In his speech at the National Defense University Thursday, President Obama said, “Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law.”
Maybe it’s time for the president to have a heart-to-heart with his attorney general, Eric Holder.
NBC News is reporting that Mr. Holder “signed off on a controversial search warrant that identified Fox News reporter James Rosen as a ‘possible co-conspirator’ in violations of the Espionage Act and authorized seizure of his private emails,” per NBC conversations with a law enforcement official.
In the case of the government’s subpoena for the phone records of as many as 100 Associated Press editors and writers, Mr. Holder left the decision for a deputy to make after he recused himself.
But if NBC News is right, then the attorney general himself green-lighted the FBI to seek a subpoena for Mr. Rosen’s private emails in the spring of 2010.
If true, then Mr. Holder has a difficulty. He might have recently misled Congress in a profound way. Some might even say he lied.
On May 15, before the House Judiciary Committee, Congressman Hank Johnson (D-Ga.) asked the attorney general, “We also have an old law that would allow for prosecution of anyone who published the classified information, isn’t that correct?”
In the course of a rambling answer, Mr. Holder said, “You've got a long way to go to try to prosecute people—the press for the publication of that material. This has...not fared well in American history."
So far, so good: Mr. Obama and Mr. Holder apparently agree. "The focus should be on those people who break their oath and put the American people at risk, not reporters who gather this information. That should not be the focus...of these investigations," the attorney general went on to say.
But Mr. Holder also proclaimed, "With regard to the potential prosecution of the press for the disclosure of material, that is not something I've ever been involved in, heard of, or would think would be wise policy."
But that’s exactly what the government was trying to do in the case of James Rosen, then a Fox News reporter on the State Department beat, now Fox News’ chief Washington correspondent.
The FBI sought Mr. Rosen’s phone records and private emails because they alleged there was “probable cause to believe” Mr. Rosen was a “co-conspirator and/or aider and abettor…committing the criminal offense…”
If NBC is right and Mr. Holder approved going after Mr. Rosen, then the attorney general has a lot of explaining to do to Congress.
House Judiciary Committee Chairman Bob Goodlatte might well want to ask Mr. Holder to appear again and explain why he said targeting journalists was “not something I've ever been involved in, heard of, or would think would be wise policy” after he had heard of it, had been involved in it, and had signed off on it as a matter of policy.