Kim's lawyers also claim that the FBI set a "perjury trap" by asking Kim about meetings with a journalist, apparently Rosen, when the FBI already knew about the meetings. Justice Department guidelines suggest that perjury or false statement charges should not be brought when the only false statement a suspect made amounts to a denial of another crime. In other words, prosecutors shouldn't gin up an extra charge against an alleged drug dealer simply by asking him if he's a drug dealer and getting him to deny it.What was less than clear then--and now is quite clear--is how the FBI came to know so much about the specifics of these meetings. The FBI was culling the e-mail account of James Rosen, thanks to a search warrant approved by Federal Judges in the United States District Court for the District of Columbia (the DDC). That warrant was applied for by Ronald Machen, the US Attorney for the District of Columbia--appointed by Obama in December of 2009 (confirmed by the Senate in February of 2011)--in May of 2010.
The warrant was initially approved by Magistrate Judge Alan Kay, but with the proviso that the subject of the e-mail search--James Rosen--would be informed once the records were unsealed (Judge Kay agreed to keep the records sealed for a a time). Machen objected to this conclusion: he did not want to be forced to reveal to Rosen that the latter was being targetted, so Machen took the ruling to another Judge in hopes of getting that element changed.
This second Judge in the chain was Magistrate Judge John M. Facciola. Unfortunately for Machen, Judge Facciola concurred fully with Kay, writing:
Such notice may be delayed, as Magistrate Judge Kay has provided, according to 18 U.S.C. § 3103a(b) and that period of delay may be extended upon motion to the Court for such extension. Nevertheless, eventually, the subscriber of the e-mail account to be searched shall receive a copy of the warrant as notice pursuant to rule 41(f)(1)(c).For purposes of understanding the above, here is the relevant statute from the U.S. criminal code:
(b) Delay.— With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if—
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705, except if the adverse results consist only of unduly delaying a trial)
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period not to exceed 30 days after the date of its execution, or on a later date certain if the facts of the case justify a longer period of delay.Section 2705 spells out the valid reasons for requesting a delay in notification, but generally limits such delays to ninety days, at which point another application is required--showing cause--to continue the delay.
Machen, still not satisfied (because he simply did not want Rosen to know about the search), appealed the decision again, this time coming before Judge Royce C. Lamberth, Chief Judge of the
DDC. And from Judge Lamberth, Machen got exactly what he wanted: the ability to indefinitely postpone notifying Rosen of the search.
The justification for this--that Lamberth accepted--hinged on the idea of Rosen being engaged in criminal wrongdoing. The wording of the request specified Rosen as an "aider, abettor, and/or co-conspirator" and sought near-unlimited access to all of Rosen's e-mail, as Ryan Lizza correctly reports (first time for everything, eh?):
Among other things, the search warrant requested access to:Going back to the original story from Rosen that started this all, the question must be asked: what was in it that represented such an apparently egregious leak? The answer? Rosen's claim that North Korea was preparing another nuclear test. That's it. That's the big secret Kim let slip to Rosen, a storyline that has been so common in the news as to be almost run of the mill in its implications.
—“Records or information related to Stephen Kim’s or the Author’s knowledge of laws, regulations, rules and/or procedures prohibiting the unauthorized disclosure of national defense or classified information.”
—“Any classified document, image, record, or information, and any communications concerning such documents, images, records, or information.”
—“Any document, image, record, or information concerning the national defense, including but not limited to documents, maps, plans, diagrams, guides, manuals, and other Department of Defense, U.S. military, and/or weapons material, as well as sources and methods of intelligence gathering, and any communications concerning such documents, images, records, or information.”
—“Records or information related to the state of mind of any individuals seeking the disclosure or receipt of classified, intelligence and/or national defense information.”
In addition, the Justice Department searched the account for any Internet services Rosen may have accessed and records of “data transfer volume,” suggesting the government was looking for evidence that Rosen downloaded large quantities of potentially classified information.
But because of that, an investigation was opened on Kim and Rosen under the Espionage Act. Kim was actually charged with leaking classified materials and Rosen's e-mails were put under government surveillance for literally years, extending even beyond the formal charging of Kim. It's a mind-boggling display of arrogance on the part of Justice. As we know, Attorney General Eric Holder knew about the search warrants from the beginning; thus we can only assume he approved of Machen's actions.
Now, about the players in this little drama. First, there is Ronald Machen. As I noted above, Obama appointed him to his post in late 2009 (after Rosen's piece had come out, by the way). Prior to that, he was a partner in a DC law firm, but had served as an assistant to Holder when the latter was Deputy Attorney General under Clinton form 1997 to 2001. He's also a Harvard grad, of course.
Next, there is Magistrate Judge Alan Kay, the man who first approved the search warrant for Rosen's e-mails. Judge Kay came to the DC bench in 1991. His past most notable rulings involved Guantanamo Bay. In particular, his ruling in Salim Muhood Adem v. George W. Bush was critical of the Administration's attempt to prevent detainees from accessing legal representation. The ruling was extensively reported on and criticized by FoxNews back in 2006.
After Judge Kay, we have Judge John M. Facciola, who very clearly denied Machen's request to keep the search warrant secret from the subject of the search. Judge Facciola became a Magistrate Judge for the DDC in 1997. Prior to that, he had been a District Attorney in Manhattan and had worked for the U.S. Attorney's Office, proper. Judge Facciola is something of an expert on the matter of electronic surveillance and discovery when it comes to the law. It is surprising to say the least that another judge would over-rule his opinions on such matters.
And that other Judge is Royce C. Lamberth. Appointed by Reagan in 1987, Judge Lamberth is certainly the most senior of the three. Moreover, he also served as the Presiding Judge on the FISA Court from 1995 until 2002, no small thing given the time period. But despite Judge Lamberth's initial approval of Machen's request to delay informing Rosen indefinitely of the e-mail searches, he has since apologized for not releasing the documents--including the warrants--in late 2011, when he was ordered to do so in the ruling of another Judge in the Kim case.
The timeline on all of this is important as well. Rosen's story came out in June of 2009. Yet somehow, the investigation into the story--and the searches of Rosen's e-mail--was spearheaded by a U.S. Attorney who did not even work for the U.S. Attorney's Office until some six months later. The search warrant itself was not applied for or approved until May of 2010, almost a year after the story came out (and had become old news, at best).
Machen's actions are easy enough to characterize: he's the proto-typical over-zealous prosecutor, eager to please his superiors (Holder and Obama) and willing to bend--if not fracture--some rules and standards along the way. He found partial help in this regard with a Judge who had an ax to grind with FoxNews--Kay--who probably should have recused himself from the matter. But even then, Kay knew Rosen had a right to be informed at the search, later if not sooner. That opinion was confirmed by another Judge--Facciola--who is an acknowledged expert on the very issue in question. Machen, undaunted by these setbacks, pushed harder and found an old school judge from the Cold War years--Lamberth--willing to give the Feds the benefit of the doubt, likely because of the implied threat to national security (even if no such threat ever existed).
For a moment, imagine if all of the above had occurred during the Bush years, under an Attorney General like John Ashcroft. There would be no excusing, no justifying of any of this from any corner of the media. People like Ryan Lizza wouldn't just be pointing out the facts, they's be screaming bloody murder--day and night--for Ashcroft's head on a plate (and probably Bush's as well). Machen went too far because he was allowed to go too far. Holder should have reined him in from the beginning. Barring that, once Machen started judge-shopping to get what he wanted, Holder should have ended the entire investigation.
There is no evidence--zero--that anything significant with regards to the Kim case came from Rosen's e-mails. And there is no evidence that Rosen was acting with criminal intent; Justice has already admitted it never had any intent to charge him. Thus, there is no valid excuse--according to the U.S criminal code--for the delay in informing Rosen of the search and providing him with a copy of the search warrant, which is his legal right.
Amazingly, Holder's constant claims of ignorance have protected him from fallout due to various failings at Justice (when really, ignorance should be a reason to get rid of somebody in such an important position). But he can't go to that well here. His finger prints are all over this. And he needs to go down for it.