The Justice Department went head-to-head with federal judges to try to prevent Fox News reporter James Rosen from knowing of a warrant that allowed the agency to extensively search his private email account.
Documents from a court filing this week
reported by The New Yorker reveal that two judges separately declared the Justice Department was required to notify Rosen of the search warrant. But the government pressed forward with an appeal in the Federal District Court for the District of Columbia and ultimately prevailed.
Rosen did not learn that the government seized his email records until it was reported in The Washington Post last week.
Authorities had argued Rosen should not be notified about a warrant as it would limit their ability to monitor his email account over a lengthy period of time, thereby compromising their investigation into whether Rosen may have broken the law in the way he obtained classified information for a 2009 piece about North Korea.
"The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay," The New Yorker reported.
"Otherwise: 'The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of [his] email account,' Judge John M. Facciola wrote in an opinion rejecting the Obama administration's argument."
But the government appealed that decision, the magazine said, and Royce Lamberth, the chief judge in the Federal District Court for the District of Columbia, agreed to overturn the two judges' ruling.
Rosen's report later led to the prosecution of former State Department adviser Stephen Jin-Woo Kim, who was indicted for making unauthorized disclosures of national defense information and for making false statements to the FBI about his contacts with Rosen.
Meanwhile, Fox News' parent company, News Corp., continues to deny knowledge of a Justice Department notification that it had seized records from five phone numbers. The government says that notification was sent to Rosen's work email on Aug. 27, 2010.
"That's the kind of thing I would remember," Lon Jacobs, the company's general counsel at the time, told The Washington Post. "The first thing I would have done is call [Fox News chief] Roger Ailes."
Authorities characterized Rosen a possible "co-conspirator" for soliciting classified information from Kim, and the Justice Department sought to review Rosen's emails beyond the specific case to look at his methods for news-gathering more widely, The New Yorker reported.