Fox News officials reacted with outrage last week to the revelation that the Justice Department had closely scrutinized the newsgathering practices of its reporter, James Rosen, as part of a leak investigation.
But federal prosecutors sent an e-mail to Rosen and a certified letter to Fox’s parent company in 2010 notifying them that the government had seized phone records for five numbers associated with the network, according to a law enforcement official.
“The government provided notification of those subpoenas nearly three years ago by certified mail, facsimile, and e-mail,” according to the law enforcement official, who spoke on the condition of anonymity because the case is ongoing.
A spokesman for News Corp. did not take issue with the government’s account but said, “We do not have a record of ever having received it.” Lon Jacobs, the News Corp. general counsel at the time, said the company had come up empty in a search of his files.
“I would think that’s the kind of thing I would remember,” Jacobs said in an interview Tuesday. “The first thing I would have done is call [Fox news chief] Roger Ailes.”
The law enforcement official said government records show that an e-mail was sent to Rosen’s work address on Aug. 27, 2010, and it did not bounce back. The e-mail notified Rosen that the Justice Department had seized two days of phone records from 2009.
Under President Obama, the Justice Department has pursued an unprecedented number of leak investigations. In the probe involving Rosen, Fox’s chief Washington correspondent, law enforcement officials characterized him as a possible “co-conspirator” for allegedly soliciting classified information from former State Department arms expert Stephen Jin-Woo Kim.
Media outlets and government transparency advocates also reacted angrily to reports that prosecutors had secretly seized records for 20 phone lines of Associated Press reporters for an investigation into the disclosure of classified information about a foiled plot involving the al-Qaeda affiliate in Yemen.
Obama has ordered Attorney General Eric H. Holder Jr. to review department guidelines for conducting such investigations. Holder’s aides told the Daily Beast that the attorney general felt a “creeping sense of remorse” after reading reports of the search warrant for Rosen’s e-mail. The Justice Department confirmed NBC News’s report that Holder was personally involved in signing off on the warrant.
Kim is fighting charges in federal court that he illegally disclosed national defense information.
No reporter, including Rosen, has ever been prosecuted under the 1917 Espionage Act. But Rosen’s case was particularly troubling to First Amendment watchdogs because court documents suggested that his day-to-day reporting techniques had violated the law.
In June 2009, Rosen wrote that U.S. intelligence sources were warning that North Korea was likely to respond to a U.N. resolution condemning its nuclear tests with additional tests.
The story appeared hours after a top-secret report spelled out to a limited circle in the intelligence community that the CIA had learned of the tests from “sources inside North Korea,” where the United States has limited intelligence.
In August 2009, Kim e-mailed Rosen, according to court records: “Hope you are alright, but I sense that they are not.” Rosen responded: “You are most perceptive and I appreciate your inquiry. Call me at work on Monday and I will tell you about my reassignment.”
Fox News has said it was never notified about the investigation and could not immediately comment Tuesday specifically on the e-mail to Rosen. A spokeswoman said Rosen’s reassignment was not related to the leak investigation.