Justice search warrant relied on "probable cause" of criminal conduct by Fox News journalist

By labeling a Fox News reporter as a "co-conspirator" to a violation of the Espionage Act, the Department of Justice was able to obtain a secret search warrant in 2010 for the reporter's e-mail, under an exception to the federal statute governing search warrants of the media.

The Justice Department was investigating potential leaks after details from a 2009 report on North Korea were released by James Rosen, a Washington correspondent for Fox News, according to a report Sunday from The Washington Post. Prosecutors have indicted Stephen Jin-Woo Kim, a State Department official, on two charges related to the disclosure. He has pleaded not guilty.

The Privacy Protection Act of 1980 generally protects newsrooms and reporters' work product from searches in criminal investigations that seek those materials. The act, however, permits those searches when the protected person is suspected of committing a criminal offense.

The affidavits said that Rosen potentially committed a crime. By labeling him a "co-conspirator," the Justice Department was able to fit into an exception to the PPA and proceed without getting a subpoena for the materials, which would have likely required giving notice to Rosen.

"As the affidavit in support of the search warrant makes clear, there was probable cause to believe that the reporter had committed a crime," an anonymous Justice Department spokesperson told POLITICO's Josh Gerstein. "The federal magistrate judge who approved that search warrant agreed. However, saying that there is probable cause to believe that someone has committed a crime and charging the person with that crime are two different things." The spokesman added that prosecutors were not planning on charging anyone else at the time.

Media groups have spoken out against the DOJ’s investigation into Rosen, saying that the investigation improperly implies criminal activity taking place within ordinary newsgathering.

"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 D. Brown, executive director of The Reporters Committee for Freedom of the Press in a statement released Tuesday.

"It is not enough to say, as the government has, that there is a difference between filing an affidavit stating 'that there is probable cause to believe that someone has committed a crime and charging the person with that crime.' This explanation does not erase the sworn statement the government made to a federal judicial officer in order to obtain a search warrant for a reporter’s confidential communications with a source."

“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” said Michael Clemente, Fox News’ executive vice president of news, in a statement Monday. “In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”

Steven Ginsberg, the national politics editor for The Post, took to Twitter and called it an “appalling story.”

The Post published the Justice Department affidavit that led to the search warrants, and the affidavit reveals how thoroughly department investigations reach into the professional conduct of journalists.

Prior to the secret warrant application, evidence was obtained from Kim’s work computer and work and cell phone records. According to the affidavit, federal investigators sought some of Rosen’s personal e-mail messages, and all of his e-mail correspondence with Kim.

The affidavit claimed Rosen, in his newsgathering, was violating federal statutes that prohibit “unauthorized disclosure of national defense information” as an “aider, abettor, and/or co-conspirator.”

The news comes in the wake of revelations last week that the Department of Justice secretly subpoenaed records from more than 20 phone lines belonging to the Associated Press and its journalists. That action had already renewed calls for a reporter's shield law.

The warrant was approved and signed in June 2010 by federal magistrate judge Alan Kay, based in Washington. The affidavit did not name Rosen, referring instead to a “Reporter,” but reporting in The Post and elsewhere connected Rosen to the redacted document.