DANGEROUS PRECEDENT

05.30.13

Pentagon Papers Lawyer James Goodale: It’s Time for Eric Holder to Resign

The attorney general’s conduct in trying to pass off the James Rosen subpoena as falling under the Espionage Act proves that he is abusing his office. Pentagon papers lawyer James Goodale has seen this before—in Richard Nixon.

Attorney General Eric Holder should resign for his role in the James Rosen case. He signed off on a search warrant to Rosen, a Fox News reporter. This warrant treated Rosen as a common criminal. It sets a terrible precedent. Holder should resign to erase this precedent.

Stephen Jin-Woo Kim, a State Department adviser, had leaked to Rosen information about North Korea’s nuclear plans. The Justice Department sought the source of this leak by obtaining a search warrant for Rosen’s emails and other records. Fox News believes the search warrant even sought records from Rosen’s parents, who live in Staten Island, New York.

The basis for obtaining the warrant was that Rosen had conspired with Kim to violate the Espionage Act. That act does not apply to Rosen. It does however, in the government’s view, apply to Kim. It should be clear to anyone that Holder has run an end run around the Espionage Act by his actions. While Rosen is not subject to the Espionage Act, Kim is. But Rosen might as well be subject to the act if he can be held responsible for Kim’s actions.

The reason the Espionage Act does not apply to Rosen is that it does not apply to those who publish (or broadcast) information leaked to them. In the Pentagon papers case, the government asserted initially the Espionage Act did apply to The New York Times, the paper that published parts of the Vietnam archives leaked to it by Daniel Ellsberg.

If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal. In short, the government has criminalized the news-gathering process.

When, however, the Times proved to the district court Judge Murray Gurfein that the word “publish” had intentionally been left out of the act, Gurfein concluded that the act was inapplicable. Thereafter, the government dropped its use of the Espionage Act, and it never appeared in its case again—even at the Supreme Court.

In its affidavit for a search warrant, the government asserted that Rosen had cajoled Kim into violating the act by trying to get Kim’s story out of him. Any reporter will quickly recognize that Rosen’s efforts are customary news-gathering practices used by all reporters. News does not come over the transom; reporters have to work hard to get it.

The government has now put itself in the position of setting standards for what reporters can and cannot do when they talk to those who have access to classified information. If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal.  In short, the government has criminalized the news-gathering process.

Holder’s actions should come as no surprise to those who have been following him closely.  Rosen is not the only journalist Holder thinks is a criminal.  He is also pursuing Julian Assange, the founder of WikiLeaks. Pfc. Bradley Manning leaked classified information to Assange.

While little noticed, a grand jury was empanelled to indict Assange in 2010,  initially seeking charges under the Espionage Act. Holder however, later announced “there were problems” with using the Espionage Act for this purpose. Presumably Holder’s problem was that the Espionage Act did not apply to the publication by Assange of Manning’s leaked information on Assange’s website.

Thereafter, Justice Department officials let it be known that the grand jury was proceeding on a theory that Assange conspired with  Manning to leak to Assange. Assange had also made the leaked information available to Der Spiegel, Le Monde, El País, and The Guardian. Later The Guardian shared this information with The New York Times, and all of them published parts of the leaked information, as did Assange on his website.

In December 2010, when the Committee to Protect Journalists learned that Holder had switched to a conspiracy theory, it wrote a letter to President Obama not to prosecute Assange, because such prosecution would criminalize news gathering. The committee pointed out to Obama that Assange was a journalist protected under the First Amendment and should not be treated as a co-conspirator. But little did the Committee to Protect Journalists know that Holder had used the conspiracy theory seven months before in May 2010, when he approved the use of the search warrant for Rosen’s records.

As far as anyone can tell, this grand jury is still alive. Assange’s lawyers believe it has already secretly indicted him. They think that as soon as Assange leaves the Ecuadoran Embassy where he is holed up, he will be faced with the indictment in the U.S. for conspiring with Manning.

Asking courts to treat journalists as criminals under the Espionage Act has only been asserted once before Holder started using it. President Richard M. Nixon used it against New York Times reporter Neil Sheehan, who obtained the Vietnam archives from Daniel Ellsberg.  Following the Pentagon papers case, Nixon convened a grand jury to indict Sheehan for conspiring to cause the leak of the Pentagon papers. Nixon failed in this effort, and the grand jury disbanded after 17 months.

The difference between Nixon and Holder is that Nixon failed in his effort to treat Sheehan as a co-conspirator.  Nixon therefore could not create the precedent that reporters could be treated as criminals.  Holder has.  He should resign.