Did the Government’s Affidavit Label James Rosen (Fox News Reporter) a Flight Risk?

I’ve seen many sources so stating, and some inferring from that the government was indeed contemplating prosecuting Rosen — contrary to Attorney General Holder’s later statements — because, otherwise, why would they worry about his fleeing? But, as I read the affidavit, the government wasn’t specifically saying that Rosen was a flight risk. Rather, unless I’m missing something, the two relevant paragraphs are (emphasis added):

VII. REQUEST FOR NON-DISCLOSURE BY PROVIDER

52. Pursuant to 18 U.S.C. § 2705(b), this Court can enter an order commanding the PROVIDER not to notify any other person, including the subscriber of the SUBJECT ACCOUNT, of the existence of the warrant because there is reason to believe that notification of the existence of the warrant will result in: (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering of evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardize the investigation. The involvement of the SUBJECT ACCOUNT as set forth above is not public and I know, based on my training and experience, that subjects of criminal investigations will often destroy digita1 evidence if the subject learns of an investigation. Additionally, if the PROVIDER or other persons notify anyone that a warrant has been issued on the SUBJECT ACCOUNT, the targets of this investigation and other persons may further mask their identity and activity, flee, or otherwise obstruct this investigation. Accordingly, I request that this Court enter an order commanding the PROVIDER not to notify any other person, including the subscriber of the SUBJECT ACCOUNT, of the existence of the warrant.

VIII. REQUEST FOR SEALING

53. Because this investigation is continuing and disclosure of some of the details of this affidavit may compromise subsequent investigative measures to be taken in this case, may cause subjects to flee, may cause individuals to destroy evidence and/or may otherwise jeopardize this investigation, I respectfully request that this affidavit, and associated materials seeking this search warrant, be sealed until further order of this Court. Finally, I specifically request that the sealing order not prohibit information obtained from this warrant from being shared with other law enforcement and intelligence agencies.

The affidavit is not, I think, asserting that Rosen was a flight risk. Rather, it was asserting that nondisclosure and sealing was necessary because otherwise there was a risk that someone (Rosen or Kim) might flee or something else might happen, including anything that would “jeopardize [the] investigation.” And the possibility that Rosen, a reporter, would do what reporters do — publicize what he learns about the warrant — and thus interfere with the investigation of Kim, strikes me as fairly plausible.

Moreover, the language in the affidavit seems largely drawn from the applicable legal standards, such as 18 U.S.C. & 2705(b):

The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in —
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

So if I’m reading it right, the affidavit simply quoted the statutory standard, with its five alternative bases for nondisclosure, without committing the government to any one particular prong of the justification. And this is quite consistent with Attorney General’s statements that he had never heard of plans to possibly prosecute Rosen related to the Kim leaks (see Orin’s post, Jonathan’s post, and my post), if the worry wasn’t that Rosen would flee from his own prosecution but that Rosen’s publishing information about the search warrant would interfere with the investigation.

In any event, I don’t think it’s quite right to say that the affidavit labeled Rosen a flight risk — any more than it would be right to say that the affidavit labeled Rosen a possible intimidator of witnesses (option 4) — given that the affidavit noted that there was a risk that someone would flee or the investigation would be jeopardized (or one of three other things could happen). Or at least that’s my tentative thinking; if I’m mistaken on this, I’d love to be set straight.