Verrrry strange. Remember, the DOJ went after two forms of communication in investigating Rosen for leaks. One was his e-mails, which were sought via search warrant precisely so that they didn’t have to inform him that they were snooping. The other were his phone records, which they sought by subpoena. Did they notify Fox News at the time that they were looking at who he’d called and at who’d called him? They sure did, claimed a law-enforcement source:
[A] Fox News executive said the Justice Department notified Fox’s parent company News Corporation of the subpoena in May 2010. But Fox News itself apparently never got the word…
“In the investigation that led to the indictment of Stephen Kim, the government issued subpoenas for toll records for five phone numbers associated with the media,” a law enforcement source told CNN. “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.”
Three forms of notice to the parent company! Why didn’t Fox News report this at the time, then? Because … News Corp never told them, which seems like an odd omission for a company that’s known for being the White House’s biggest big-media antagonist. If Holder’s DOJ was snooping on a Fox News reporter, Fox surely would have been very interested in knowing it and in making sure that the public knew it too. So why didn’t News Corp notify its subsidiary?
Simple, says the company’s former chief counsel. Contrary to what that “law-enforcement source” says, there was no notice from the DOJ.
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.”
News Corporation said it had conducted a thorough search of its legal records, including, Mr. Jacobs said, a scan of his e-mails and other relevant materials, and has found nothing related to the investigation. “The inference that I sat on this and didn’t share it with Roger couldn’t be further from the truth,” Mr. Jacobs said.
Three forms of notice at the time — allegedly — and News Corp has nothing in its files. Presumably there’s also no record of the company attempting to fight Rosen’s subpoena in court, which would have been a fait accompli in the case of a journalist being investigated by the government to discover his sources. That’s one mystery. Here’s another mystery: If the DOJ used a search warrant (and an accusation of criminal activity) rather than a subpoena to obtain Rosen’s e-mails so that it didn’t have to notify him of the search, why didn’t they use that tactic vis-a-vis his phone records too? The fact that they were trying to keep the e-mail search secret from him suggests that they probably wanted to keep the phone-records search a secret too. Which adds more credibility to News Corp’s claim that it never got any notice.
If all of that’s true, though, how to explain News Corp’s surprisingly contrite statement on Sunday night?
“While we don’t take issue with the DOJ’s account that they sent a notice to News Corp., we do not have a record of ever having received it. We are looking into this matter.”
Why, after Holder’s mendacity and the DOJ’s clandestine monitoring of Rosen, would News Corp refuse to take issue with the DOJ’s claim that the provided notice? Read Ryan Lizza for a theory. Could be that News Corp is quietly negotiating with the Justice Department over its liability in the UK’s phone-hacking scandal. If that’s true, then knowledge that the DOJ never provided the requisite notice in a case of snooping on a journalist is more useful to them privately, as leverage at the negotiating table. Consider that scenario, in which the DOJ’s malfeasance is quietly ignored by prospective defendants in return for a lighter sentence, and then consider the case of True the Vote being hassled about various infractions by all levels of government after it caught the IRS’s attention. If you’re a victim of federal wrongdoing, it’s in your interest to keep that information quiet lest they take a keener interest in your own wrongdoings. As True the Vote discovered, you’re always guilty of something. It’s purely a question of how hard the regulatory state wishes to scrutinize you.
Here’s Lizza’s latest, examining a different warrant in the Rosen/Kim case. Money line: “Even before the government sought this search warrant, and certainly after it executed it, the case against Kim was strong.” If that’s so, why did they take the extra step of starting to monitor Rosen’s accounts? Were they really interested in further building the case against Kim or were they on a fishing expedition to find out who else Rosen was talking to?