The New Yorker’s Ryan Lizza, a bulldog on the DOJ/Fox News secret subpoena story, reports that the effort by the Justice Department to obtain the controversial court order was arduous, contentious and unsuccessful until finally a third judge acquiesced.
The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay. Otherwise: “The 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 e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama Administration’s argument.
Machen appealed that decision, and in September, 2010, Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, granted Machen’s request to overturn the order of the two judges.
Lizza goes on to explain that Holder’s Justice Department argued to the court that reporter James Rosen was a co-conspirator in a conspiracy to commit espionage and lists the detailed information they wished to explore:
—“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.”
The revelation that two courts denied the secret subpoena before Lamberth finally agreed will damage the narrative that there was nothing extraordinary or out-of-bounds about Holder’s attempt to delve into the private communications of Rosen and his employer.
Read the entire story here.
(H/T Jim Hoft)