DAVID GREENE, HOST:
The White House is defending itself - again - against charges that it's trampling on the First Amendment. The Justice Department obtained a portfolio of information about a Fox News reporter's conversations and visits. Obtaining this information was part of an investigation into a possible leak. A federal prosecutor said the reporter, James Rosen, had conspired in the commission of a crime. We have more from NPR's David Folkenflik.
DAVID FOLKENFLIK, BYLINE: Fox News has long been an irritant to the Obama White House, but the questions from the entire White House press corps got pretty pointed yesterday.
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MAJOR GARRETT: The subpoena says James Rosen is a potential criminal because he's a reporter. Is the White House comfortable with that standard, never before seen in a leak investigation?
FOLKENFLIK: That was Major Garrett, of CBS News. As other reporters pelted White House press secretary Jay Carney with similar questions, he professed respect for reporters and the First Amendment, but he said another obligation also confronted government officials.
JAY CARNEY: We need to make sure that leaks are not tolerated because leaks - they can endanger the lives of our men and women, and endanger our national security; need to be taken very seriously.
FOLKENFLIK: The reporter, James Rosen, got caught up in a federal investigation into a State Department analyst believed to have leaked information to him about North Korea's nuclear ambitions. No one questions the legal right of prosecutors to obtain the records of the analyst, Stephen Jin-Woo Kim. But the Washington Post revealed Monday that the federal government had also obtained a warrant in May 2010 from a judge, for Rosen's telephone records and emails, too.
A Fox executive told NPR that the network learned of the warrant yesterday, three years later, in the pages of the Washington Post. Fox called it chilling. Here's Hearst Corp. general counsel Eve Burton, considered one of the leading corporate First Amendment lawyers in the country.
EVE BURTON: It appears to be that there's a possibility, at least, in the minds of some - prosecutor, that there is a right to criminalize what reporters do every day; which is talk to sources, and to provide the public with valuable information.
FOLKENFLIK: This is just the latest leak investigation pursued by this Justice Department. But Burton notes the affidavit called the Fox reporter an aider and abettor and/or a co-conspirator in the crime. If, Burton says...
BURTON: ...that becomes a federal crime, merely by picking up the phone and asking the question, we are in for some very dark days ahead.
FOLKENFLIK: It's ironic, says former U.S. Attorney Joe Russoniello, given President Obama's pledge to preside over the most transparent administration in American history. But he says the law is not on the reporter's side.
JOE RUSSONIELLO: It's not like we're talking about that there's a privilege between a newspaper person and his or her source. It just doesn't exist. I mean, they've been fighting for it; a lot of people would like to see it. It just isn't there.
FOLKENFLIK: Russoniello says reporters shouldn't kid themselves. At least in principle, they could be prosecuted.
RUSSONIELLO: Receiving stolen property is a very good example.
FOLKENFLIK: If you consider classified information the stolen property, he says, the reporter is like a fence - and open to prosecution. Leonard Downie Jr. was executive editor of the Washington Post for 17 years. He says reporters aren't the only ones to worry about.
LEONARD DOWNIE JR.: It's potentially very discouraging to government officials who may have important information to tell members of the press.
FOLKENFLIK: Taken with other cases, Downie has reached a stark conclusion.
DOWNIE: The witch hunt that has been going on for leakers in this administration, is going beyond what the law requires.
FOLKENFLIK: The Justice Department may believe it needs to use this power to root out leaks. But in the process it has unified Fox pundits who attack the White House daily with the rest of the press corps, in criticism of the Obama administration.
David Folkenflik, NPR News, New York. Transcript provided by NPR, Copyright NPR.
