UPDATE May 23: This article is being substantially updated in light of Chief Judge Royce Lamberth’s unusual apology and explanation yesterday for the clerical errors in federal court in Washington, D.C., which had hidden the public filing described below and others relevant to the case.
Lamberth’s order revealed that while the affidavit seeking a search warrant for Fox News reporter James Rosen’s private email was in fact ordered unsealed in redacted form last November, as we reported, court clerks had failed to enter the unsealed document into the federal courts’ Pacer database until last Thursday. Main Justice first accessed the document a day later, on Friday. We did not realize the clerical error until Lamberth issued his order. Lamberth also said in the order that all unsealed search warrant applications would now be consolidated on the court’s public website, although it will apparently still take some sleuthing to connect those partially redacted document to any related cases.
Our original headline, “James Rosen Criminal Leak Investigation Was Disclosed 18 Months Ago, Hidden in Court Records,” has been changed to reflect the new information.
The FBI affidavit that revealed the Justice Department was criminally investigating Fox News reporter James Rosen in a leak investigation has been in the public record, previously unnoticed, for 18 months was ordered unsealed 18 months ago.
The 36-page affidavit hadn’t been reported by the media until recently, apparently because it and is not on the docket of the main criminal case involving Rosen. Former government contractor Stephen Jin-Woo Kim was indicted in 2010 for allegedly leaking classified information to the Fox News reporter about North Korea’s suspected intention to test nuclear weapons in response to United Nations sanctions. Kim’s case is pending.
Main Justice discovered the affidavit May 17 during a search of Pacer, the online federal court records service, using the search term Jonathan Malis, the Assistant U.S. Attorney in Washington, D.C., who is the subject of our previous report, which can be viewed here.
A clerical error prevented the unsealed document from being made publicly available until May 16.
The affidavit is hidden away under the case title, E-MAIL ACCOUNT (redacted)@GMAIL.COM ON COMPUTER SERVERS OPERATED BY GOOGLE, INC., HEADQUARTERED AT 1600 AMPHITHEATRE PARKWAY, MOUNTAIN VIEW, CALIFORNIA. Case No. 10-00291 was assigned to a federal magistrate judge in U.S. District Court for the District of Columbia.
The affidavit was filed under seal on May 28, 2010, and ordered unsealed more than a year later, on Nov. 7, 2011. Magistrate Judge Alan Kay approved the search warrant application, the court records show. Rosen isn’t named in the affidavit, but he is clearly the reporter referenced. As Judge Lamberth’s explanation shows, the affidavit wasn’t entered into Pacer at the time.
We at Main Justice have a small staff – most of whom are devoted to producing paywall-protected content for our law firm subscribers – and weren’t able to report on the affidavit before The Washington Post beat us to it. But for those wondering why a Justice Department criminal probe of a reporter remained unreported for so long, this is the apparent explanation.
Update May 21: The Washington Post reports that Chief Judge Royce Lamberth issued an order on Nov. 1, 2010 that the U.S. was not required to notify Rosen of the search warrant. That order is listed under another case number – 10-191-M-1 that doesn’t fit any Pacer search parameter, nor is it linked as a related case to the Kim indictment or the case seeking Rosen’s email records from Google. The Post also said that although the affidavit was unsealed in 2011, a Fox executive “confirmed the network was not aware of the characterization of Rosen as a co-conspirator until Monday.”