The New York Times Provides a Few New Tidbits on the Rosen Affair

| Sat May 25, 2013 3:16 PM EDT

Why did the Justice Department accuse Fox News reporter James Rosen of committing a crime in its application for a warrant to search his email account? The New York Times explains today:

Investigators routinely search the e-mails of suspected leakers, but Congress has forbidden search warrants for journalists’ work product materials unless the reporter committed a crime. A 2010 affidavit seeking the warrant — necessary, an F.B.I. agent wrote, because the analyst had deleted e-mails in his own accounts — declared that Mr. Rosen qualified for that exception because he violated the Espionage Act by seeking secrets to report.

In other words, they had to accuse Rosen of a crime in order to get the warrant approved. It was all pro forma, and doesn't suggest anything one way or the other about whether they ever intended to actually charge Rosen with anything.

There's also this interesting tidbit from the same story:

While Fox News was informed nearly three years ago about the subpoena for call logs for five lines related to Mr. Rosen — apparently after the phone company had already provided them — it did not publicly disclose the action. Instead, it emerged only this month when court papers were unsealed that also showed that the government had separately obtained a warrant for the contents of Mr. Rosen’s private e-mail account. A lawyer and spokesmen for Fox did not respond to requests for comment.

So Fox has known about this since 2010. They only went public with the outrage when it became convenient to slot it in as part of Scandalmania™. How about that.

UPDATE: Ah. We have answers on the Fox News thing. Apparently DOJ sent its notification of the subpoena to the parent company, News Corp., not Fox News itself, and News Corp. never passed this along to Fox. If this is true, Fox really did learn about this only recently.

UPDATE 2: Via Twitter, Ryan Lizza and others are intensely critical of this post. They may be right. So let me expand a bit on this.

The basic complaint is that I'm not taking seriously the implication of my post: that DOJ included the allegation that Rosen had committed a crime not because they believed it, but simply because that's what they needed to do in order to get the warrant approved. In other words, they lied. That's possible. However, it's also possible that they did suspect Rosen of committing a crime, and changed their mind after they read his email exchanges with Stephen Jin-Woo Kim. A third possibility is that they believed, and continue to believe, that Rosen committed a crime, but have simply chosen not to prosecute. That happens all the time.

Unfortunately, we have no way of knowing which of these is true because DOJ isn't talking. Nor do we have Rosen's side of this because he isn't talking either. So it's all speculation. This is what I meant when I said this "doesn't suggest anything one way or the other" about DOJ's actual intentions. We simply don't know. But the Times story is nonetheless interesting because it explains why the allegations about Rosen had to be in the warrant.

I've already made my position clear on the warrant: I don't think it was justified. At the same time, it seems very odd that Rosen potentially blew the existence of a high-level North Korean source just for the sake of a trivial story that told us nothing new. I'd like to know whether he really did, or if his throwaway line about "sources inside North Korea" didn't actually reveal anything that wasn't already public. It also seems odd that Fox stayed mum about this for three years. I'd like to understand that better too.

Something about the Rosen case just doesn't add up. But a lot of people don't seem to be taking the possible outing of an intelligence source very seriously. They're acting as if the DOJ prosecution is over a completely meaningless story. That might be, but I think a bit less circling the wagons, and a bit more serious questioning, might be in order here.

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