Fox Disputes Justice Department's Stand On Subpoena

The Justice Department is at a standoff with Fox News over whether it informed the cable channel and its parent company News Corp. of a wide-ranging subpoena for a Fox reporter's phone records. Fox said it was taken by surprise. But the Justice Department said it told News Corp. by email, fax and certified letter of the subpoena — and told reporter James Rosen directly.

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When it was revealed recently that the Justice Department had secretly seized records belonging to journalists, part of an effort to end high-profile government leaks, it sparked a huge debate about press freedom. But in one of the cases involving Fox News, there is a disagreement. Justice officials say they told Fox they were about to obtain telephone records for one of its senior reporters. The man at the center of the story has a different version of events, as NPR's David Folkenflik reports.

DAVID FOLKENFLIK, BYLINE: Last week, Fox News expressed surprise and outrage that prosecutors had secured James Rosen's phone records as part of a leak inquiry in 2010. Fox officials said they learned Rosen's records had been compromised from media reports. Over the holiday weekend, however, Justice Department officials said they had notified Fox News's parent company, News Corp. I decided to talk to the man at the middle of the muddle.

LON JACOBS: My name is Lon Jacobs, and until June of 2011 I was group general counsel at News Corporation.

FOLKENFLIK: The subpoena termed Rosen a possible aider, abettor and co-conspirator in a crime, as investigators sought his source for a sensitive story involving North Korea. Jacobs told me he had no recollection of being told of a federal subpoena. He says that would be a big deal and that he would have informed Fox News chairman Roger Ailes instantly.

JACOBS: I'm not disputing the Justice Department, but there's no record that we ever received any relating to this.

FOLKENFLIK: News Corp initially said it was looking into what it called an oversight - that is, why its legal department had not passed along the information to Fox News. Then the company said it had reviewed records for Jacobs and others and found nothing. Yesterday, a federal law enforcement official told NPR the Justice Department sent Jacobs a certified letter and a fax just past 4:00 p.m. on August 27, 2010. The Justice Department was said to have sent a similar email to James Rosen's work account 11 minutes later. Fox News says Rosen received no such email. The subpoena was approved by Attorney General Eric Holder in May 2010. The target of such subpoenas are supposed to be informed within 90 days.

JAMES GOODALE: What good does that do anybody to know X months after the damage has been done? They've already got all the information they want.

FOLKENFLIK: James Goodale, author of the new book "Fighting for the Press," on the relationship between the government and the media, was the New York Times general counsel amid the landmark Pentagon Papers case. He says the Justice Department in the Obama years surpasses the Nixon White House in its disdain for the press.

GOODALE: I would describe it as draconian, overbroad, and not done with any sensitivity to the rights of reporters.

FOLKENFLIK: Rights? What rights, asked Walter Pincus, a long-time investigative reporter for the Washington Post.

WALTER PINCUS: We shouldn't make believe we're different than everybody else.

FOLKENFLIK: Pincus says reporters need to take precaution to protect sources and to prepare to face legal consequences themselves.

PINCUS: The larger issue is the leak and the person who leaked. It's not the press. But we tend to turn it into a press issue.

FOLKENFLIK: Yet as dozens of media companies have united to condemn the Obama White House, News Corp is still puzzling over what happened. Lon Jacobs says it's not every day you learn the records of one of your reporters has landed in a national security leak case. That, Jacobs says, he would have remembered. David Folkenflik, NPR News, New York.

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