What happens if KSM (and his co-defendants) â€œdo not get convicted,â€ asked Senate Judiciary Committee member Herb Kohl. â€œFailure is not an option,â€ replied Holder. Not an option? Doesnâ€™t the presumption of innocence, er, presume that prosecutorial failure â€” acquittal, hung jury â€” is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.