Let’s begin with a dose of common sense: Credible accusations of perjury compromise the authority of law enforcement officers, regardless of their rank.
Even at the lowest level, law enforcement officials exercise enormous power – holding liberty in their hands as they exercise the discretion of their office, deciding whom to investigate and to prosecute.
As the saying goes, with great power comes great responsibility. That certainly applies to those at the top – including the attorney general – the nation’s top law enforcement officer. His chief responsibility: upholding the Constitution and the rule of law. And that requires being honest and forthcoming.
Attorney General Eric Holder has failed in this responsibility. Simply put, with the First Amendment and press freedom at stake, he misled Congress, misled a federal court, and misled the American people.
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To recap: On May 15, 2013, Attorney General Holder told Congress, under oath, the following:
"With regard to the potential prosecution of the press for the disclosure of material, that is not something that I've ever been involved with, heard of, or would think would be a wise policy."
The problem? Attorney General Holder had previously signed an affidavit in support of a search warrant in a criminal leak investigation declaring there was: “probable cause to believe that the reporter [Fox News Chief Washington Correspondent James Rosen] 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.”
He’s never even been “involved with” the “potential prosecution” of the press, yet he told a federal court that there was “probable cause” to believe that a reporter had committed a crime? How are those messages consistent?
On Monday, the Department of Justice attempted to defend itself, releasing a letter to the House Committee on the Judiciary that drew a distinction between investigations (the subject of the affidavit) and prosecutions (the subject of his testimony). Here’s the key defense:
Ultimately, as you know, although a Grand Jury has charged a government employee with the unauthorized disclosure of classified information, prosecutors have not pursued charges against the reporter.
At no time during the pendency of the matter – before or after seeking the search warrant – have prosecutors sought approval to bring criminal charges against the reporter.
The attorney general’s testimony before the Committee on May 15, 2013, with respect to the Department’s prosecutions of the unauthorized disclosure of classified information was accurate and consistent with these facts.
This explanation, however, makes little sense in the real world. Remember, Attorney General Holder said that he had not been involved with even the “potential prosecution” of the press, that he had not “heard of” such a potential prosecution, nor would he think it a “wise policy.”
If that was in fact the case, wouldn’t that be materially important information to disclose to a court when seeking a search warrant? If there was no possibility of prosecuting the reporter, why mention the reporter’s potential criminal liability at all?
In other words, either the attorney general misled the court when it created the impression that its investigation was based on “probable cause” to believe Mr. Rosen committed a crime, or he misled Congress when he minimized the very real significance of the affidavit he signed.
The attorney general is trying to have it both ways – using the “magic words” necessary to obtain the search warrant he wanted while – much later – attempting to use different (but equally magical) words to escape public accountability for actions that dangerously limit press freedom.
This dissembling may be enough to escape a perjury charge, but it is not enough to maintain the dignity of the office. Nor is it enough to reassure the public that the nation’s chief law enforcement officer should be entrusted with decisions that implicate core constitutional liberties.
Let’s not forget that this is merely his latest offense as attorney general.
He has stonewalled the Fast & Furious investigation, he’s been cited for contempt of Congress, and most recently his Department of Justice has launched vast and intrusive investigations of members of the media.
As the Obama administration faces, and investigates, scandal after scandal, it is asking us to rely upon the impartiality and integrity of its Department of Justice. So long as Eric Holder is at the helm it will be impossible to trust its judgment or its conclusions.
The American people deserve an attorney general who is dedicated to upholding the Constitution and the rule of law in a direct and honest manner – not dodging questions, parsing words and misleading Congress and the American people.
It’s time for Attorney General Holder to resign.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He also serves as a member of President Trump’s legal team. Follow him on Twitter @JaySekulow.