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.Assuming he shares the generally understood definition of what a journalist's job is, what President Obama said yesterday is entirely correct. The problem is that it's completely at odds with the legal rationale his administration used to obtain the Rosen search warrant.
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."
It doesn't matter that Rosen hasn't been charged with a crime—the fact is that the search warrant accused him of criminal acts without giving him chance to respond to it before it was executed. That's pretty much the definition of being put at legal risk. Unless the guideline review renounces the tactic used in the Rosen case, the administration's policies will still be at odds with the principle articulated by the president.
Meanwhile, Fox News chairman Roger Ailes yesterday released a statement describing that administration's actions as "an attempt to intimidate Fox News." But while Ailes and his team will no doubt try to spin this into a partisan confrontation, the First Amendment doesn't say that "Congress shall make no law ... abridging the freedom of The Fox News." Especially given the AP phone records subpoena, the issue isn't some sort of political witch hunt against Fox. Instead, it's that the government put its desire to stop leaks ahead of the Constitutional right to freedom of the press without even giving the press a chance to defend itself. That's a problem that needs to be fixed.