Updated 7:34 p.m.
With the U.S. Department of Justice under fire for secretly obtaining Associated Press phone records, a newly unsealed court document in Washington revealed that federal prosecutors seized far more than phone records in one pending leak case.
The Justice Department's investigation into leaks about classified information about North Korea in 2009 also looked at a Fox News reporter's security badge access records at the State Department building and his personal emails, according to a search warrant affidavit.
An investigation into government adviser Stephen Jin-Woo Kim also targets the news reporter for a criminal statute related to “gathering, transmitting or losing defense information,” which is punishable by up to 10 years in prison. The Washington Post, which first reported on the affidavit that was unsealed in 2011, identified the reporter as James Rosen of Fox News.
In the search warrant affidavit filed in the U.S. District Court for the District of Columbia, FBI agent Reginald Reyes wrote there is probable cause that Rosen had broken the law “as an aider, abettor and/or co-conspirator.”
Reyes said Rosen encouraged Kim to disclose sensitive material "by employing flattery and playing to Mr. Kim's vanity and ego," and they concealed their communications by using aliases in their emails, the affidavit states.
The search warrant sought all of the reporter's personal Google emails for a two-day period, as well as all emails between him and Kim.
"The FBI has exhausted all reasonable non-media alternatives for collecting the evidence it seeks," Reyes wrote in the affidavit.
A federal judge signed off on the search warrant for Rosen's Google email in May 2010. The affidavit says that the June 2009 news report disclosed top secret information that remains secret today. Rosen, a Washington correspondent for Fox, has not been charged with a crime.
The White House and Justice Department have been under fire since revelations last week that prosecutors, investigating a ¬potential leak of classified information to the media, secretly obtained Associated Press phone records.
The issuance of subpoenas, without giving the AP a chance to negotiate disclosure or mount a legal challenge in court, drew intense criticism from news organizations and Republicans and Democrats in Congress that prosecutors overstepped their authority.
Last week, Attorney General Eric Holder Jr., testifying at the House Judiciary Committee, was dismissive of the idea that prosecutors have their eyes on criminal cases against reporters.
After remarks from Representative Hank Johnson (D-Ga.) about how the Espionage Act would allow the prosecution of news reporters, Holder said it wouldn't be "a wise policy."
"The focus should be on those people who break their oaths and put the American people at risk, not reporters who gather this information," Holder said. "That should not be the focus of these investigations."
On Sunday, Gary Pruitt, the Associated Press president and chief executive, blasted the Justice Department for how prosecutors handled the seizure of the phone records.
Pruitt, speaking on the CBS News program "Face the Nation," argued prosecutors were first obligated to contact the AP, under DOJ guidelines, to announce the government's intent to review press records. DOJ officials said there’s an exception to the rule—giving prosecutors flexibility to delay notification if early disclosure could threaten the integrity of the investigation.
Pruitt said Sunday "the government has no business having control over all, monitoring all of this newsgathering information from the Associated Press." He continued, saying that "if they restrict that apparatus—you're right—the people of the United States will only know what the government wants them to know and that's not what the framers of the Constitution had in mind when they wrote the First Amendment."
The litigation in the Kim case in Washington has presented its own challenges for the defense and prosecution, as the sides try to navigate their way through a case that's teeming with thousands of pages of classified information.
Numerous documents in the case have been filed under seal. In some instances, prosecutors have only given certain information to the presiding judge. At one point last September, Kim's attorneys sounded off against the government over secrecy.
"The adversary process is the cornerstone of the American system of justice," a lawyer for Kim, Abbe Lowell of Chadbourne & Parke, said in court filing. "Courts routinely disfavor ex parte proceedings, permitting them in only the rarest of circumstances."
U.S. District Judge Colleen Kollar-Kotelly in December set a May 23 status hearing. Several motions are pending before the judge, including Kim’s effort to have his statements deemed ineligible for use at trial.
Kim's lawyers and prosecutors, including assistant U.S. attorneys G. Michael Harvey and Jonathan Malis, said in a recent court filing that the case poses "complex and sensitive" issues. Any trial, the attorneys in the case said, won't happen before early 2014.
Mike Scarcella contributed to this report.