As we now know, the DOJ targeted James Rosen when it pursued a search warrant in connection with an alleged leak from State Department adviser, Stephen Kim.  The long and short of it is, Kim told Rosen things, and as a reporter, Rosen printed them.

Speaking on FOX News, Judge Andrew Napolitano said that James Rosen had committed no crime.  As RealClearPolitics captured:

JUDGE ANDREW NAPOLITANO: There is simply no crime. For the FBI to tell a federal judge that James committed a crime by receiving classified information and offering to publish it, even by asking for classified information, is absolutely wrong. […]

James, like all of us who are professionals in this business have an absolute constitutionally protected right to seek news of material interest to the public wherever that news may be.

 

Slate points out just how serious this case is.

This has never happened in this country. (Even in the Pentagon Papers case, several newspapers were served injunctions not to publish stories, but no reporter or editor was ever investigated, much less tried, as a co-conspirator.) If the prosecutors go through with their threat, the entire enterprise of national security journalism—which inherently involves uncovering secrets, to some degree—will be in jeopardy.

A DOJ official said that no charges had been anticipated against Rosen, but the search warrant certainly didn’t seem that way.  It read, in part, “There is probable cause to believe that the reporter has committed or is committing a violation of Section 793(d), as an aider and abettor, and/or co-conspirator, to which the materials relate.”

That DOJ official told the Huffington Post:

DOJ regulations require the attorney general to approve charges against a journalist or the search warrant for journalist phone records, but that regulation does not appear to apply to journalist emails. The DOJ official, who spoke on the condition of anonymity, said no charges against Rosen were anticipated. Language used by an FBI agent requesting a search warrant made Rosen’s reporting activities out to be part of a criminal conspiracy.

“To our knowledge, the Department of Justice has never prosecuted a reporter,” the Justice Department official told The Huffington Post. “No reporter has ever been charged by the Department of Justice simply for publishing information obtained through an illegal leak of classified information by a government official. At this time, we do not anticipate bringing any additional charges in this matter.”

No charges were anticipated, so that made it OK to spy on emails from a news reporter’s private email account, among other things?

While the DOJ has already pursued Kim, who was indicted in 2009 for this very leak, Rosen only found out about this when everyone else did this week.  That said, many questions for the DOJ and this administration still remain.