Experts: Tough to stick perjury to Holder
By Jordy Yager - 06/21/13 05:00 AM ET
Legal experts say Republicans don't have much of a chance at making perjury charges stick to Attorney General Eric Holder.
“Perjury is a very tough charge to prove because you have to show that the statement he made was a false statement and he knew it was false,” said Laurie Levenson, a former federal prosecutor and current professor at the Loyola Law School.
“In a perjury case, the nuance makes the difference between guilty and innocent.”
House Judiciary Republicans are investigating whether the nation’s top cop lied under oath when he told the panel that he has never been involved in the prosecution of the press.
Committee Chairman Bob Goodlatte (R-Va.) has questioned whether Holder’s remarks contradict the search warrant application he signed off on for Fox News reporter James Rosen’s e-mails and phone records, in which the journalist was cited as a criminal co-conspirator.
Holder is set to meet with Goodlatte in the coming weeks to discuss the case further, and though the powerful Republican has not directly accused Holder of committing perjury, he has said he is “very concerned” about the possibility.
Goodlatte and Republican members of the committee have argued that the DOJ would not have labeled Rosen as a criminal co-conspirator unless they were intending to bring charges against him, which would contradict Holder's sworn testimony.
But in interviews with The Hill, legal experts say perjury is one of the most difficult cases to prove and, based on the current evidence, Goodlatte and Republicans do not appear to have a case against Holder.
“There’s a difference between searching someone — and getting access to their phone records and emails — and prosecuting someone,” said Darryl Brown, a professor at the University of Virginia Law School.
“Holder was saying I haven’t signed off on charging this reporter with a crime, but he left out the fact that he had signed off on a warrant to search this reporter and maybe they were searching for evidence to prosecute someone else.
“There’s nothing necessarily contradictory about the fact that he has approved the warrant to search the reporter, and also claimed to have not signed off on a prosecution of the reporter,” Brown said.
FBI Director Robert Mueller, under questioning from Republicans last week, told the Judiciary committee that that labeling a target of an investigation as a criminal co-conspirator does not indicate a desire to prosecute them.
“Quite often in search warrants or affidavits in support of search warrants, there are occasions where a person will be mentioned as having culpability, but there will be no discussion or anticipation of prosecution,” Mueller testified.
Stan Brand, a Washington D.C.-based ethics lawyer and former general counsel for the House, said that perjury cases are the most difficult to win because the intent to lie must be proved.
Brand also pointed to another complication: If Republicans did pursue criminal charges against Holder, the Justice Department would be responsible for prosecuting him, which it has declined to do under numerous attorneys general.
Instead, the case could drag out through the federal court system, as is currently happening between Holder and Rep. Darrell Issa (R-Calif.) over a dispute concerning documents related to the botched gun-tracking operation, Fast and Furious.
Chairman of the Oversight and Government Reform panel, Issa too has suggested that Holder may have perjured himself with his comments on the Rosen case.
But Levenson said her first reaction when she heard news that Goodlatte and Republicans might be pursuing a perjury case was that it was “political fodder.”
“I can certainly understand the political roil and uproar over his testimony,” said Levenson. “But I’m not sure that is the equivalent of pursuing a criminal action against your attorney general.
“I think it would be an extraordinarily difficult case to make, if there even is a case to make,” she said.