Journalists: Eric Holder Believes You’re Probably a Criminal But Won’t Charge You

As I noted the other day, Eric Holder seems intent on calling journalists whom he believes are co-conspirators in a criminal leak something else.

Which is why I think this detail, from Politico’s leaks-about-a-meeting-about-leaks story, is the most telling I’ve seen on the Holder meeting.

“The guidelines require a balance between law enforcement and freedom of the press, and we all argued that the balance was out of kilter, with the national security and law enforcement interests basically overwhelming the public’s right to get information,” one journalist at the meeting said. “The language concerning ‘aiding and abetting’ comes out of the Privacy [Protection] Act, and they discussed trying to revise that language so that reporters don’t need to be defined as co-conspirators in order to execute search warrants.”

This is a reference to part of the Privacy Act that prohibits the government from seizing media work product unless it is connected to a crime (see pages 5 ff for how it affected the James Rosen warrant application). After claiming Rosen was aiding and abetting a violation of the Espionage Act and therefore his emails could be seized, the FBI then said that since he was potentially criminally liable, he should not get notice. In other words, the aiding abetting was an investigative tactic DOJ used to get around protections put into place just for someone like Rosen.

And DOJ’s solution for abusing a protection meant to protect someone like Rosen is apparently to simply redefine the law, so it can overcome those protections without having to accuse Rosen of being a criminal.

The outcome would remain the same; DOJ would just avoid saying mean things about people associated with powerful media outlets.

But the letter Principal Assistant Deputy Attorney General Peter Kadzik sent to answer Bob Goodlatte and Jim Sensenbrenner’s questions about Eric Holder’s testimony about whether he ever prosecuted a journalist makes it clear he thinks James Rosen probably is a criminal, regardless of what he calls it.

When the Department has initiated a criminal investigation into the unauthorized disclosure of classified information, the Department must, as it does in all criminal investigations, conduct a thorough investigation and follow the facts where they lead. 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 is 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.

Note the slippage here: Kadzik says the standard for a probable cause warrant is different than the standard for charging, then says a probable cause warrant is different from the standard for convicting.

What Kadzik is implicitly suggesting is that while DOJ might think Rosen was a criminal co-conspirator, they’d never win their case against him. So they never considered charging him.

I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

This letter seems to support this.

9 replies
  1. Phil Perspective says:

    I joked some weeks ago that journalists should take solace in all this: Obviously, Eric Holder holds them in precisely the same category as banksters, those who are guilty of a crime but that DOJ chooses not to charge with one.

    The joke is that Holder doesn’t really think the banks committed any crimes. Or is that just his boss?

  2. Ben Franklin says:

    @Phil Perspective:

    .” Or is that just his boss?”

    When Michael Eric Dyson proclaimed he was the ‘Moses of our time’, he must have been thinking of the Boss.

    The Boss sent the original into the wilderness for 40 years and he never even got to see the Promised Land.

  3. lysias says:

    Of course, if that is the distinction Holder was thinking of, there is no reason he couldn’t prosecute a journalist if the evidence were stronger, or if other reasons for bringing charges were strong enough.

    And it looks as if that is what he intends with respect to Assange.

  4. Ben Franklin says:


    Couldn’t help but paste the last graf…..

    “And after Representative Louie Gohmert, Republican of Texas, suggested that the Justice Department was culpable in the Boston Marathon bombings because the F.B.I. had failed to fully pursue a tip from the Russian government, Mr. Holder responded assertively.

    “You don’t have access to the F.B.I. files,” he said, later adding: “I know what the FBI did. You cannot know what I know.”

    Now he’s blowing double-bubbles.

  5. JTMinIA says:

    I’m not sure if I agree with the (joking) idea that Holder thinks of banksters and journos as similar. When a bankster goes right up to the line (and maybe across by a bit), the economy crashes and TurboTax Timmeh’s buddies get rich. When a journo comes anywhere near the line, all that happens is that the public becomes more informed. Not even comparable, IMO.

Comments are closed.