Judge Andrew Napolitano

An Assault on Freedom of the Press

By Judge Andrew Napolitano - Thursday, May 30, 2013

The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames.

As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen’s use of “flattery” and his appeals to the “vanity” of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen’s personal email accounts that the feds had sought.

The government’s theory of the case was that the wording of Rosen’s questions to Kim facilitated Kim’s release of classified materials, and Rosen therefore bore some of the criminal liability for Kim’s answers to Rosen’s questions. Kim has since been indicted for the release of classified information (presumably to Rosen), a charge that he vigorously denies. Rosen has not been charged, and the DOJ has said it does not intend to do so.

The government knew that Rosen committed no crime — not as a conspirator nor as an aider and abettor — by asking Kim for his opinion on the likely North Korean response to the then-pending U.N. condemnations of North Korea’s nuclear and ballistic missile tests. By telling a federal judge, however, that Rosen somehow was criminally complicit in the release of classified information by the manner in which he put questions to Kim, the DOJ substantially misled the judge into signing a search warrant, which, when executed, would enable the feds to read Rosen’s private emails. Then, by reading them the feds were led to Fox News telephone numbers in New York City and in Washington, which they since have acknowledged they have monitored.

When asked at a congressional hearing just two weeks ago on May 15 to address this, Attorney General Eric Holder replied: “With regard to the potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of or would think would be a wise policy.”

Whether under oath or not, because Holder spoke in his official capacity before a congressional committee in its official capacity, he was legally bound to tell the truth and legally bound not to mislead the committee. Last Thursday, President Obama in a speech on national security stated, “Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law.” The next day, the DOJ leaked to NBC News the inconvenient truth that Holder had personally authorized seeking the search warrant for Rosen’s personal emails; and over the long holiday weekend, the DOJ confirmed that.

What’s going on here? Isn’t the Attorney General bound by the same laws to tell the truth as the rest of us are? Doesn’t the First Amendment protect from criminal prosecution and government harassment those who ask questions in pursuit of the truth?

The answers to these questions are obvious and well grounded. One of Holder’s predecessors, Nixon administration Attorney General John Mitchell, went to federal prison after he was convicted of lying to Congress. The same Attorney General who told Congress he had “not been involved” in the Rosen search warrant before the DOJ he runs revealed that he not only was involved, he personally approved the decision to seek the search warrant, must know that the Supreme Court ruled that reporters have an absolute right to ask any questions they want of any source they can find. The same case held that they cannot be punished or harassed because the government doesn’t like the answers given to their questions. And the same case held that the if answers concern a matter in which the public is likely to have a material interest, they can legally be published, even if they contain state secrets.

The whole purpose of the First Amendment is to permit open, wide, robust, even unfettered debate about the government. That debate cannot he held in an environment in which reporters can be surveilled by the government because of their flattery. And the government cannot serve the people it was elected to serve when its high-ranking officials can lie to or mislead the congressional committees before which they have given testimony.

The great baseball pitcher Roger Clemens spent a few million dollars successfully defending himself against charges brought by Holder’s DOJ, which accused him of doing what Holder himself has arguably done. Is this the government in a free society? Is this what you expect from the government in a free society? And when reporters clam up because they don’t like the feds breathing down their necks when they reveal inconvenient — or even innocuous — truths about the government, don’t we all suffer in our ignorance?


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9 Responses to “An Assault on Freedom of the Press”

  1. Kate says:

    So, how do we get Holder arrested? If Mitchell was arrested for the same thing so should Holder be arrested. But then, why bother, we're not arresting all the illegal aliens either – they are not adhering to our laws but we're going to reward them by pardoning them which I hope never comes to pass, and no one stops at stop lites or signs anymore either – Laws are what keep our country from turning into the out of control countries we see on the news nightly. Why are our laws not being enforced – this really, really bothers me.

  2. The LookOut says:


    Your Commentary, as Usual is Right on. THANKS

  3. Daniel Joseph says:

    Looking at this another way, this is free speech at work. I was in a third world country watching the Spanish speaking version of CNN with English subtitles along with some locals during the Clinton sex scandals at the White House. I told the locals that I was a little embarrassed that out country was displaying our dirty laundry all around the world for everyone to see in dozens of different languages. The locals told me this was great proof by our nation’s actions that we had freedom of the press in the US. They told they were sure that sex scandals occurred in their country. But if a reporter in their country would report on a sex scandal, the reporter would disappear. Reporters knew not to report damaging stories.

    The fact that the truth is coming out and you can write this article is proof that we still have freedom of speech. As my father would have said, Freedom of Speech isn’t free. We must constantly pay a price to protect it.

    Thanks for your courage in writing this article.

  4. george says:

    Just when is the People going to wake up to the fact the the gov. is way too big and thinks it is always right in doing what ever it wants with no punishment at all to the members who if effect want to destroy our freedom and liberty to gain a name for themselves.

  5. Lawrence Ekdahl, says:

    I agree with Kate above. Why hasn't Holder been arrested? Is he above the law? If so, then we are no loger a nation ruled by law but by the whims of men.

    • Gill O’Teen says:

      The entire o'bummer regime has held itself above the Law since at least 2008 (Office of The President-elect, Barack O'bummer Truth Squads). This is the same kommie klutz koven that dropped the charges against those New Black Panthers already convicted of voter intimidation, and selectively enforces the Laws of the United States, even went after Arizona because it wished to simply enforce federal immigration law. We are indeed ruled by the whim of extremely corrupt communists of all 97 politically correct genders, and their end is not in sight.

      As soon as I can figure out how to drop out of sight without leaving others taking the heat, I'm outta here.

  6. bfenn says:

    I say again that the tactics of the present administrations Judicial systems leader, resembles the terrorizing gestapo unit of the infamous Nazi party in the early and mid twentieth century.
    The sooner this "intoxicated with athority" tsar can be replaced with someone of honest intentions, the sooner this country can begin the road back to the true America it once was …..

  7. Rob B says:

    Well written! Thanks for commenting on this situation. I'm afraid that this only falls on the ears of those who are already in agreement with you. Darn it!

  8. Aleae T Pennette says:

    Join my youth education team to transform the mindset of the population from that of collectivism, scarcity, fear, and war to that of individual liberty, abundance, faith and peace. This transformation will take less than three generations with your help. Children ages 9-18 will participate in this program. We will grow thinkers and new leaders who can recognize evil when they see it.

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