When U.S. Attorney General Eric Holder decided to unleash the hounds on FOX News reporter James Rosen, he had Ronald Machen, U.S. Attorney for Washington, D.C., go looking for a court order to obtain a warrant that would allow the Department of Justice to subpoena Rosen’s communications without the reporter or his employer ever knowing about it.
Machen was shot down by Judge John M. Facciola, who noted “[T]he subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her email account.”
All the DOJ had to do to get the warrant approved was to let the subject — in this case, Rosen — know that a warrant to subpoena his communications records was being served. But then, that wouldn’t have been much of a secret, and the DOJ would have lost its ability to indefinitely monitor Rosen’s records without detection.
So the DOJ went judge shopping, according to an investigation by Ryan Lizza of The New Yorker. Even though two judges had ruled a secret subpoena wasn’t legal, Machen appealed and got Royce C. Lamberth, chief judge in Federal District Court for Washington, D.C., to reverse those decisions.
Incidentally, Lamberth apologized last week for not making records of the Court’s communication with the DOJ public for a full 18 months — an apology that, of course, came only after the Rosen scandal had broken.
At any rate, how can the DOJ, which answers to President Barack Obama, claim it knew of nothing out of the ordinary in the Rosen case? It had to go to extraordinary measures to get the legal permission it needed to monitor a reporter without his knowledge and without a window of time to limit the reach of the secret investigation.