Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Holder walks fine line on prosecuting journalists

Attorney General Eric Holder's rejection last week of the idea of prosecuting journalists for publishing classified information sounded categorical and absolute. But was it?

Under questioning by Rep. Hank Johnson (D-Ga.), Holder dismissed the notion of prosecuting reporters as, basically, nuts.

"You've got a long way to go to try to prosecute people—the press for the publication of that material," Holder declared. "This has...not fared well in American history."

(WATCH: Eric Holder gets grilled on the Hill)

While the Justice Department hasn't actually prosecuted journalists for obtaining or publishing classified information, it turns out it has used the prospect of such prosecution to persuade the courts to get evidence in such investigations. As the Washington Post first reported Sunday, prosecutors seeking a search warrant for Fox reporter James Rosen's e-mail account invoked his potential criminal liability as part of their arguments for the warrant in an investigation into alleged leaks by State Department contractor Stephen Kim about North Korean nuclear test plans.

"There is probable cause to believe that the Reporter [known from context to be Rosen] (along with Mr. Kim) has committed a violation of 18 U.S.C. § 793 (d) either as Mr. Kim's co-conspirator and/or aider and abettor," FBI agent Reginald Reyes wrote in the May 28, 2010 search warrant application (posted here). "Because of the Reporter's own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter (sic) would be futile and would post a substantial threat to the integrity of the investigation and of the evidence that we seek to obtain by the warrant."

The search warrant, granted by Federal Magistrate Alan Kay, spanned all Rosen's e-mails with Kim as well as two days of Rosen's e-mails in full (as detailed here). There appeared to be certain limits on what the feds could retain from those emails if they were entirely unrelated to the inquiry, or violations of the Espionage Act.

It appears the prosecutors' statements about Rosen having potentially committed a crime were aimed at allowing them to proceed through use of a search warrant rather than a grand jury subpoena or other means. Under the Privacy Protection Act of 1980, search warrants are only available to seize journalists' work products under certain circumstances, such as when the journalist himself or herself is suspected of committing certain crimes.

If Rosen were considered simply a bystander, prosecutors might have had to use a subpoena, which would likely have involved notice to Rosen and a chance for him to fight the subpoena in court.

"The whole reason that Congress passed the Privacy Protection Act was because a guy with a gun was going to take your stuff," said University of Minnesota media law professor Jane Kirtley. "It doesnt apply to subpoenas."

The paperwork in the Rosen search warrant may also offer clues about why the Associated Press was told after the fact about their telephone records being searched by the government. The fact that prosecutors cited Rosen's "potential criminal liability" as a reason not to ask him directly for access to the information and to assert that doing so "would pose a substantial threat to the integrity of the investigation" raises the possibility that they leveled a similar argument in the AP case, which relates to a leak about a CIA-related counterterrorism operation in Yemen.

It wouldn't be shocking if some of the legal rationale behind the two cases was similar: prosecutor Jonathan Malis, the deputy chief of the criminal division in the D.C. U.S. Attorney's Office, is assigned to both matters. While Malis is now working on both cases, a DOJ spokesman told POLITICO early Tuesday that Malis was not assigned to the Kim investigation at the time the search warrant was issued two-plus years ago.

Normally such searches require the approval of the attorney general, pursuant to DOJ guidelines. In the AP case, Deputy Attorney General Jim Cole gave the approval. In the Rosen/Kim case, Holder presumably did.

It appears from the paperwork that Rosen was to be given notice of the search 30 days after it was ordered. The AP also learned of the search of their phone records after the fact.

Fox issued a statement Monday afternoon decrying the Justice Department's action.

"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter. In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press," Fox executive vice president of news Michael Clemente said, according to TVNewser.

On air, Fox News senior political analyst Brit Hume ridiculed portions of the search warrant affidavit where the government says use of flattery and pseudonyms are indicia of a crime.

"If that’s a crime, I don’t know what’s left of the protections of the First Amendment," Hume said on Fox Monday afternoon. "They allege the activity which we call cultivating sources and reporting the news was criminal."

A Justice Department official said Monday that Holder was not recused from the investigation which led to the Rosen e-mail search. DOJ guidelines normally require the attorney general's approval for attempts to obtain testimony or records from a journalist or to obtain a journalist's telephone records. It's unclear whether those provisions of the guidelines apply directly to subpoenas issued to an internet firm for e-mail records of a journalist.

Rosen's alleged source, Stephen Kim, was indicted in August 2010. However, a DOJ spokesperson suggested Monday there is no plan to prosecute Rosen.

"As the affidavit in support of the search warrant makes clear, there was probable cause to believe that the reporter had committed a crime. The federal magistrate judge who approved that search warrant agreed. However, saying that there is probable cause to believe that someone has committed a crime and charging the person with that crime are two different things," said the spokesperson, who asked not to be named. "Under federal prosecutor guidelines, prosecutors are required to consider a variety of factors before deciding whether and to what extent to bring charges. No reporter has been charged in this case. And, at this time, we do not anticipate bringing additional charges against anyone in this matter.”

The idea that journalists could be prosecuted for publishing leaked classified information is by no means unheard of. It sometimes works to the advantage of reporters, allowing them to invoke the Fifth Amendment in order to avoid testifying, as then-Washington Times reporter Bill Gertz did in 2008. A judge said New York Times Reporter James Risen might have criminal liability in connection with leaks he received and published about the CIA's efforts to target Iran's nuclear program, but prosecutors seeking to force his testimony obtained an order granting him immunity.

Many legislators have also suggested that Wikileaks founder Julian Assange be prosecuted for obtaining and publishing classified U.S. military reports and diplomatic cables. However, some figures, including Holder, have suggested that Assange should not be considered a journalist.

CORRECTION (Monday, 1:43 P.M.): The initial version of this post mistakenly referred to Rosen at a couple points as Risen.

UPDATE (Monday, 2:15 P.M.): This post has been updated with the comments from Fox.

UPDATE 2 (Monday, 6:22 P.M.): This post has been updated with comments regarding Holder not being recused from the investigation involving Rosen.

UPDATE 3 (Monday, 7:22 P.M.): This post has been updated with a DOJ spokesperson saying no further charges in the case are anticipated.

CORRECTION 2 (Tuesday, 9:39 A.M.): This post has been updated to correct Malis's title to chief of the criminal division at the U.S. Attorney's Office in D.C. and to clarify the timing of his involvement in the Kim case.