In his “Stories I’d Like to See” column, journalist and entrepreneur Steven Brill spotlights topics that, in his opinion, have received insufficient media attention. This article was originally published on Reuters.com.
1. Who called a Fox News reporter a “co-conspirator”?
On the Sunday before last, the Washington Post broke a story providing details of the Obama Justice Department’s investigation into how Fox News reporter James Rosen obtained classified information about American intelligence gathering in North Korea. Coming on the heels of the news that the Justice Department had secretly conducted a massive sweep of the phone records of the Associated Press as part of another leak investigation, the Post’s scoop was big news and ignited complaints from the press and others that the Obama administration was engaged in an unprecedented dragnet that would chill basic reporting.
For many, including me, the most disturbing aspect of the Post’s story was that in an affidavit filed seeking a search warrant for Rosen’s email records. The Justice Department told a federal judge that “there is probable cause to believe that the reporter has committed or is committing a violation of section 793(d) as an aider or abettor and/or co-conspirator.” In other words, the government was saying that Rosen’s act of seeking the classified information the way journalists do every day (there are no allegations that he bribed someone for it or stole it) made him guilty of a crime because he was aiding or abetting or conspiring in the leak.
That characterization, which presumably would generate multiple life sentences for Bob Woodward, was unprecedented and seemed, even to many Obama supporters, over the top.
But in a speech last Thursday outlining his administration’s anti-terror and national security policy going forward, President Obama said, “I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs.” The president then promised that Attorney General Eric Holder would review Justice Department guidelines on dealing with the press in leak investigations.
So, was the president walking back his administration’s tough press leaks policy of calling journalists criminals? Maybe. But I have another suspicion.
The government’s affidavit was signed only by an FBI Washington field agent, Reginald Reyes. NBC News reported last week that Holder “signed off” on seeking the search warrant. But that doesn’t clearly answer the question of who signed off on what Reyes’s affidavit actually said, including the language branding reporter Rosen a criminal. Holder has often seemed over his head as attorney general, but could he possibly be that clueless?
Perhaps Reyes and his supervisors and maybe the Justice Department or FBI lawyer who drafted the affidavit went too far on their own, and there were no mechanisms in place to vet the language used in such a sensitive case.
I may be wrong; perhaps FBI director Robert Mueller, Holder, or even the president signed off on this escalated language. But I’d sure like to see a story pinning down how that unprecedented language ended up in the affidavit. Did Holder actually read it?
My hunch is that this is less of a story about the president or even Holder stepping up a war on the press and more a new chapter in a larger narrative that has been playing out in multiple corners of the administration lately: The president and his top people are incompetent managers, aloof from the details of governing—so much so that neither has made sure to have competent enough deputies in place so that in the rare and always-significant instances when subpoenas or search warrants are issued for a reporter’s records the sudden appearance of this kind of language would be flagged.
2. Why no oversight of the IRS?