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Saving Saving TUESDAY, MAY 21, 2013 POLITICO 27 Holder Walks Fine Line on Prosecuting Reporters It ‘has not fared well by the government. The fact that prosecutors cited Rosen’s “poten- in American history’ tial criminal liability” as a reason not to ask him directly for access to BY JOSH GERSTEIN the information and to assert that doing so “would pose a substantial Attorney General Eric Holder’s threat to the integrity of the inves- rejection last week of the idea of tigation” raises the possibility that prosecuting journalists for pub- they leveled a similar argument in lishing classified information the AP case, which relates to a leak sounded categorical and abso- about a CIA-related counterterror- lute. But was it? ism operation in Yemen. Under questioning by Rep. It wouldn’t be shocking if some Hank Johnson (D-Ga.), Holder of the legal rationale behind the dismissed the notion of prosecut- two cases was similar: Prosecu- ing reporters as, basically, nuts. tor Jonathan Malis, the deputy “You’ve got a long way to go to chief of the National Security unit try to prosecute people — the press in the D.C. U.S. Attorney’s Office, for the publication of that mate- is assigned to both matters. rial,” Holder declared. “This has … Normally such searches re- not fared well in American history.” quire the approval of the attorney “With regard to the potential general, pursuant to DOJ guide- prosecution of the press for the COURTESY OF THE STATE DEPARTMENT lines. In the AP case, Deputy At- disclosure of material, that is not Prosecutors seeking a search warrant for the email account of Fox reporter James Rosen, shown interviewing Secre- torney General Jim Cole gave the something that I’ve ever been in- tary of State John Kerry in March, invoked his potential criminal liability as part of their arguments for the warrant in an approval. In the Rosen/Kim case, volved in, heard of or would think investigation into alleged leaks by State Department contractor Stephen Kim about North Korean nuclear test plans. Holder presumably did. would be a wise policy,” Holder It appears from the paperwork added later. “The focus should be that Rosen was to be given notice on those people who break their questing the voluntary production tify Rosen about the search. DOJ mitting certain crimes. of the search 30 days after it was oath and put the American people at of the materials from Reporter guidelines appear to require If Rosen were considered ordered. The AP also learned of risk, not reporters who gather this (sic) would be futile and would such notice usually before, but simply a bystander, prosecutors the search of its phone records information. That should not be the post a substantial threat to the sometimes after the fact. Those might have had to use a subpoe- after the fact. focus … these investigations.” integrity of the investigation and guidelines are separate as a legal na, which would most likely have Fox issued a statement Monday While the Justice Department of the evidence that we seek to matter from the notification re- involved notice to Rosen and a decrying DOJ’s action. hasn’t actually prosecuted jour- obtain by the warrant.” quirements in the law. chance for him to fight the sub- “We are outraged to learn today nalists for obtaining or publish- that James Rosen was named a ing classified information, it turns criminal co-conspirator for simply out it has used the prospect of doing his job as a reporter. In fact, such prosecution to persuade the it is downright chilling. We will un- courts to get evidence in such in- “With regard to the potential prosecution equivocally defend his right to op- vestigations. As The Washington of the press for the disclosure of material, erate as a member of what up until Post first reported Sunday, pros- now has always been a free press,” ecutors seeking a search warrant that is not something that I’ve ever been Fox Executive Vice President of for Fox reporter James Rosen’s involved in, heard of or would think would News Michael Clemente said, ac- email account invoked his poten- cording to TVNewser. tial criminal liability as part of be a wise policy.” The idea that journalists could their arguments for the warrant be prosecuted for publishing in an investigation into alleged Attorney General Eric Holder leaked classified information is leaks by State Department con- by no means unheard of. It some- tractor Stephen Kim about North times works to the advantage of Korean nuclear test plans. The search warrant, granted It appears the prosecutors’ poena in court. reporters, allowing them to invoke “There is probable cause to by Federal Magistrate Alan Kay, statements about Rosen having “The whole reason that Con- the Fifth Amendment in order to believe that the Reporter [known spanned all Rosen’s emails with potentially committed a crime gress passed the Privacy Protec- avoid testifying, as then-Washing- from context to be Rosen] (along Kim as well as two days of Rosen’s were aimed at allowing them to tion Act was because a guy with a ton Times reporter Bill Gertz did with Mr. Kim) has committed a vi- emails in full. There appeared to proceed through use of a search gun was going to takesaving your stuff,” in 2008.millions A judge said New York olation of 18 U.S.C. § 793 (d) either be certain limits on what the feds warrant rather than a grand jury said University of Minnesota me- TimesAmerica’s reporter Emergency James Care PhysiciansRisen might as Mr. Kim’s co-conspirator and/ could retain from those emails if subpoena or other means. Under dia law professor Jane Kirtley. “It have criminal liability in connec- or aider and abettor,” FBI agent they were entirely unrelated to the Privacy Protection Act of 1980, doesnt apply to subpoenas.” tion with leaks he received and Reginald Reyes wrote in the May the inquiry, or violations of the search warrants are available to The paperwork in the Rosen published about the CIA’s efforts 28, 2010, search warrant applica- Espionage Act. seize journalists’ work products search warrant may also offer clues to target Iran’s nuclear program, tion. “Because of the Reporter’s Another federal judge in Wash- only under certain circumstances, about why The Associated Press but prosecutors seeking to force own potential criminal liability ington ruled later that the DOJ such as when the journalist him- was told after the factsaving about their his testimony obtained an order in this matter, we believe that re- was not required by law to no- self or herself is suspected of com- telephone records beingMILLIONS searched granting him immunity. America’s Emergency Care Physicians America’s emergency physicians save more AMERICA’S EMERGENCY saving CARE PHYSICIANS than lives. MILLIONS They are dedicated specialists who coordinate care for their patients. saving MILLIONS Paid for by the American College of Emergency Physicians. America’s Emergency Physicians newsroom.acep.org ACEP Saving Millions_Politico-HILL.indd 4 5/14/13 4:49 PM.
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