This is a rush transcript from "Special Report," June 3, 2013. This copy may not be in its final form and may be updated.
BRET BAIER, ANCHOR: Democratic Senator Schumer out on the Sunday shows. This as a couple of quotes in The New York Times Sunday raised some eyebrows here in Washington. Here's one of them about Attorney General Holder and his future, quote, "Some of the West Wing privately tell associates they wish he would step down, viewing him as politically maladroit." Then "'The White House is apoplectic about him, and has been for a long time, ' said a Democratic former government official who did not want to be identified while talking about friends. Some advisors to Mr. Obama believe that Mr. Holder does not manage or foresee problems, the former official said. 'How hard would it be to anticipate that the AP would be unhappy? '" The former official then said "and then they haven't defended their position," "they" being the Department of Justice.
We are back with our panel, the future of Eric Holder, Mara?
MARA LIASSON, NATIONAL PUBLIC RADIO: I still think his job is pretty safe. I think he still has the confidence of the president. Jay Carney made a point today of reading the on-the-record quote from the chief of staff, instead of these blind quotes, saying he has utter confidence in his abilities. I think that if Eric Holder wants to leave he will, but he won't be pushed out. But he is going to have to answer a lot more questions about the search warrant for James Rosen's e-mails.
BAIER: Tom Brokaw among others have said this is the Potomac two step. You have Democrats out defending him publicly, but privately some inside the White House undercutting.
CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: And I can understand that. He is hurting the administration, hurting the president. If you are a pure, cynical, partisan you are a Republican, you would want Holder to stay in office to use a phrase from the Watergate days, twisting out there in the wind, because what he did is pretty indefensible. His defense of I lied to Congress is I deceived a judge. Not exactly a good defense. And it is a deception of the judge.
It wasn't only that he said that Rosen would be a criminal co-defendant, which he now says he never intended. It was a ruse to be able to look into Rosen's e-mail. But then he added on to that is he a flight risk. Now, if you never intend to prosecute the guy, then being a flight risk is entirely irrelevant. It is simply a means to deceive a judge into thinking that you intend a prosecution, which is exactly the opposite of what he intended.
BAIER: Well, here is what the DOJ sent out today. And it wasn't from Holder himself. It was from a lower level assistant attorney general. "Seeking a search warrant is part of an investigation of potential criminal activity, which typically comes before any final decision about prosecution. Probable cause sufficient to justify a search warrant for evidence of a crime is far different from a decision to bring charges for that crime. Probable cause is a significantly lower burden of proof than beyond a reasonable doubt, which is required to obtain a conviction on criminal charges."
Continuing, "At no time during the pendency of this matter -- before or after seeking the search warrant," again this is for James Rosen and the Kim leak investigation, "have prosecutors sought approval to bring criminal charges against the reporter, [Rosen]. The attorney general's testimony before the committee on May 15th, 2013, with respect to the department's prosecutions of the unauthorized disclosure of classified information was accurate and consistent with the facts. As the attorney general explained, these prosecutions focus on those who 'break their oath and put the American people at risk, not reporters who gather this information. '"
I wanted to read all of that because it is pretty detailed. The response from the committee, Steve, is this is insulting, and they want to hear from Holder himself.
STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: It is. I mean, look. It's important to remember what Eric Holder said. He talked about potential prosecution, not prosecution, and said that not only he had not been involved in it, he had never even heard of such a thing. Well, that is clearly false. We know based on the information that has come out from the White House and has otherwise been reported that what he said there is not true. So I can take, you know, a two and a half page letter that lays out all of the legalese about it, but everybody understands that what they said wasn't true.
BAIER: What if they are saying that he never had the intent, he never intended to prosecute ever. So in his mind it wasn't a potential prosecution. That's what they are saying.
HAYES: But he said he had never even heard of a discussion of a potential prosecution. As Charles points out, that was the expressed purpose of the search warrant. That was the express purpose of labeling James Rosen a potential co-conspirator and a possible flight risk. You don't do that in theory. That's what they were arguing.
LIASSON: Wait a second. You know what, first of all, I think it's almost impossible to -- it is -- it goes against common sense to say you would call someone a flight risk, you would say they are at the very least an aider and abettor and a co-conspirator, and then you say but we were never thinking about prosecuting him, we were never thinking about potentially prosecuting him. We just have this hyperbolic request to a judge for a search warrant of his e-mails so we can nab the leaker. We never were going to try to prosecute the leakee. It's just hard for people to understand.
However, I believe that Eric Holder never would have prosecuted James Rosen because we haven't ever prosecuted someone for this. And in his own mind, he does believe that. It's just that it is almost impossible to square the circle of why you would say all those horrible things about James Rosen to a judge when you have no intention of prosecuting him.
KRAUTHAMMER: When you a tell a falsehood, which, in your own mind, is completely irrelevant. He said he never even heard of a potential prosecution. He not only heard of it, he argued it. And then he brings up the issue of flight risk which is entirely irrelevant, entirely, unless you are thinking of a potential prosecution. So, it does not stand up to logic. What's in his mind is as equal as irrelevant as to whether he himself is a flight risk.
BAIER: Is he gone this summer?
BAIER: That's it for the panel. But stay tuned for a duet that you will not forget.
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