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The Bordering on Silly Defense of Eric Holder, Cont'd.

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I have taken the position that Eric Holder lied when he insisted under oath that he was not involved in a "potential prosecution" of Fox News reporter James Rosen.  I have also maintained that Prof. Orin Kerr's defense of Holder on the Volokh Conspiracy doesn't hold up.  (Prof. Volokh himself has chimed in to agree with Orin).

I am happy to report that an unexpected source has now given support to my view, that source being Eric Holder.


Mr. Holder gave an interview to Pete Williams of NBC.  The network reports:

As for using the term "co-conspirator" in describing Rosen's role in a leak investigation, Holder explained that the phrasing was necessary in order to get a search warrant.

"I don't like that, because it means that me as a government official, and who has great respect for the press, is in essence saying that the reporter who is doing his or her job, and doing that very important job, is somehow branded a criminal," he said. "And I'm just not comfortable with that. And we're going to change it."

So he now admits, to use his words, that he effectively "branded [Rosen] a criminal." OK, quick now, when a prosecutor brands Mr. X a criminal, is there a "potential prosecution" of Mr. X?

I could stop there, but I won't, because it gets worse. One might think that the Attorney General of the United States would describe the target of a sought search warrant as a co-conspirator in a federal felony because  --  ready now?  --  he actually is a co-conspirator in a federal felony, rather than tossing it in because it's, ya know, "necessary" to get the court to go along with the intrusion the government wants to undertake.

Good grief.  Has mere expediency replaced basic truth-telling as the standard for what the Attorney General tells the court?  If so, there is more, not less, reason for him to resign.  Did Holder also change the instructions to his line prosecutors to read:  "When seeking a search warrant from a judge, state whatever boilerplate is necessary to get the warrant.  Whether you actually believe it is, well, hey, look............"

But perhaps the AG just put his words in the interview "inartfully," as they are wont to say in Washington these days, and told the court that Rosen was a probable co-conspirator because it is what he truly believed.

Unfortunately for Mr. Holder, that's exactly what seals the case against him.  If he believed what he told the court  -- that, at the time he asked for the warrant, he had probable cause to think that Rosen had committed and/or was committing a serious federal crime  --  then he could not possibly have been telling the truth when he testified to Congress that his application for the warrant did not involve Rosen's "potential prosecution."

It's the whole point of an investigation to determine whether or not a prosecution is warranted.  While the investigation is on-going, by definition the government doesn't know whether its targets will or will not be prosecuted.  The outcome of an investigation conducted with even minimal integrity depends, not on pre-existing personal or political inclinations, but on what the evidence turns up.  Every serious investigation  --  and this one was as serious as it gets  --  holds in it, at the minimum, a potential prosecution.  To deny this cannot be anything but false.

The Attorney General lied either in his application to the court, or in his Congressional testimony.  One way or the other, he should leave.

P.S.  I might add that, years ago while I was a federal prosecutor, I met Holder.  I have also watched his body language, inflection and affect during his testimony. He's likable in much the same way that Obama seems to be, and I don't think he's a bad person or a dishonest man at his core.  (This distinguishes him from another candidate Obama is said to have considered for his position, former Sen. John Edwards).

My overall impression is that Holder is a decently capable man who's not up to a very demanding job.  I had this same impression when he was Deputy Attorney General in the 1990's.  Like many people who are in a bit over their heads, the shortcomings eventually surface, and that's what happened in the leak investigation (as Holder seems to acknowledge, in a roundabout way, in the NBC interview).

When this happens, the natural human tendency  --  when the spotlight gets turned on your failings and blunders  --  is to fudge it.  That, perhaps, is the most realistic way to look at Holder's Congressional testimony.  Unfortunately, the cold-light-of-morning word for "fudging" is "lying."  When you hold the awesome power that resides in the Attorney General's office, you have to be better than that.  In that critical job, with so much of the law's integrity and public repute on the line, succumbing to the natural human tendency to CYA is not acceptable.  It is, to the contrary, dangerous. 

Eric Holder could be a fully adequate employee in a variety of other jobs.  Just not in the one he has.  I hear Jim Comey is available.

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