A single passage in the government’s affidavit in the James Rosen case has captivated Washington for nearly two weeks. The affidavit sought a search warrant to snoop in the personal Gmail account of Rosen, a Fox News reporter who had secured critical national security information in 2009. Here’s the explosive wording:
“[T]here is probable cause to believe that the Reporter [Rosen] has committed or is committing a violation of section 739(d), as an aider and abettor and/or co-conspirator…”
Wow, responded the media. Fox News chief Roger Ailes, in a memo to his staff, used the “C” word to describe what the passage seemed to be suggesting: “We reject the government’s efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a “co-conspirator” in a crime.” (Bolded text added). Many others deployed similar language.
A small backlash has whipped up to rebut the notion that the Justice Department, with this “co-conspirator” language, was in fact seeking to criminalize journalism. The Post’s Walter Pincus, for instance, pushes back with these thoughts from a recent column:
While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.
To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
George Washington University law professor Orin Kerr attempted to tamp down the “war on journalism” outrage with a tract showing that the Justice Department, in using the aider/abettor/co-conspirator labels, was merely complying with the provisions of the Privacy Protection Act.
All this talk of co-conspirators comes in the stream of some fascinating legal history. Check it out: Back in April 1971, there was unrest at Stanford University Hospital. Demonstrators had barged into the administrative offices and established an occupation. The cops were called in, and in the ensuing clash nine officers were injured.
As a summary of the case notes, “The officers themselves were able to identify only two of their assailants, but one of them did see at least one person photographing the assault…”
A photographer for the student newspaper Stanford Daily had indeed snapped some photographs helpful to the officers. So the local prosecutor sought and obtained a warrant to search the newspaper’s offices for “negatives, film, and pictures showing the events and occurrences at the hospital.” And here’s a key fact: The affidavit for the warrant “contained no allegation or indication that members of the Daily staff were in any way involved in unlawful acts at the hospital…”
The newspaper sued, and the case—Zurcher v. Stanford Daily—went all the way to the Supreme Court, which ruled, in essence: No problem! The authorities may indeed nab a search warrant and raid a newspaper in pursuit of incriminating evidence, even when that evidence is held by very law-abiding student photographers and reporters. And the court pooh-poohed any intrusion on media freedoms:
The fact is that respondents and amici have pointed to only a very few instances in the entire United States since 1971 involving the issuance of warrants for searching newspaper premises. This reality hardly suggests abuse; and if abuse occurs, there will be time enough to deal with it. Furthermore, the press is not only an important, critical, and valuable asset to society, but it is not easily intimidated — nor should it be.
Congress wasn’t pleased with the court’s ruling, so it passed the Privacy Protection Act (PPA). The law remedied the overreach in the Stanford Daily case, declaring that law enforcement cannot “search a newsroom for the purpose of obtaining work product or documentary materials relating to a criminal investigation.”
Great stuff, in other words—except for the exceptions. And this is where Fox News reporter James Rosen enters the picture. The PPA makes clear that its protections for news outlets don’t apply when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.”
It’s that very exception that the Justice Department exploited in grabbing ahold of Rosen’s personal e-mail communications. It told a judge that Rosen may well have committed a violation of the Espionage Act as it pursued its e-mail search warrant.
Now: The Justice Department has said that it is not actually going to go ahead and prosecute Rosen for the crime of which it quasi-accuses him in the search-warrant affidavit. To summarize: On the one hand, the government wants to tar Rosen as a possible criminal; on the other hand, it says, “Nah, he’s fine.”
White House Press Secretary Jay Carney faced down that very contradiction in his press briefing on Wednesday. He was asked about Attorney General Eric Holder’s statement on Capitol Hill that he’s never “heard of” a potential prosecution of a reporter. A portion of the transcript:
Q: Jay, specifically even if the Attorney General ruled out that he was going to prosecute Rosen, on the question of a potential prosecution, he said, “this is not something I’ve ever been involved in, heard of.” We know he was involved in it at the very least. That’s the question. Was he not telling the truth on that point? He was involved in it.
MR. CARNEY: Involved in what?
Q: He signed off on the [Rosen] search warrant. Are you not involved after signing off on a search warrant?
MR. CARNEY: Again, I would refer you to the Justice Department.
Q: Those were his words. He said it.
MR. CARNEY: You guys are conflating the subpoena with prosecution. And I think that it is — again, I would just point you to what the Attorney General said.
The Justice Department’s legal brinkmanship offends David Schulz, a name partner with the firm Levine Sullivan Koch & Schulz and lawyer for the Associated Press in its battle with the government over a wide-ranging phone-records subpoena. For the purposes of this post, however, Schulz is speaking strictly for himself as an attorney. “They’ve done the expedient thing that allows them to get what they want without giving the press an opportunity to object,” says Schulz. “If they did not believe Rosen was committing a crime, they shouldn’t have been invoking that part of the PPA. Either they were really accusing him of a crime or they weren’t. I mean, you can’t have it both ways. It’s very troubling.”
Schulz doesn’t dispute that the government has considerable national-security imperatives in the Rosen case. The problem, he says, relates to how it chooses to pursue them. “There are ways to investigate and this isn’t the way,” he notes.
And then the kicker: “Limiting liberty in the interest of expediency is the definition of tyranny,” says Schulz.