In a post here, I directly implied that Eric Holder committed perjury in his May 15 Congressional testimony, and would wind up "in big trouble" because of it.
On the invaluable Volokh Conspiracy, two very bright legal minds, Orin Kerr and Jonathan Adler, take issue with me. Prof. Adler does so explicitly; Prof Kerr does so implicitly, saying that that the case that Holder perjured himself is weak "bordering on silly."
Pooh-poohing the rampant dishonesty and dissembling of this Administration is not a habit with the libertarian-leaning Conspiracy, so I have reconsidered my post. I now think Holder is in even bigger trouble than I did initially.
I am more convinced today than before because of one additional fact about the search warrant application Holder signed, a fact I had overlooked but that seems damning. The fact is that the affidavit attached to the application Holder submitted makes reference to the targeted reporter, James Rosen of Fox News, as a risk to flee.
Risk to flee from what?
In my more than 20 years in the Department of Justice and the United States Attorney's Office, not one time did I see a subject referred to as a risk to flee other than to denote a person who might flee to avoid prosecution. Not one time.
Prof. Adler's, and even more Prof. Kerr's, exculpations of Holder proceed from a discussion (and in Kerr's case, a very long discussion) of the "context" of Holder's statement. It is worth recalling, however, exactly what Holder told Congress. It was this (emphasis added):
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.
This struck me as more than odd, since Holder said in the application that Rosen had illicitly obtained, or at the minimum was "an aider, abettor and/or co-conspirator" in obtaining, national security materials from a government official also under investigation.
When an officer of the Department of Justice tells a court that a search warrant target probably either committed, or aided the commission of, a very serious federal felony, and that extraordinary means are required forthwith to investigate the target's activities in that he is a risk to flee, the idea that the officer is not asserting the basis of a "potential prosecution" is -- how shall I say this? -- bordering on silly. It can only be defended by re-defining, or more precisely by defining out of existence, the word "potential."
Prof. Kerr's defense of Holder (here) relies largely on "context." Long and only loosely related discussions of context are S.O.P. in defense of perjury, because they are designed to get the audience (typically, although not here, the jury) to forget about text. But the specific text -- that is, what the speaker (or author) actually said (or wrote) -- is the subject matter.
Thus, for example, it would make no difference if, in the context of a discussion of The Meaning of Life, the speaker says (not intending irony or humor, as Holder certainly did not), "The sun rises in the west." His statement is false irrespective of its context.
Prof. Kerr also relies on the notion that Holder didn't and doesn't intend to prosecute Rosen, and, more broadly, that Holder was addressing his overall comments to prosecutorial discretion, which Holder made clear ought not be used against members of the press, certainly not in circumstances like those present here.
All that is as true as it is irrelevant. Whether Holder, or anyone in the present DOJ intends to prosecute Rosen, or thinks that it would be a poor exercise of prosecutorial discretion to prosecute him or other reporters similarly situated, is beside the point. Whether there is a potential prosecution does not depend on Holder's state of mind, or the state of mind of anyone currently in power at DOJ; the notion that psychology is everything is, while unfortunately widespread, complete baloney. When the Department goes on record with a court as being of the view Mr. X is at the minimum an aider or abettor or co-conspirator in a federal felony, and must immediately be investigated through extraordinary means because of, among other possible reasons, the risk that he'll flee, then it is nothing more than blinking reality to say that there is no potential prosecution of Mr. X.
Prof. Adler (Conspiracy entry here) takes a slightly different tack. He notes, correctly, that perjury is difficult to prove. But I never said that Holder is going to jail or even that he'd be criminally charged. (To coin a phrase, I think Holder risks a potential prosecution but almost certainly will not see an actual one). I can tell you from my years as a federal prosecutor that people perjure themselves all the time, but very seldom get prosecuted for it. I would be shocked if Holder got prosecuted.
What I said is that I thought (and think at least as strongly now, given his long record of dissembling) that Holder is "in big trouble." Being pressured to resign as Attorney General of the United States under a cloud of well-grounded suspicion of misleading behavior is certainly what I would call "big trouble." And, if a point be made of it, I think the pressure should, and will, prove to be too strong to resist.
UPDATE: Having had the benefit of a note from Orin this morning, I have corrected two errors I made in my entry, although its substance remains unchanged. One error was that I referred to a "wiretap." That is incorrect in this case; Mr. Holder was applying for a search warrant for Rosen's emails, not a wiretap.
My second error was in using and putting quotation marks around the words "flight risk." The affidavit asked that it and Mr. Holder's accompanying application be sealed, because, if they became public, it "may cause [the] subjects to flee."