FBI director suggests Fox reporter unlikely to be prosecuted

The head of the FBI on Thursday told lawmakers that labeling a target of an investigation as a criminal co-conspirator does not indicate a desire to prosecute them.

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“Quite often in search warrants or affidavits in support of search warrants, there are occasions where a person will be mentioned as having culpability, but there will be no discussion or anticipation of prosecution,” FBI Director Robert Mueller said at a hearing before the House Judiciary Committee.

“That could be for a variety of reasons.”

Mueller made the remarks while speaking about the case against Fox News reporter James Rosen.

Mueller stressed he was not familiar with the details of the Rosen case but said, in his experience as a prosecutor, there were instances in which the government would cite someone in an affidavit or search warrant who they did not intend to prosecute.

Committee Chairman Bob Goodlatte (R-Va.) has been investigating whether the Justice Department (DOJ) lied on its search warrant application for Rosen by citing him as a criminal co-conspirator in its leak investigation against a State Department employee.

Goodlatte has argued the DOJ either initially wanted to prosecute Rosen — which Attorney General Eric Holder has repeatedly denied to be the case — or misled the court by over-stating its case against Rosen.

“When you authorize a search warrant for a target of a criminal investigation, doesn’t that mean that prosecution of that target is the objective?” Goodlatte asked Mueller.

Goodlatte pressed the FBI head further on why Rosen would be cited as a flight risk in the search warrant application and be kept in the dark about the execution of the search warrant for 18 months.

Mueller emphasized, while he was not privy to the details of the Rosen case, he was sure that Holder and the DOJ followed the letter of the law and operated appropriately.

“I am not familiar with the full extent of that investigation, in particular to all the facts that were raised in the affidavit or in the discussion as to how one would proceed to get the data that persons wanted,” said Mueller.

“I can say two things. One, that there was great scrutiny given at the local level, I’m sure, to what needed to go into the search warrant and its affidavit, in particular with reference to the judicial requirements for getting those particular records.

“Secondly, there is a standing protocol within the Department of Justice that was adhered to in getting approval for that particular action.”