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May 28th, 2013
06:59 PM ET

First Amendment expert: Justice Department overstepped bounds in pursuit of journalist

The House Judiciary Committee is investigating whether Attorney General Eric Holder lied to Congress earlier this month, according to CNN's chief congressional correspondent Dana Bash.

"In regard to potential prosecution of the press for the disclosure of material – this is not something I've ever been involved in, heard of, or would think would be wise policy," Holder testified before Congress on May 15.

But some are pointing out that the attorney general would have signed off on a search warrant on Fox News reporter James Rosen's personal email account. The search warrant was obtained in part because there was probable cause to believe Rosen had broken a law or acted "at the very least, either as an aider, abettor and/or co-conspirator."

"The Department of Justice has really overstepped the bounds,"said First Amendment expert Floyd Abrams, author of upcoming book "Friend of the Court: On the Front Lines with the First Amendment."

"Accusing a reporter of being a criminal, of violating the espionage act no less, for doing nothing more or less than asking questions of a government official ... That's usually called journalism, not espionage," said Abrams.

There is a genuine national security component in the pursuit of leakers. But, said Abrams, a reporter asking someone who has information to explain what that information is, should not be deemed a crime.

"Maybe 60 years ago, the American Secretary of State Dean Acheson wrote a letter to a journalist and he said 'You're job is to pry. Mine is to keep secret,'" said Abrams.

That division between government responsibilities and those of the press has led to something of a contest throughout the years, said Abrams.

"But never the imposition of the criminal law," said Abrams. "And that's the line I think the attorney general crossed."

Abrams has dealt with this issue for decades. He was one of the lawyers for The New York Times during the Pentagon Papers. In 2011, Abrams interviewed all the government witnesses from the time that would talk with him.

"None could cite a single example of harm sustained by the nation as a result of publication, and some - a number, in fact - commented on benefits from publication," Abrams wrote in his book.

But Abrams said it is hard to know for sure if recent press leaks have hurt the nation.

"Have there been more recent situations where information leaked, that could have hurt national security? I can't deny it," said Abrams. "I just can't come out myself with one example."

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