the Espionage Act of 1917. It should also be noted that Johnson is correct on one point: as reported by the New Yorker's Ryan Lizza, Rosen was not actually indicted for his role in the leak. This raised a side conversation over the weekend as to whether or not such threats from the Department of Justice — that is, accusing a member of the media of criminal complicity — is common practice in Justice's efforts to access legal records.
What will Holder's defense be? We reached out to several legal experts for their assessments of his case, and will provide their thoughts when we hear back. But one possible response seems fairly obvious: Holder's is likely to claim, if asked, that his statement was not willfully false.
If Holder can claim that he didn't remember the Rosen case during the House hearing — news of it didn't break until last week — he can present at least some defense on this front. He might also argue that there was no "potential prosecution" in the Rosen case; that, in other words, the Department never had any intention of prosecuting Rosen for any conspiracy charges. It's not clear if this will address the concerns of the Judiciary Committee, but it's safe to assume that Holder know some good attorneys who could put the best face on that argument.
It's impossible not to consider this (reported!) investigation by the House Judiciary Committee outside of the context of that body's long-standing antipathy to Holder. Last year, the House voted to hold Holder in contempt for failing to respond to questions about a previous investigation. Even before the committee finished any investigation, the committee's second-highest ranking Republican called on Holder to resign. There is strong motivation by some members of the House to find fault with Holder, which should certainly be considered.
If the committee determines that Holder did lie under oath, it's not entirely clear what would happen next. When Scooter Libby, an aide to Vice President Cheney, was charged with perjury in 2005, he faced a federal grand jury. If the Holder investigation gets that far, it's safe to say that the president's opponents would already be able to claim at least some victory.
Update, 5:39 p.m.: We spoke with Rusty Hardin, a Houston-based attorney with some experience in this arena: he represented Roger Clemens when the pitcher faced perjury allegations after testifying on the Hill.
Hardin was blunt. "Do we really believe seriously that the Attorney General is going to sit up there in a public hearing with the intent to obstruct justice? Really? Seriously? Give me a friggin' break." The only people who might think so, he said, were "insane partisans."
After a brief review of Holder's statement and the Rosen search warrant, Hardin indicated that there was not "a snowball's chance in Hell" that Holder's statements would be upheld as perjurious. Noting the frequency with which law enforcement agencies issue search warrants, Hardin was (colorfully) skeptical that Holder would have intentionally misled the committee on a case that didn't result in any prosecution, even if he remembered it at all.
"It's a ludicrous misuse of the process," Hardin said, referring to calls for an investigation. "I would like to see every Congressman who wants to talk like that to sit there under the lights and endure cross-examination and see how well they do. And I guarantee you: it wouldn't be worth a damn."
Update, May 29: The House Judiciary Committee today sent a letter to Holder asking that he clarify a number of issues related to the purported contradiction. It asks for responses to four questions:
How can you claim to have never “been involved” in the potential prosecution of a member of the media but you were admittedly involved in discussions regarding Mr. Rosen’s emails?
How can you claim to have never even “heard of” the potential prosecution of the press but were, at a minimum, involved in discussions regarding Mr. Rosen?
Do you agree that characterizing a member of the media as an aider/abettor or co-conspirator in a sworn search warrant affidavit constitutes a “potential prosecution of the press for the disclosure of material”?
Do you believe that the investigation of Mr. Rosen as a potential co-conspirator or aider/abettor to Mr. Kim was “wise policy”? Please explain.