Author’s Note – This piece recently was submitted to (but not published by) my local semiweekly newspaper, The Tooele Transcript-Bulletin.
Attorney General Holder’s conduct in Rosen case raises troubling questions
By Ken K. Gourdin
The Department of Justice’s warrant application to sift through Fox News reporter James Rosen’s e-mails raises troubling questions about Attorney General Eric Holder’s fitness to continue in that position.
Rosen did what reporters do: he merely asked a question and reported what a source told him. If federal national security law was violated, it was violated by the source, not by the reporter. Allowing the Department of Justice to declare open season on reporters is a blatant violation of the First Amendment, and lying to a judge to obtain a warrant is a blatant violation of the Fourth Amendment.
Holder’s meeting with press representatives to discuss laws which may be necessary to protect reporters as they engage in legitimate newsgathering activities misses the point entirely. If the government doesn’t obey the laws already on the books, what good will new laws do?
Reports have said that Holder “feels remorse” over the DOJ’s investigation of Rosen. His sudden attack of remorse seems rather strange: either he had probable cause to ask a judge to issue a warrant in the Rosen case, or he didn’t.
If Holder lacked probable cause, then he may well have lied to a judge in the affidavit he submitted to get the judge to issue the warrant. Lying to judges in a sworn statement such as an affidavit, in case you were wondering, is a huge “no-no.” It’s called perjury, and it’s a felony.
Holder shouldn’t be allowed to bow out gracefully by resigning because of, for example, “family reasons.” If you or I committed perjury, there’s a good chance we’d be prosecuted for it.
While Holder’s meeting with press representatives was conveniently “off the record,” one of his suggestions reportedly was to increase judicial oversight over government media monitoring. Such oversight, however, would not have prevented what happened in the Rosen case.
Holder simply shopped around until he found a judge willing to sign off on the warrant. When the first judge to whom he presented it wouldn’t do so, he went to another judge; and when that judge wouldn’t do so, he went to yet another judge, who finally did so.
Fox News apparently is the only media outlet President Obama calls out by name. But then Obama “bit the hands that feed him” by sitting idly by while the government pawed through the phone records of Associated Press reporters on a similar fishing expedition.
Before that fishing expedition, Obama’s sycophantic relationship with the rest of the media was peachy keen. (But don’t worry; Holder’s investigation of Rosen wasn’t political. Fox News’ well-known conservative posture is simply coincidental.)
An independent counsel should be appointed to investigate Holder’s potential wrongdoing. The problem is that due to a recent change in the independent counsel statute (which was supposed to depoliticize the process), Holder himself would have to make the appointment.
If you or I were to try to appoint someone to investigate possible wrongdoing in which we’ve been implicated, it would be considered a conflict of interest. But don’t worry: Holder is high above such human concerns.
Ken K. Gourdin, Tooele, holds a B.S. in criminal justice from Weber State University and is certified as a paralegal. This column is not legal advice. Anyone needing such advice should contact a licensed attorney.