Holder's Defense: Diminished Capacity?


ACRU Staff


June 3, 2013

This column by ACRU Senior Legal Analyst Jan LaRue was published June 2, 2013 on Townhall.com.

U.S. Attorney General Eric Holder, a former prosecutor and judge, is pleading ignorance of the law as his excuse for criminally accusing a journalist of being a journalist. Holder wants Congress to pass a law to shield the press from him.

There are some laws that the nation’s top law enforcement agent ought to have written on his heart. Take the First Amendment, for example. It’s included in that oath Holder swore to God to uphold.

Holder swore another oath on May 15 when he testified before the House Judiciary Committee on the subject of investigating national security leaks to the media. Holder couldn’t imagine even the potential prosecution of reporters under the Espionage Act:

“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.”

Four days later, Ann E. Marimow of the Washington Post revealed that DOJ had obtained a search warrant under seal on May 28, 2010, for the phone records and emails of Fox News reporter James Rosen, citing “the Reporter’s own potential criminal liability in this matter.” The “matter” being the Espionage Act.

Now that the U.S. Department of Justice has confirmed that Holder discussed and approved the application for the warrant, Holder appears to be setting up a diminished capacity plea.

If the “exclusive” in the Daily Beast by Daniel Klaidman is to be believed, Holder was clueless about what he had done until his “personal soul-searching” moment during his morning devotional in the Washington Post. According to Klaidman:

“But for Attorney General Eric Holder, the gravity of the situation didn’t fully sink in until Monday morning when he read the Post‘s front-page story, sitting at his kitchen table. Quoting from the affidavit, the story detailed how agents had tracked [Fox Reporter James] Rosen’s movements in and out of the State Department, perused his private emails, and traced the timing of his calls to the State Department security adviser suspected of leaking to him. Then the story, quoting the stark, clinical language of the affidavit, described Rosen as ‘at the very least … an aider, abettor and/or co-conspirator’ in the crime. Holder knew that Justice would be besieged by the twin leak probes; but, according to aides, he was also beginning to feel a creeping sense of personal remorse.”

“Seriously, Your Honor, it wasn’t until I was sitting there enjoying my Fruit Loops that I realized that the affidavit in support of the Rosen search warrant violated the First Amendment and DOJ policy. It was all so creepy. If only there’d been a shield law to stop me.”

There ‘s probably no chapter and verse in the Post, but the Bible, that Book on which Holder swore his oath to uphold the Constitution, distinguishes a godly sorrow for wrongdoing from a post-exposure (no pun intended) “creeping sense” of federal slammer syndrome.

On the subject of creepy, if Holder has his way, Americans will have to endure yet another bunch of bipartisan Senate gangsters.

Holder has called Sens. Charles Schumer (D-NY), Dick Durbin (D-Ill.) (of the “let’s sic the IRS on conservatives wing of gangsters”), and Lindsey Graham (R-SC) asking them to pass a media-shield law because Holder is so off-balance. According to Klaidman:

“As one of Holder’s advisers put it, the message was: ‘Look we get it. We understand why this is so controversial, and we’re ready to make changes to find the right balance.’ At the same time, Holder enlisted their help to get a media-shield law passed in Congress. (On Sunday, Schumer announced the formation of a bipartisan ‘gang of eight’ to press for the legislation.)”

Six months before a judge granted the Holder-approved search warrant under seal for Rosen’s private phone records and emails, which DOJ fought to keep a secret, Holder testified before the Senate Select Committee on Intelligence. He spoke authoritatively about DOJ’s “formal policy” of going after leakers but not the press:

“We have interpreted the Justice Department’s formal policy on obtaining information from members of the news media, codified at 28 C.F.R. § 50.10, as requiring that leak investigation focus on potential leakers rather than reporters.”

On Feb. 9, 2012, Lisa O. Monaco, assistant attorney general for the national security division of DOJ, reiterated the same interpretation of the “long-standing” DOJ policy when she testified before the same committee. The Code of Federal Regulations that Holder and Monaco cited sets forth the rules for subpoenaing records of a member of the press.

Here’s the rub. There are many hurdles for a zealous A.G. like Holder to comply with when it comes to obtaining subpoenas for the press. Ah, but when it comes to obtaining a search warrant for the press, nobody thought to write any rules about that.

So what’s a legal ignoramus to do but ignore the Constitution and other laws, and tell the judge there’s probable cause to believe that a reputable journalist has violated the Espionage Act. The affidavit for the warrant precisely cites and quotes the Act, codified at 18 U.S.C. Sec. 1793, as the law Rosen is accused of violating as an “aider, abettor, or co-conspirator.”

The whole purpose of these investigations is to identify the leaker. Holder already knew who that was. Stephen Kim is named repeatedly in the affidavit for the warrant as the State Department employee who leaked the information to Rosen. This explains why two judges denied the warrant during Holder’s judge-shopping spree.

Now the nation’s top cop is being investigated for perjury and misleading Congress, crimes for which Holder’s DOJ unsuccessfully prosecuted former baseball great Roger Clemens.

President Obama has compounded the travesty by directing Holder to review DOJ guidelines regarding national security investigations involving journalists. That should prove as profitable as Holder investigating Fast & Furious, a matter for which the House of Representatives held him in contempt.

Everyone has a prayer, but the odds are that the last word on the scandal engulfing Holder will never match that written about Daniel in the Bible: “They could find no corruption in him, because he was trustworthy and neither corrupt nor negligent.”

Since “personnel is policy,” Holder is the policy that should be scrapped.



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