Thursday, May 30, 2013

If Eric Holder Lied to Congress, He Shouldn't Be Immune to Consequences

If Eric Holder Lied to Congress, He Shouldn't Be Immune to Consequences:

The firestorm commenced by the revelation of the execution of a
search warrant on the personal email server of my Fox News
colleague James Rosen continues to rage, and the conflagration
engulfing the First Amendment continues to burn; and it is the
Department of Justice itself that is fanning the flames.
As we know from recent headlines, in the spring
of 2010, the DOJ submitted an affidavit to a federal judge in
Washington, D.C., in which an FBI agent swore under oath that Rosen
was involved in a criminal conspiracy to release classified
materials, and in the course of that conspiracy, he aided and
abetted a State Department vendor in actually releasing them. The
precise behavior that the FBI and the DOJ claimed was criminal was
Rosen's use of "flattery" and his appeals to the "vanity" of
Stephen Wen-Ho Kim, the vendor who had a security clearance. The
affidavit persuaded the judge to issue a search warrant for Rosen's
personal email accounts that the feds had sought.
The government's theory of the case was that the wording of
Rosen's questions to Kim facilitated Kim's release of classified
materials, and Rosen therefore bore some of the criminal liability
for Kim's answers to Rosen's questions. Kim has since been indicted
for the release of classified information (presumably to Rosen), a
charge that he vigorously denies. Rosen has not been charged, and
the DOJ has said it does not intend to do so.
The government knew that Rosen committed no crime -- not as a
conspirator nor as an aider and abettor -- by asking Kim for his
opinion on the likely North Korean response to the then-pending
U.N. condemnations of North Korea's nuclear and ballistic missile
tests. By telling a federal judge, however, that Rosen somehow was
criminally complicit in the release of classified information by
the manner in which he put questions to Kim, the DOJ substantially
misled the judge into signing a search warrant, which, when
executed, would enable the feds to read Rosen's private emails.
Then, by reading them the feds were led to Fox News telephone
numbers in New York City and in Washington, which they since have
acknowledged they have monitored.
When asked at a congressional hearing just two weeks ago on May
15 to address this, Attorney General Eric Holder replied: "With
regard to the 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."
Whether under oath or not, because Holder spoke in his official
capacity before a congressional committee in its official capacity,
he was legally bound to tell the truth and legally bound not to
mislead the committee. Last Thursday, President Obama in a speech
on national security stated, "Journalists should not be at legal
risk for doing their jobs. Our focus must be on those who break the
law." The next day, the DOJ leaked to NBC News the inconvenient
truth that Holder had personally authorized seeking the search
warrant for Rosen's personal emails; and over the long holiday
weekend, the DOJ confirmed that.
What's going on here? Isn't the Attorney General bound by the
same laws to tell the truth as the rest of us are? Doesn't the
First Amendment protect from criminal prosecution and government
harassment those who ask questions in pursuit of the truth?
The answers to these questions are obvious and well grounded.
One of Holder's predecessors, Nixon administration Attorney General
John Mitchell, went to federal prison after he was convicted of
lying to Congress. The same Attorney General who told Congress he
had "not been involved" in the Rosen search warrant before the DOJ
he runs revealed that he not only was involved, he personally
approved the decision to seek the search warrant, must know that
the Supreme Court ruled that reporters have an absolute right to
ask any questions they want of any source they can find. The same
case held that they cannot be punished or harassed because the
government doesn't like the answers given to their questions. And
the same case held that the if answers concern a matter in which
the public is likely to have a material interest, they can legally
be published, even if they contain state secrets.
The whole purpose of the First Amendment is to permit open,
wide, robust, even unfettered debate about the government. That
debate cannot he held in an environment in which reporters can be
surveilled by the government because of their flattery. And the
government cannot serve the people it was elected to serve when its
high-ranking officials can lie to or mislead the congressional
committees before which they have given testimony.
The great baseball pitcher Roger Clemens spent a few million
dollars successfully defending himself against charges brought by
Holder's DOJ, which accused him of doing what Holder himself has
arguably done. Is this what you expect from the government in a
free society? And when reporters clam up because they don't like
the feds breathing down their necks when they reveal inconvenient
-- or even innocuous -- truths about the government, don't we all
suffer in our ignorance?