WASHINGTON — Fox News officials reacted with outrage last week to the revelation that the Justice Department had closely scrutinized the newsgathering practices of reporter James Rosen as part of a leak investigation.
But federal prosecutors sent an email to Rosen and a certified letter to Fox’s parent company in 2010 notifying them that the government had seized phone records for five numbers associated with the network, according to a law enforcement official.
“The government provided notification of those subpoenas nearly three years ago by certified mail, facsimile, and email,” according to the law enforcement official, who spoke on condition of anonymity.
A spokesman for News Corp. did not take issue with the government’s account but said, “We do not have a record of ever having received it.”
Lon Jacobs, the News Corp. general counsel at the time, said the company had come up empty in a search of his files.
“I would think that’s the kind of thing I would remember,” Jacobs said in an interview Tuesday. “The first thing I would have done is call [Fox news chief] Roger Ailes.”
The law enforcement official said government records show that an email was sent to Rosen’s work address on August 27, 2010, and it did not bounce back. The email, signed by three federal prosecutors, notified Rosen that the Justice Department had seized two days of phone records from 2009.
Rosen has not commented on the investigation and did not return an email Tuesday.
Under President Barack Obama, the Justice Department has pursued an unprecedented number of leak investigations. In the probe involving Rosen, Fox’s chief Washington correspondent, law enforcement officials characterized him as a possible “co-conspirator” for allegedly soliciting classified information from former State Department arms expert Stephen Jin-Woo Kim.
Media outlets and government transparency advocates also reacted angrily to reports that prosecutors had secretly seized records for 20 phone lines of Associated Press reporters in Washington, New York and Hartford, Conn., as part of an investigation into the disclosure of classified information about a foiled plot involving the al-Qaida affiliate in Yemen.
Obama last week ordered Attorney General Eric Holder to review the department’s guidelines for conducting such investigations. Holder’s aides told the Daily Beast that the attorney general felt a “creeping sense of remorse” after reading reports of the search warrant for Rosen’s email. The Justice Department confirmed NBC’s report that Holder was personally involved in signing off on the warrant.
Kim, the former State Department adviser, is fighting charges in federal court that he illegally disclosed national defense information. No reporter, including Rosen, has ever been prosecuted under the 1917 Espionage Act.
But the case involving Rosen was particularly troubling to First Amendment watchdogs because court documents suggested that his day-to-day reporting techniques had violated the law.
In addition to the Justice Department trying to notify Rosen directly about the search of his phone records in 2010, Rosen may have found out about the investigation a second way.
A federal judge in May 2010 signed off on the search warrant for two days’ worth of Rosen’s personal emails from a Google account — and all of his email exchanges with Kim. In general, Google says it notifies users by email about legal demands for their information “unless prohibited by law or court order.”
U.S. District Judge Royce Lamberth found in November 2010 that the government was not obligated to notify Rosen about the search of his private account. But there was nothing in the court record that would have prohibited Google from following its own notification policy, which was in effect in 2010, according to the company.