Eric Holder — Obama’s Attorney General — should be impeached by the Republican House of Representatives. Without a doubt, Holder’s obvious perjury in lying to Congress is the most serious offense. But to understand one of Holder’s underlying offenses (in a long string), one must know the difference between “good law” and “bad law.” Under the letter of the law, the search warrant for Fox News reporter James Rosen’s emails appears proper. But the Attorney General defied U.S. Supreme Court precedents.
In March 1971, The New York Times received a copy of the secret Vietnam War “Pentagon Papers,” 7,000 pages long, by a government contractor Daniel Ellsberg. The Times published excerpts in July 1971 and the government sought an injunction against further publication.
The U.S. Supreme Court ruled that the news media has a right to publish secret or classified information, once obtained. In the case of New York Times v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), a unanimous U.S. Supreme Court held that the First Amendment protects journalists from interference from the government even concerning government secrets. The justices offered a wide variety of different explanations of their conclusion, but voted 9-0 for the final result.
So, the U.S. Constitution requires a sharp distinction between government employees and the news media. Yet displaying a DoJ culture of contempt for the courts, and lacking both honesty and integrity, the DoJ under Eric Holder defied the U.S. Supreme Court.
In a scenario surprisingly similar to the Vietnam “Pentagon Papers,” Fox News published James Rosen’s report on North Korea’s development and testing of nuclear weapons and the Obama Administration’s weak handling of the crisis. Rosen obtained this information from U.S. State Department employee Stephen Jin-Woo Kim. Rosen’s report definitely pushed the envelope in revealing intelligence community assessments and information.
Stephen Kim — still facing trial — will argue that he provided the confidential analysis on North Korea to Fox News as a whistleblower, for the same reasons that Daniel Ellsberg leaked the “Pentagon Papers” to the New York Times. Both Daniel Ellsberg and Stephen Kim wanted to warn the public and Congress that the administration was failing to handle serious dangers and that American lives were in danger from policy failures and mismanagement. Whether that is fair or not is certainly controversial. Many people will sharply disagree.
Yet Eric Holder personally approved a wide-ranging search warrant for private emails and communications by James Rosen, as well as emails of Rosen’s parents and his personal emails. Note that this was entirely separate from different search warrants focusing on Stephen Kim.
To persuade a judge to sign the search warrant against a reporter, the Department of Justice falsely accused James Rosen of a crime in an affidavit sworn out by FBI agent Reginald Reyes. The affidavit was filed with the Court by U.S. Attorney Ronald C. Machen, a Justice Department official supervised by Eric Holder.
Now, on its face, the law which Eric Holder’s DoJ relied upon seems to apply. 18 U.S.C. § 793(d) and § 793(g) makes it a crime to conspire to obtain secret or classified information. Therefore, under the letter of the law, James Rosen does appear guilty of a criminal conspiracy to obtain the information from Stephen Kim.
But this is “bad law” — at least when applied to journalists. The U.S. Supreme Court’s decision invalidates the letter of the law when applied to the news media.
As Justice Black and Justice Douglas explained in New York Times v. United States:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
Justice Black and Douglas continued:
Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment.
In the sworn affidavit (download or view), FBI agent Reginald Reyes swore under oath in paragraph 5 that “there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abetter and/or co-conspirator, to which the materials relate.” The affidavit also swears that Rosen violated 18 U.S.C. 793(g). The affidavit swears in paragraph 6 that the Reporter’s actions — James Rosen — are punishable by ten years in prison.
Naturally, the government official or contractor may of course be prosecuted for providing the information. The government may control its own employees. But it may not control the news media. Daniel Ellsberg was prosecuted, but escaped on a mistrial due to the gross misconduct of the Nixon Administration, including burglarizing the office of Ellsberg’s psychiatrist looking for information with which to smear and discredit Ellsberg. But once information is in the possession of the news media, the First Amendment of the U.S. Constitution protects the journalists’ free use of that information.
Also, note how easy it is to get a search warrant or any court action if only one side shows up to argue before the judge. The affidavit also swore that James Rosen is a flight risk, to avoid giving notice to Fox News. The FBI and DoJ lied to the Court. The claim that Rosen is a flight risk is preposterous.
Had Fox News received notice, Fox News lawyers could have argued against the search warrant, including the over-broad and excessive scope. But with no one to speak on the other side, Federal District Court Chief Judge Royce Lambert signed the secret search warrant. Judge John M. Facciola had previously rejected the Obama Administration’s argument for a secret search warrant.
Reginald Reyes’ vague, boilerplate FBI affidavit to get the search warrant offers a stew of assumptions, speculation, and hearsay from unspecified persons. It exposes to public view how routine and easy it is for the FBI and Federal prosecutors to manipulate Federal courts to get the result they want. Government officials know what they have to say to get the results they want. A few of them are willing to simply parrot legal talking points and push the right buttons with legal boilerplate, losing sight of truth, justice, honor, and integrity. Some jokingly call this “testi-lying.”
Congress needs to take its responsibility seriously, especially to the extent that the U.S. Department of Justice did not. Any Federal official or judge may be impeached, not only a president. Note that the House “impeaches” an official, the equivalent of an indictment. A trial is then mandatory in the U.S. Senate, on the specific charges identified by the House, even though the Senate is currently controlled by Democrats. But Congress is responsible to do its job, regardless.