NBC News – by Michael Isikoff Attorney General Eric 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, a law enforcement official told NBC News on Thursday.
The disclosure of the attorney general’s role came as President Barack Obama, in a major speech on his counterterrorism policy, said Holder had agreed to review Justice Department guidelines governing investigations that involve journalists.
“I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable,” Obama said. “Journalists should not be at legal risk for doing their jobs.”
Rosen, who has not been charged in the case, was nonetheless the target of a search warrant that enabled Justice Department investigators to secretly seize his private emails after an FBI agent said he had “asked, solicited and encouraged … (a source) to disclose sensitive United States internal documents and intelligence information.”
Obama’s comments follow a firestorm of criticism that has erupted over disclosures that in separate investigations of leaks of classified information, the Justice Department had obtained private emails that Rosen exchanged with a source and the phone records of Associated Press reporters.
Holder previously said he recused himself from the AP subpoena because he had been questioned as a witness in the underlying investigation into a leak about a foiled bomb plot in Yemen. His role in personally approving the Rosen search warrant had not been previously reported.
A Justice Department spokeswoman did not immediately respond to a request for comment. The Department of Justice later issued a statement about the review of media guidelines: “This review is consistent with Attorney General Holder’s long-standing belief that freedom of the press is essential to our democracy,” it said. “At the same time, the attorney general believes that leaks of classified information damage our national security and must be investigated using appropriate law enforcement tools. We remain steadfast in our commitment to following all laws and regulations intended to safeguard national security as well as the First Amendment interests of the press in reporting the news and the public in receiving it.”
The law enforcement official said Holder’s approval of the Rosen search, in the spring of 2010, came after senior Justice officials concluded there was “probable cause” that Rosen’s communications with his source, identified as intelligence analyst Stephen Kim, met the legal burden for such searches. “It was approved at the highest levels– and I mean the highest,” said the law enforcement official, who spoke on condition of anonymity. He said that explicitly included Holder.
Kim has since been indicted on charges that he leaked classified information to Rosen about how North Korea would respond to a United Nations resolution condemning the country’s nuclear program. He has denied the charges.
In an affidavit in support of a search warrant to Google for Rosen’s emails, an FBI agent wrote that the Fox News journalist — identified only as “the Reporter” — had “asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information.”
“The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego,” it continued. “Much like an intelligence officer would run a clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan that involved” emails from his gmail account.
The affidavit states that FBI agents had tracked Rosen’s entrances and exits of the State Department in order to show that they had coincided with Kim’s movements. Based on that and other findings, the affidavit by FBI Agent Reginald B. Reyes, stated, “There is probable cause to believe that the Reporter has committed a violation” of the Espionage Act “at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”
It also said that Google was specifically instructed not to notify “the subscriber” — Rosen — that his emails were being seized.
In new documents disclosed Thursday, the Justice Department sought and obtained approval to keep the search warrant, which was approved by a federal magistrate, under seal. It was unsealed in November 2011, but never made a part of the docket of Kim’s case and went unnoticed until this week.
Justice officials have since said they do not intend to criminally charge Rosen, but media groups have condemned the issuance of the search warrant itself.
“The Justice Department’s decision to treat routine newsgathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.
In his speech Thursday, Obama reiterated his determination to pursue leak investigations. “We must enforce consequences for those who break the law and breach their commitment to protect classified information,” he said.
But, he said, “Our focus must be on those who break the law,” not journalists. He said he was calling on Congress to pass a media shield law and had raised the issue with Holder, “who shares my concern.”
As part of the Justice Department review of guidelines, the president said, Holder will convene a group of media organizations to hear their views and “report back to me by July 12th.”
NBC News Chief Justice Correspondent Pete Williams contributed to this report.