Right-wing media are wildly distorting facts and criminal procedure to pretend Attorney General Eric Holder “lied” to Congress when he testified about government surveillance of journalists and prosecutorial discretion at a May 15 hearing.
Now that the possible chilling ramifications of legal searches of reporters' work product have been widely condemned not only by the press, both political parties, and President Obama and Holder, right-wing media have resorted to misrepresenting search warrant procedure, criminal law, and basic facts of what the Department of Justice (DOJ) actually did in their investigation of how a State Department employee may have violated the Espionage Act of 1917.
Specifically, right-wing media claim Holder's May 15 testimony is inconsistent with a two-year-old affidavit DOJ filed in support of a search warrant request for an email account associated with Fox News' James Rosen, as part of their investigation into the government official's unauthorized disclosure of classified information. Fox News host Sean Hannity was the most recent example, who showed a clip of the testimony on his May 29 show and then stated “what you just witnessed was the United States Attorney General lying while under oath before Congress.”
Continuing in a vein set by Fox News host Megyn Kelly on the May 28 edition of America Live when she complained “it is one thing for the DOJ to go into a courtroom and try to get your records, your phone records, your email records. It's quite another for them not to give you any notice[,]” right-wing media is complaining that the underlying legal rationale behind the warrant request was incorrect. In support of this argument, the Drudge Report has been pushing claims made on Breitbart.com that Holder went “judge shopping” in pursuit of approval for this supposedly flawed search warrant.
But these claims ignore the clear text of the underlying law. As explained by Fourth Amendment expert and professor of law Orin Kerr in the conservative/libertarian legal blog The Volokh Conspiracy, the statue that supports the DOJ warrant request plainly states notification for the surveilled subject is not required:
The relevant law, the Stored Communications Act, does not require notice to the customer or subscriber when the government obtains a search warrant to search an online account. Under the statute, prior notice is required if the government obtains contents with less process than a warrant. But when the government obtains a warrant, no notice is required.
Federal Rule of Criminal Procedure 41 has a notice requirement, to be sure, but it is only that the notice be served where the property was taken -- which in the case of an e-mail account held by an ISP, means notice to the ISP not the customer.
The failure of right-wing media to recognize this, however, pales in comparison to Breitbart.com's laughable subsequent charge that "the effort by the Justice Department to obtain the controversial court order was arduous, contentious and unsuccessful until finally a third judge acquiesced."
What Breitbart.com is describing as nefarious "judge-shopping" is actually the standard act of appealing erroneous decisions in the federal court system. That is, when low-level magistrate judges below inaccurately ruled that notice was required, their superior, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, corrected them and approved the warrant as requested. As Kerr noted, “the magistrate judges misread the statute, and the government sought review of their error so that the Rosen warrant would be treated like every other e-mail warrant.”
Other right-wing media outlets have gone beyond unsuccessfully arguing against the propriety of following statutory text and standard court procedure to confuse the fundamental purpose of search warrants.
To support the Republican accusation that Holder "lied under oath" when he stated "[i]n regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy," Washington Post blogger Jennifer Rubin is doubling down on right-wing media's strange insistence that search warrants inevitably lead to prosecutions. From Rubin's May 28 post:
As I and some other right-leaning journalists pointed out last week, [Holder's May 15 testimony] cannot be squared with the revelation that Holder signed off on the James Rosen search warrant.
The catch is this: If Holder never considered prosecution of journalists including Rosen, then the affidavit laying out a purported criminal case against Rosen was a ruse, a false statement under oath, directed to the court to conduct a wide-ranging dragnet. If, on the other hand, the affidavit which Holder signed off on is true in laying out the case against Rosen, then he didn't level with Congress. In either event, he needs to come back and explain himself.
There is no catch.
The warrant request issued by DOJ was in furtherance of gathering evidence to determine whether Rosen had “solicited the disclosure of intelligence information” in violation of the Espionage Act. Specifically, through Rosen's solicitation of a government official, the affidavit repeatedly claimed it had “probable cause to believe that [Rosen] has committed or is committing a violation of [the Act's prohibition on a government official's leaking of national security information], as an aider and abettor and/or co-conspirator.” This assertion of probable cause is easily “squared” with Holder's May 15 testimony about “potential prosecution.”
Rubin completely omits the key fact that Holder's statement explicitly references the theoretical prosecution of a journalist for “disclosure.” Rosen was not under investigation for his purported “disclosure,” rather for soliciting a government official's disclosure of classified information. If Holder has instead claimed that “in regard to potential prosecution of the press for the solicitation of material,” Rubin might have a point. On its face, however, Holder's real testimony - not Rubin's fabricated one - is completely reconcilable with the warrant request.
But even if Holder had referenced potential prosecutions of journalists who solicit classified information (which he didn't), Rubin still misunderstands the entire purpose of a criminal investigation, as opposed to a criminal prosecution. An affidavit for a search warrant request is not a criminal indictment and not the place where "a purported criminal case" is laid out. As Rule 41 of the Federal Rules of Criminal Procedure makes clear, a warrant doesn't even have to necessarily be directly connected to an arrest, but can be issued for the much earlier investigative steps of gathering "(1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; [or] (3) property designed for use, intended for use, or used in committing a crime." This appears to be exactly what happened.
In fact, Rubin could have checked the handy standard cover sheet to the Rosen search warrant application itself if she needed clarification:
The cover sheet specifically indicates the request is not being made to arrest or prosecute Rosen. It further notes that the underlying crime that Rosen may have aided, abetted, or conspired in through his solicitation was the “gathering, transmitting or losing defense information,” which the text of section 793 of the Espionage Act (referenced in the cover sheet) explains could only be committed by the government official “lawfully” in possession of the classified information, not the reporter. That is, it was the government official's disclosure that was at issue, not Rosen's.
Or, Rubin could have consulted her Washington Post colleague, Pulitzer Prize-winning national security reporter Walter Pincus. Writing in the Post on May 27, he made the same basic points right-wing media is so studiously avoiding:
All reporters covering national security, including myself, recognize we regularly seek classified information. We also know that sources can be accused of breaking the law if caught passing highly classified information to those not cleared to receive it, such as journalists.
While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.
To be so named in an application for a search warrant when the government wants to get a journalist's or any citizen's e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
When First Amendment advocates say Rosen was “falsely” characterized as a co-conspirator, they do not understand the law.
Nevertheless, facts, procedure, and law aren't slowing down the right-wing media's narrative of what Holder didn't actually do. It's a shame, because the underlying concerns about leak investigations and the First Amendment are getting drowned out by these increasingly outlandish smears.