DOJ Told News Corp. Of Rosen Subpoena, But Its Legal Counsel Wasn't Informed


Ok, so the DOJ confessed to informing News Corp. of the Rosen investigation in 2010, which is why some liberals took to their laptops to blog about how this scandal really isn’t a big deal.  Ryan Lizza of the New Yorker, who’s done some great reporting on this fiasco, feels differently.  On May 27, he wrote a pretty thorough post about the DOJ admission, and noted that News Corporation’s legal counsel wasn’t informed about the search into James Rosen’s emails.


Left-wing rag Mother Jones, which Lizza went after for their blasé attitude towards this scandal, was typical in their response to this development on May 25.

There’s also this interesting tidbit from the same story:

While Fox News was informed nearly three years ago about the subpoena for call logs for five lines related to Mr. Rosen — apparently after the phone company had already provided them — it did not publicly disclose the action. Instead, it emerged only this month when court papers were unsealed that also showed that the government had separately obtained a warrant for the contents of Mr. Rosen’s private e-mail account. A lawyer and spokesmen for Fox did not respond to requests for comment.

So Fox has known about this since 2010. They only went public with the outrage when it became convenient to slot it in as part of Scandalmania™. How about that.

Yet, Lizza aptly noted in his May 27 post that:

[W]hile the Nixon and George W. Bush Administrations talked about the possibility of holding journalists criminally liable for reporting classified information, Obama’s is the first Administration to make the argument in federal court. While the Justice Department didn’t indict Rosen, it carefully laid out the legal case for charging him as spy, a dangerous precedent that will undoubtedly tempt future prosecutors.

This is a big deal. A journalist was basically called a spy, which was the pretence for the warrant into his emails.  Furthermore, the DOJ may have informed News Corp., but its legal counsel wasn’t happy with how these events were detailed by the media.  After all, it matters when you were never informed of the subpoena.


Lawrence A. Jacobs, who was the actual legal counsel for News Corp. back in 2010 when Justice allegedly sent the notification…almost immediately…went public with a story that contradicted the account being peddled jointly by Justice and News Corp.

He told NPR, the Los Angeles Times, and the New York Times that he never received the notification, and that if he had he would have immediately told Roger Ailes, the head of Fox News. On Monday, Jacobs told me the same thing.

“If I had seen it, I would remember having seen it, even though it was three years ago. The first thing I would have done is call Roger Ailes,” Jacobs said. “What possible motive would I have to sit on this? If the Justice Department really wanted to make sure Fox News was aware of it, why didn’t they send it to Fox News and why didn’t they follow up with the company they sent the fax to? I’m not calling them liars and I’m not saying they didn’t send it. I’m just saying I never saw it. I can’t believe I wouldn’t remember receiving a certified letter from the Justice Department.”

Privately, Jacobs and News Corp had heated conversations over the weekend in which the company’s former lawyer demanded that News Corp. clarify its position on the matter. Perhaps there was a letter and fax and e-mail; by Sunday, though, News Corp. had reversed course and issued a new statement, first reported by the Los Angeles Times yesterday afternoon. But even then, News Corp.’s response was surprisingly deferential to Eric Holder’s Justice Department: “While we don’t take issue with the DOJ’s account that they sent a notice to News Corp., we do not have a record of ever having received it. We are looking into this matter.”


Lizza wrote that this failure in communication could be due to News Corporation’s 2011 phone hacking fiasco across the pond in the UK.  As such, their settlement talk to resolved this matter could take an “awkward” turn if they decide to unload on Holder.

While there has been little attention paid of late to any legal liability News Corp. might face here in the United States, Bloomberg Businessweek recently noted the following:

In the U.S., the Department of Justice continues to investigate News Corp. under the Foreign Corrupt Practices Act (FCPA), a law that makes it illegal for U.S. companies to offer gifts or payments to government officials overseas to gain a competitive edge. “Certainly, within News Corporation, there remains a persistent, if not a paranoid, fear that the Department of Justice is going to move against them,” Wolff says. “The ultimate resolution has yet to take place.”

In 2011, News Corp. hired D.C. law firm Williams & Connolly to handle the FCPA investigation. In March, the Wall Street Journal reported that in addition to looking into the phone-hacking and police bribery charges in London, the DOJ has also been investigating allegations that Journal employees in China gave gifts to government officials in exchange for information. According to the Journal, the federal probe is nearing completion—possibly setting the stage for Williams & Connolly and the government to begin negotiating a settlement. “You hire Williams & Connolly because it says, ‘We are local, we get the game, and we are innocent. Oh, and by the way, if we’re not, we can work out a deal,’” says Levick, the crisis management fixer in Washington.


It seems that Rosen is truly alone in this case.  The government went after him, and his employer seemingly kept that information from him.



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