Judge Napolitano: Naming Fox's Rosen a Possible Criminal Is 'Chilling'

Monday, 20 May 2013 06:14 PM

By Greg Richter

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The naming of a journalist as a possible co-conspirator in a criminal case of leaked classified information is "chilling," Judge Andrew Napolitano says.

"The Supreme Court has ruled that when the government makes it difficult for you to do your job as a journalist by scaring off your sources or watching your every move, that’s called 'chilling.'" Napolitano said Monday on Fox News Channel. "Chilling is a constitutional phrase meaning the government hasn't directly silenced me, but it's made it more difficult for me to speak."

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Fox News correspondent James Rosen was named a possible co-conspirator in a Justice Department affidavit, it was learned Monday. His personal emails were searched as part of the investigation.

GOP strategist Karl Rove, also speaking Monday on Fox, called the investigation of Rosen and the possibility of criminal charges "beyond the pale."

Napolitano, a former New Jersey Superior Court judge and analyst for Fox News Channel, said it was not a crime for a journalist to ask for, receive, or publish classified information. Nothing in the affadavit claims Rosen did anything more than what journalists are legally allowed to do as part of their jobs, he said.

"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," Napolitano said.

Though it is a crime for someone to give classified material to a person who does not have clearance to see it, it is not a crime for the person to receive it if that person is a journalist, he said. "It’s just terribly wrong to tell a federal judge that that journalist engaged in criminal activity, when we know from Supreme Court opinions from the Pentagon Papers to the present, James's activity is absolutely protected by the First Amendment."

Napolitano said that when a search warrant is issued, the person who is the target must be told. Rosen and Fox News did not learn of the subpoena of his emails until they read about it Monday in The Washington Post. The request for a search warrant was issued on May 28, 2010.

"The government has an obligation to report this to the target, James, and to anybody else involved – Fox, the computer server, whoever else might be involved – within a reasonable period of time," Napolitano said.

Latest: Is Benghazi a Cover Up? Is Obama at the Heart of It? Vote Here

Depending upon which statute the government used, when the information is in the hands of a third party, such as a computer server, investigators have an obligation to tell the subject of the probe beforehand so it can be challenged, he said. "They didn’t tell anybody."

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