Roger Ailes is full of self-righteous outrage that the Department of Justice subpoenaed Fox News reporter James Rosen's personal emails as it investigated the leak of classified information about North Korea. It's a recent conversion after leading a news network that has been calling for criminalizing journalism for years.
[Update: The latest in Rosen's case, reported by The New Yorker's Ryan Lizza, is that the government fought to keep the search warrant for Rosen's email secret. Update 2: Justice confirmed late on Friday afternoon that Attorney General Eric Holder personally vetted the search warrant.]
"We reject the government's efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a 'co-conspirator' in a crime," Ailes wrote in a memo to staff that sounds like it came from a press freedom crusader. "The administration's attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time."
Despite Ailes' portrayal of the issue as a fight of the decent vs. the indecent, the criminal investigation of reporters is a policy dispute, not a scandal. There are those, like many media organizations rallying behind Fox News and the Associated Press today, who believe journalists should be free to pursue investigative reporting without worrying that the government will read their emails and scare the sources into silence. On the other side, you have people who think because leaking classified information is a crime, government should pursue leakers with the full force of the law and that sometimes means subpoenaing journalists and their phones and email. That side has included the Obama Administration, the Bush Administration, and (at least until this week) Fox News, which has been decidedly, and consistently, come down on the side of hunting down and prosecuting leakers.
Fox executives are presenting the DOJ investigation as a sudden criminalization of the press. Ailes said, "We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth." Likewise, Fox News' executive vice president of news Michael Clemente said in a statement on Monday, "We will unequivocally defend [Rosen's] right to operate as a member of what up until now has always been a free press." Fox's personalities are projecting the same outrage. "This is a farce," anchor Megyn Kelly said this week. "The question is whether that is a designed campaign as part of a larger effort to silence the media that are critical of this administration." But it was this press freedom that Fox covered as a major scandal last year.
You may have forgotten, but the Obama Justice Department's investigation into national security leaks was a major issue in the 2012 election. Republicans are not known for championing press freedom, but the real push for squashing leaks built up steam last June after New York Times chief Washington correspondent David Sanger published a book, Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power, which Republicans felt made the Obama look too much like a terrorist-fighting tough guy. So they started calling for investigations and rules to prevent officials from talking to reporters.
On June 14 last year, Fox News host Greta Van Susteren turned to former Defense Secretary Donald Rumsfeld for help figuring out who the leakers were and what to do with them. "Everything I can tell watching it, as an observer of these things, is that it did not come from the Department of Defense and did not come from the CIA," Rumsfeld said. "It looks to be out of the White House." "But what should happen to someone who does leak like this?" Van Susteren asked. "They can be prosecuted criminally for breaching security classifications," Rumsfeld said. "I mean, we've sent people to jail for -- for violating security and for compromising classified information."
And it was clear where Fox News stood on this matter: they were not concerned about enabling President Obama as a Nixonian crusher of press freedom. They worried he wasn't cracking down on national security leaks to reporters aggressively enough. In June, the Justice Department had appointed two lawyers -- one a Bush appointee, the other an Obama donor -- to investigate the leaks. Both Fox News reporters and pundits suggested a special prosecutor would be better suited to bring justice to the leakers. This was a major story on Fox for months. Bret Baier lead his 6 p.m. show with updates on the story three nights in a row in late July. On Baier's August 10 show, Fox national correspondent John Roberts said, "[John] Brennan allowed that the president admonished his staff not to leak information and feels anybody involved in leak of classified information should be prosecuted. Is the president doing enough on this?"
That this was a criminal matter was evident to many Fox pundits. On The O'Reilly Factor June 12, Monica Crowley worried, "The idea that this administration would investigate themselves on these national security leaks when they are the ones who leaked it is outrageous, and we do need a special prosecutor." Bill O'Reilly agreed, "I think so, I think we need a special prosecutor." On Sean Hannity's show June 15, The Wall Street Journal's Bret Stephens implied people needed to go to jail: "It's like we are talking about prosecuting Bradley Manning for all of the leaks to Wikileaks, but this has become a Wikileaks administration in and of itself." Bill O'Reilly suggested the leak about how the U.S. used the Stuxnet virus against Iranian nuclear reactors in particular "was extremely damaging to the United States of America and whoever did it should go to prison for a long time," in his "Talking Points" segment on June 14.
Now, it's true that none of the Fox News personalities and guests who were in favor of a special proseuctor hunting down the leakers actually called for sending David Sanger to jail. But James Rosen wasn't the prime focus of the Department of Justice's investigation, either. The reason the FBI went through his email and checked his security card swipes at the State Department was to figure out who gave him the CIA report on North Korea: analyst Stephen Jin-Woo Kim, who was charged under the Espionage Act in 2010. In the nearly three years since that indictment, Fox News was mostly mum about one of its sources being prosecuted. But the case shows how quickly prosecutors, charged with enforcing laws protecting national security secrets can switch from targeting sources to journalists in leak investigations. In the affidavit for the search warrant for Rosen, the FBI agent on the called him "at the very least, either as an aider, abettor and/or co-conspirator" in the crime. Or, as an Obama administration official told the blog Lawfare earlier this week, "he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so."
And, in fact, Fox News has, since 2008, had someone on the payroll who understands the perils for journalists once prosecutors begin hunting for leaks: Judith Miller, the ex-New York Times correspondent who went to prison in 2005 rather than give up her sources during the investigation into the leak of the classified identity of Valerie Plame, wife of Iraq war critic Joe Wilson. She went on air to address the White House leaks matter last summer, and while, not exactly dissenting from the consensus Fox News view that people should go to jail over the Sanger book, she wasn't nearly as zealous in her support of a prosecution.
On that June 15 "special edition" of Hannity about the leaks, which the host called a "state of emergency," Byron York, of The Washington Examiner, argued that the conservative media could get a repeat of the kind of investigation that landed in Miller jail if they just kept talking about the Sanger book leaks. "To have a really big investigation, you have to have a white-hot controversy before it. Think back to the Valerie Plame affair. There was a drumbeat in The New York Times and The Washington Post, on the broadcast networks and on cable, every single day," he said. "And in the end, the Bush administration buckled. They gave Patrick Fitzgerald the investigator, basically, the full powers of the Attorney General to look into this." At the end of the show, Miller mostly concurred, "Look, these are very serious issues and these are serious leaks. And they should be investigated, and they are being investigated." Talking about the case later in August, in a clip that made The Daily Show, she said, "This is the problem. These leaks – especially the kind of leaks that are being investigated now by not one, but two special prosecutors – they are truly injurious to the national security. They jeopardize our security as a nation."
If Fox News was unconcerned about what happened to Miller last summer, they were pretty blasé about her legal troubles back in 2005. On October 16 of that year — after Miller had served 85 days in jail on contempt charges, after her source. Dick Cheney aide Scooter Libby, had released her from her confidentiality pledge, after she testified to a grand jury on what he had told her — Brit Hume, who has the managing editor title at Fox News, said, "It's kind of an intriguing story about her, and how she came to testify, and whether she had a guarantee and all of that. But I don't think the public cares much about that. And as I was reading her story today, it occurred to me that I didn't either."
Fox News also practices what it preaches. Last year, Fox prosecuted its own leaker, former Fox employee Joe Muto, who was rewarded for his brief stint as Gawker's "Fox Mole" with being charged with grand larceny. "The mole shows a culture that believes in theft, a lack of loyalty, turning on his colleagues, lying to management," Fox chief Roger Ailes said. When it comes to intimidating Fox News employees, that's a right Ailes reserves for himself.
As with the 2012 national security leak investigation, Fox News is not concerned with the 2013 national security leak investigation as a policy dispute. They will go back to making dangerous calls for granting "full power" to prosecutions into leaks as soon as the politics change. Fox is about the scandal trade, not a principled policy discussion. That's crystal clear in the case of Bill O'Reilly, who compared Obama to Nixon on both sides of the story, on May 15 this year and on June 14, 2012. "This is shades of Richard Nixon who tried to get away with Watergate by having his cronies like John Mitchell investigate it," O'Reilly said last summer. Obama is Nixonian whether he's cultivating the press or destroying it. But that's OK, Fox News: the First Amendment applies to everyone, even those who don't always believe in it.