Last Tuesday, the Washington Post's Walter Pincus did his level best to dutifully defend the Obama/Holder DOJ's handling of the Associated Press phone records subpoena. Ol' Walt is back at it again this week, chastising the media for "circling the wagons" around Fox News correspondent James Rosen, who was virtually treated like a criminal by the Justice Department when he was named as an unindicted co-conspirator in a leak investigation.
"When First Amendment advocates say Rosen was "falsely" characterized as a co-conspirator, they do not understand the law," huffed Pincus. "When others claim this investigation is 'intimidating a growing number of government sources,' they don't understand history." Lucky for us we have Pincus to school us all, I suppose. But the fact remains that when you consider the timeline of the investigation, there appears to be no legitimate reason for the FBI to have gone on a fishing expedition through Rosen's emails and phone records, considering what they already knew from their investigation of government records that narrowed down the leak to one suspect: intelligence adviser Stephen Jin-Woo Kim.
"On Nov. 9, 2009, investigators got a warrant and searched Kim's e-mail accounts. They found that he and Rosen had set up aliases and that Rosen sought intelligence about North Korea," Pincus noted, after laying out how investigators whittled down the suspect list to just Kim after combing over "State Department security-badge records that show comings and goings" at Foggy Bottom and establishing that Kim was the only one with access to the relevant intelligence who "had contact with the reporter on the date of publication of the June 2009 article," according to a May 2010 affidavit by FBI special agent Reginald Reyes, filed in request of a subpoena of Rosen's email and phone records.
Additionally, Pincus noted, "[f]urther investigation of Kim showed seven calls between his desk phone and Rosen's phones on the day of [Rosen's] article [June 11, 2009], and about 29 others between May and July 2009."
Clearly, the FBI knew who the leaker was when a subpoena was sought of Rosen's records. The investigation was hardly at a dead-end that needed the benefit of subpoenaed records from a journalist.
Additionally, Fox News was NOT alerted to the subpoena at the time but rather, according to federal officials, some three months later.
For his part, Pincus seems most upset with his fellow journalists for insisting that Rosen was improperly, perhaps unconstitutionally being targeted for potential criminal prosecution.
"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," Pincus huffed. "I worry that many other journalists think" that "nothing is more sacred than our profession," Pincus complained at the close of his May 28 piece.
While that is historically true that U.S. attorneys often haven chosen not to prosecute, it is not entirely out of the realm of possibility that such a prosecution could be attempted, nor is it anything to sneeze at when an FBI agent swears under oath "that there is probable cause to believe that the Reporter has committed or is committing" a violation of federal law "punishable by up to ten years imprisonment."
The Obama/Holder Justice Department could have vigorously prosecuted a leak of sensitive intelligence without wading needlessly into an attack on the freedom of the press. That is the issue at hand and Pincus's petulant protests won't change it.