Over the weekend, the Department of Justice tried to defend its warrant that allowed them to snoop on Fox News reporter James Rosen by claiming that Justice informed their parent company of the warrant at the time. The lack of information at Fox News, Justice suggested, came from a miscommunication within the larger corporate structure. Yesterday, however, News Corporation rebutted that claim, saying they had no record of any such notification:
The Justice Department has signaled that it notified News Corporation on Aug. 27, 2010, that it had seized the phone records of a Fox News reporter — who turned out to be the Washington correspondent James Rosen — after one of his articles had included details of a secret United States report on North Korea.
The seizure was part of the department’s case against Stephen Jin-Woo Kim, a State Department contractor investigated in connection with the North Korea leak. Mr. Kim has pleaded not guilty to leaking information and is awaiting trial. Fox News has denied that it knew about the subpoena, while Justice Department officials have said they sent notification 90 days after obtaining the records.
A law enforcement official said on Sunday that in the investigation that led to the indictment of Mr. Kim, “the government issued subpoenas for toll records for five phone numbers associated with the media.” This person, who spoke on the condition of anonymity, added, “Consistent with Department of Justice policies and procedures, the government provided notification of those subpoenas nearly three years ago by certified mail, facsimile and e-mail.”
A Fox News executive said the channel had never heard of the Justice Department investigation and had no knowledge of New Corporation ever being notified. A News Corporation spokesman said Sunday that the company was looking into the matter of notification. “While we don’t take issue with the D.O.J.’s account that they sent a notice to News Corp., we do not have a record of ever having received it,” Nathaniel Brown, the spokesman, said.
No matter how large the organization might be and how much legal work comes over the transom, a note from Justice would be memorable for any media corporation — especially one that accused a reporter in one of the subsidiaries of being a spy. While the official statement treaded carefully with a “we have no record” response, the man in charge of News Corp’s legal department utterly rejected Justice’s claim:
Lawrence A. Jacobs, who was News Corporation’s chief legal officer until he left in June 2011, said he never saw a notification about the phone records.
“I would have remembered getting a fax from the Justice Department,” Mr. Jacobs said in an interview Sunday. “These are not the kinds of things that happen every day.”
He added, “The first thing I would’ve done would be to call Roger Ailes.”
Jacobs asked another pertinent question:
Former News Corp. General Counsel Lon Jacobs says he never received notification from the Department of Justice about Rosen’s records. Justice, Jacobs said, appears to have sent a fax to his office line in August of 2010 and never followed up.
“I don’t know why the Department of Justice would send a single fax,” Jacobs said. “If they wanted Fox News to know about it, why not go to Fox?”
Er, a fax? This doesn’t pass the smell test. According to statute, the Department of Justice is supposed to notify a media organization after a period of time that their records have been seized. Would any court accept a single fax to a recipient as a valid notification? I’d say that’s very doubtful. When courts and attorneys have a requirement to notify someone of anything significant, they have to be served papers in a manner that allows for someone to physically witness it — either by hand delivery or by registered mail. Shooting off a fax to a parent company’s offices (for example, sending a fax to Comcast’s headquarters to notify NBC of seizing the records of Chuck Todd) and selling that as sufficient notification for anything is simply absurd, let alone informing them of the status of co-conspirator in an espionage case.
This sounds like a CYA maneuver that a bad student might try with a college instructor: Hey, I faxed you that essay a week ago! Want me to resend it? It’s a very poor attempt to push blame onto News Corp for Justice’s failure to comply with the notification requirements of the statute — and does nothing to address the more serious issue of representing to a court that Rosen was a co-conspirator in espionage, or Eric Holder’s lie to Congress about not being aware of that representation when his signature was on the warrant application. It doesn’t just fail the smell test — it stinks.
Update: I added “court” in the second-to-last paragraph, which I had inadvertently edited out in the original version. Also, as an added thought, a FedEx delivery would have worked as well as registered mail or a process server — pretty much anything with a signature on delivery would suffice.