May 23, 2013

WaPo’s Marimow Fails to Reveal 18-month Delay Which Crossed 2012 Election in Unsealing Rosen Warrant Until Judge ‘Apologizes’

One obvious question which occurred to me and I suspect others when I read Ann Marimow’s first account at the Washington Post dated May 19 of the search warrant issued in 2009 for the personal emails of Fox News reporter James Rosen was: “Where has this thing been hiding?”

The “Affadavit for Search Warrant” is dated May 28, 2010. Why did it come out just this week? Marimow didn’t say. More stories followed, still without explanation. It’s not unreasonable to believe that the Post might have sat on knowledge of its existence, and that someone who works at the U.S. Court may have worked to keep it invisible for 18 months after it was supposed to have been unsealed in November 2011.

Two reaction stories came out on Monday, May 20.

In “Fox calls DOJ investigation of reporter ‘downright chilling,’” Marimow wrote that “The warrant was unsealed in 2011, but a Fox executive confirmed that the network was not aware of the allegations until reading the Post’s report Monday.” (Aside: Note the not so subtle implication that Fox was too dumb to be on the alert for such things, an implication which will we shortly see is totally unwarranted, pun intended.)

That same day, Marimow’s dispatch entitled “Justice Department’s scrutiny of Fox News reporter James Rosen in leak case draws fire” contained the exact quoted sentence.

The obvious question remained: If the Affadavit for warrant was unsealed 18 months ago, why didn’t anyone know about it?

On Tuesday, I emailed Ms. Marimow as follows:

I’ve searched through your coverage of the Fox-DOJ-Kim situation, and have yet to find any indication of what specifically triggered the story.

Was it DOJ releasing previously sealed documents, or is it something that you or one of your sources discovered or uncovered on your/their own?

If the answer to the previous question is the latter, how long have you known the particulars of the Rosen case to the level of them constituting a reportable story?

If you would be so kind as to answer these questions, I would be most grateful.

I didn’t expect a response, and haven’t received one.

However, Marimow’s next report on Wednesday showed that I had good reason for asking my questions. The warrant wasn’t really unsealed until just days ago:

Judge apologizes for lack of transparency in James Rosen leak probe

The chief judge of the District’s federal court issued an unusual order Wednesday, apologizing to the public and the media for not making certain court documents widely available online.

The gesture of transparency by U.S. District Judge Royce C. Lamberth comes at a time when the Obama administration is under scrutiny for an unprecedented number of leak investigations, including one showing that the Justice Department had secretly probed the news-gathering activities of Fox News reporter James Rosen.

The investigation of Rosen was first reported Monday, after The Washington Post obtained court documents containing details of the case.

A federal judge had ordered the documents unsealed in November 2011, but they were kept sealed for 18 months and not posted on the court’s online docket until last week, after The Post inquired about them.

In other words, Ann Marimow’s three-day claim that “The warrant was unsealed in 2011″ is false. The Post has not corrected the errors in her reports which made that claim.

So how did Post even know to inquire about these documents? Better yet, how long has the Post known that the document showing that the Obama administration’s Justice Department went to extraordinary and unprecedented lengths to potentially prosecute a reporter who, according to one person Marimow quoted, was just “asking for information,” something which has never been deemed a crime,” was there? It was supposed to have been unsealed a year before the presidential election, but wasn’t. The public deserves to know whether the Post knew of its existence before the election, and if it did, why it decided not to go looking for it until now.

The plot thickens:

Lamberth blamed a series of administrative errors and said a review of the “performance of the personnel involved is underway.” He also said he was creating a new category on the court’s Web site where all search and arrest warrants will be made public unless they fall under a separate sealing order.

Lamberth is a strict constructionist, no-nonsense judge whom the Clinton administration spent a great deal of poitical capital smearing during the 1998-1999 impeachment saga. It appears that the non-publication of the unsealed Affadavit for Warrant took him completely by surprise, and that somebody among “the personnel involved” might have unilaterally and without authorization decided not to publicize it, and perhaps even failed to internally note its existence.

If this Affadavit for Warrant’s existence had been publicly known before the 2012 presidential election, it arguably would have changed the entire course of the presidential campaign. The public needs to know if someone in Lamberth’s court deliberately hid it from scrutiny to protect an incumbent presidential administration.

Today, I sent Ann Marimow another email (words in parens have been added for readability):

Well, why didn’t you (originally) tell readers that the (unsealed in) 2011 Fox-DOJ warrant wasn’t released until you/WaPo asked about it?

And why didn’t you (originally) let anyone know that the warrant had been sealed since 2011 outside the bounds of normal procedures?

Finally, why didn’t you (previously) ask anyone at the court why the warrant had been sealed for no apparent justifiable reason, i.e., why did Judge Lamberth have to break the ice on this obviously important story element?

Would appreciate answers to these questions by this evening at 9 ET.

I didn’t expect a response, and haven’t received one.

Cross-posted at NewsBusters.org.

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2 Comments

  1. Missing the bigger story? An FBI agent knowingly falsely accuses a reporter in order to get a search warrant and wire taps. The FBI knows that a reporter going about their normal business does everything what Rosen does. Hence, a false criminalization of normal journalistic practice, i.e. a false accusation. The agent knowingly made this false representation to a judge in order to going on a fishing expedition which is precisely forbidden by law to circumvent the legally established practice of having a judge decide if the evidence or accusation rises to probable cause to allow the invasion of privacy which is normally forbidden to law enforcement.

    Creating a pretext to deceive the Court is a crime and both the FBI agent in question and the prosecution attorney are guilty. Holder, whether before or after the fact of the deception used his office to continue a KNOWN deception as Attorney General Holder would have know it is illegal to create a pretext out of whole clothe to deceive a judge since to support extending the invasion of privacy necessarily requires him to know the initiating event.

    Comment by dscott — May 25, 2013 @ 5:50 pm

  2. Depends on what you mean by “bigger.”

    It’s NOT the FBI guy’s job to determine if a reporter’s behavior is “criminal.” He might surmise that and communicate that to the DOJ attorney drafting the warrant, but it’s the atty’s decision to evaluate its truthfulness in the context of the law and precedent.

    Yes, it IS big that such a warrant was obtained. It is also BIG that the warrant was unsealed for 18 months and we didn’t find out about the warrant’s existence until 6 mos. after Obama was reelected.

    Which one’s bigger? Both in their own way.

    Comment by Tom — May 25, 2013 @ 6:31 pm

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