Reporting that House Republicans are investigating whether Attorney General Eric Holder lied to Congress during his recent testimony about Justice Department seizures of communications records in connection with a national security leak investigation, CNN's Dana Bash misstated key facts of the controversy. In so doing, CNN helped bolster the hollow claims of Republicans -- wildly hyped by Fox News -- that Holder may have perjured himself.
On May 15, Holder appeared before Congress to answer questions about the revelation that the Department of Justice had seized phones records from the Associated Press covering a two-month period and had done so without notifying the news organization. The seizure was part of an investigation of the leak of classified information published by the wire service.
During the hearing, Holder was asked if prosecutors could charge journalists with a crime if they published leaked material.
Holder said that was a bad idea: "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, would think would be wise policy." [Emphasis added.]
Since then, it was revealed that Fox News' James Rosen had been described as "at the very least, either as an aider, abettor and/or co-conspirator" in a 2010 FBI affidavit in support of warrant seeking permission to look through the reporter's phone records as well as the contents of his personal email account. The FBI was looking for correspondences with then-State Department security adviser Stephen Jin-Woo Kim, who has been charged with leaking classified information to Rosen about North Korea in 2009. Holder approved of the warrant request. (Rosen was never charged with a crime.)
Using his May 15 testimony, Republicans and Fox hosts have pounced, claiming Holder contradicted himself.
As CNN explained it (emphasis added):
Though he testified in a May 15 Congressional hearing that he's "never heard of" the press being potentially charged for obtaining leaked material, it has since been reported that he signed off on the Justice Department's decision to seek a search warrant in 2010 for Fox News reporter James Rosen's private e-mails as part of a leak probe.
That was CNN's first mistake: In the Congressional testimony cited, Holder did not address the idea of charging reporters with a crime for "obtaining leaked material," as CNN suggested in its report. Instead, Holder said he had never been involved with potentially charging a reporter for "the disclosure of material." (i.e. Obtaining and disclosing materials are two different acts.)
Then later in the piece, CNN misstated the contents of the FBI warrant request:
An FBI affidavit used to obtain the warrant for Rosen's e-mails said there was probable cause the reporter had broken the law when he allegedly received a leaked classified report from a State Department contractor.
The CNN report additionally claimed Rosen was labeled a "co-conspirator" to "the crime of disclosing government secrets." Both claims are inaccurate.
According to the FBI warrant request, Fox's Rosen was labeled a "co-conspirator" not because he "received" leaked information or disclosed it, but because, according to the FBI, he solicited the information.
In a 2010 affidavit in support of the search warrant, an FBI agent named Rosen as a possible "co-conspirator" in the case because he "asked, solicited and encouraged" Kim to give him information.
That is a key point that journalists ought to be clear about when reporting this story: The FBI did not name Rosen as a "co-conspirator" because he obtained classified information. The FBI named Rosen in the affidavit because he was viewed as having encouraged his source to break the law.
In terms of Holder's testimony supposedly being in conflict with the fact he approved the Rosen warrant, the Attorney General made clear on May 15 that he had never been involved with potentially prosecuting reporters who disclosed leaked information, nor did he think it was wise policy.
Nothing about the Rosen case changes that fact.