The Sentence Bob McDonnell Can Expect

Bob_McDonnell

UPDATE: on January 6, 2015, McDonnell was sentenced to only two years in prison, a substantial downward departure from the Sentencing Guidelines.  For a detailed discussion of the issues in the sentencing hearing, see my later post here.

Former Virginia Governor Robert McDonnell was convicted in federal district court on September 4, 2014 on eleven counts of corruption. His wife Maureen was convicted on nine counts, including one count of obstruction of justice that applied only to her.  The former Governor will be sentenced on January 6, 2015, and Mrs. McDonnell on February 20.  What kind of sentence can they expect?

McDonnell was found guilty on two counts of conspiracy, three counts of honest services wire fraud, and six counts of obtaining property under color of official right (Hobbs Act extortion). Mrs. McDonnell was found guilty on the two conspiracy counts, two counts of honest services wire fraud, four counts of Hobbs Act extortion, and the single count of obstruction of justice.  Each of these crimes carries a statutory maximum prison sentence: five years for conspiracy and twenty years for all the others.

So McDonnell stands convicted of nine 20-year crimes and two 5-year crimes. Does that mean the judge could impose the maximum for each, stack all the sentences on top of each other, and sentence McDonnell to 190 years in prison? Well, theoretically, yes – but that would never happen and would never hold up on appeal if it did. You don’t get those kinds of sentences unless you’re in Bernie Madoff territory, committing the greatest financial fraud in history (and even then, 150 years seemed a bit excessive for a 71-year-old guy).

At the other extreme, the Judge theoretically could give McDonnell probation and a fine, and no jail time at all. But that also seems very unlikely for a public official convicted of eleven felonies.

Between these extremes, how do we know what kind of sentence McDonnell is realistically facing?  In federal criminal cases we can actually get a pretty good idea, thanks to the Federal Sentencing Guidelines.

Historically, if a defendant was convicted of a twenty-year felony, the judge could impose a sentence of probation, twenty years, or anything in between.  Judges had the discretion to make sentences on multiple counts of conviction run consecutively (effectively stacking them up) or concurrently.  Sentences also could be greatly affected by how a prosecutor chose to charge a particular case. These factors led to concerns about widespread sentencing disparity, where defendants who committed similar crimes would receive dramatically different sentences depending on who their judge was, or what part of the country they were in, or what charges the prosecutor chose to bring.

In response to these concerns, Congress passed the Sentencing Reform Act of 1984, which created the United States Sentencing Commission.  The Commission is tasked with promulgating and regularly updating the  U.S. Sentencing Guidelines,  a detailed and complicated set of rules used to calculate the appropriate sentence in any federal criminal case. The Guidelines take into account the crimes that were committed, all of the details and circumstances of the offenses and related misconduct, and the details of the defendant’s criminal history. If the Guidelines are used correctly, similarly-situated defendants who commit similar crimes will end up facing a very similar sentence.

When first enacted, in order to promote the goal of sentencing uniformity, the Guidelines were mandatory. Unless very unusual circumstances justified a departure, the judge was required to impose a sentence that fell within the relatively narrow range of months in prison provided by the Guidelines.

This limitation on a judge’s historical sentencing discretion proved controversial, and various court challenges to the Guidelines followed. Finally, in the 2005 case of United States v. Booker, the Supreme Court ruled that the mandatory Guidelines regime violated a criminal defendant’s Sixth Amendment rights. The remedy, the Court held, was to leave the Guidelines system in place but make the Guidelines merely advisory rather than mandatory.

What has settled into place post-Booker is a system in which the Guidelines. although no longer mandatory, remain very important.  The sentence recommended by the Guidelines is still the starting point in any federal sentencing. Either side can argue that the judge should impose a higher or lower sentence than that recommended by the Guidelines, but the Guidelines provide the baseline from which that argument takes place.

In fact, even after Booker, data gathered by the Sentencing Commission shows that more than 50% of all federal sentences still fall within the recommended Sentencing Guideline range. In cases where the sentence is lower than the Guidelines, more than 60% of the time it’s because the government requested a lower sentence, based on factors such as the defendant’s cooperation in an ongoing investigation (not a factor in McDonnell’s case).  Judges in the Eastern District of Virginia, where McDonnell will be sentenced, are not known as particularly lenient sentencers, and tend to depart below the Guidelines even less than the national averages.

If we look just at the statistics, therefore, they suggest McDonnell has maybe a 1 in 5 chance of convincing the judge to go below the sentence recommended by the Guidelines.  Of course each case presents unique circumstances relevant to sentencing and the statistics only tell us so much, but they do suggest that McDonnell faces an uphill climb in persuading the judge to be more lenient.

Why do judges still follow the Guidelines?  By the time Booker was decided, judges and attorneys had worked with the Guidelines for nearly twenty years and everyone was familiar with the Guidelines system. Although they now have some additional discretion to vary from the Guidelines in appropriate cases, I think most judges agree with the overall goal of reducing sentencing disparity and believe that, in the majority of cases, the Guidelines do a pretty good job of fulfilling that goal.

There’s also the matter of appeal. When reviewing a sentence on appeal post-Booker, an appellate court considers whether the overall sentence is “reasonable” in light of the goals and requirements of sentencing spelled out in the federal criminal code. Those goals include fashioning a sentence that reflects the nature and seriousness of the offense, considers the defendant’s history, and adequately provides for punishment, deterrence, protection of the public, and rehabilitation of the defendant.

These are essentially the same factors that the Guidelines take into account. If a sentence is within the range recommended by the Guidelines, therefore, it’s going to be very difficult for a defendant to argue on appeal that such a sentence is “unreasonable.” In fact, some appellate courts apply a presumption that a sentence within the Guidelines range is a reasonable sentence. On the other hand, if the judge wants to depart from the Guidelines range (particularly to impose a greater sentence) he or she is to some extent going out on a limb and will need to explain why such a sentence is reasonable.   Sentencing within the Guideline range makes a sentence relatively bulletproof in the appellate court.

So what do the Guidelines call for here?  For you Sentencing Guidelines nerds (I know you’re out there) I’ll spell out my Guidelines calculations below. Bottom line, though, is that if the Judge follows the Guidelines, it looks to me like Bob McDonnell can expect a sentence in the range of 97-121 months, or about 8-10 years.  Maureen McDonnell fares a bit better because she is not an elected official.  Depending on how the judge chooses to handle her Obstruction of Justice conviction, her sentencing range could be 78-97 months or 63-78 months.

Remember, too, that in the federal system now there is no parole – the sentence you get is pretty much the sentence you serve, less some minor potential credits for good behavior.

A sentence of 8-10 years for the former Governor would certainly not be extraordinary. Former Governor Rod Blagojevich of Illinois is currently serving a fourteen-year sentence following his corruption conviction. Another Illinois Governor, George Ryan, served five years for corruption. And William Jefferson, a former Louisiana Congressman who also was tried in Virginia and who raised defenses similar to those raised by McDonnell – that he did not engage in “official acts” in exchange for the bribe payments – was sentenced to thirteen years in prison.

Could the judge be more lenient? Sure – McDonnell’s lawyers will no doubt argue, for example, that the judge should give the former governor credit for all of his years of public service. But most public corruption defendants also have long careers of public service, and that is already baked into the public corruption guidelines to some extent.  They may also rely on McDonnell’s claim that his actions were just the “Virginia way” and that he has been unfairly singled out for prosecution.

Whether the judge finds these arguments persuasive remains to be seen.  As of now, though, it appears that the man who was once considered a potential candidate for the White House may instead spend the equivalent of two presidential terms behind bars.

Update: 12/12/14 – the Washington Post is reporting today that the probation department has calculated a sentencing range for McDonnell with a minimum of 121 months.  That would mean their calculation came out at an adjusted offense level 32, two levels higher than what I calculated below.  Offense level 32 gives a sentencing range of 121-151 months.  If the Post’s information is correct, a possible reason is that the probation department has recommended an additional two level upward adjustment for obstruction of justice under section 3C1.1, based on a finding that McDonnell lied on the stand during the trial.  The Presentence Report is not yet public so we can’t know for sure the basis of their calculations.

Questions?  Comments?  Come up with a different number?  Leave me a comment below.

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Sentencing Guidelines Calculations – Robert McDonnell

Applicable Guideline: 2C1.1

Base offense level for public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2),  cross referencing Guideline 2B1.1(b)(1)(F)]

Defendant was an elected public official: add 4 levels   [2C1.1(b)(3)]

14 + 2 + 10 + 4 = Adjusted Offense Level of 30

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 30, Criminal History Category I: 97-121 months.

Maureen McDonnell 

Applicable Guideline for Corruption Counts: 2C1.1

Base offense level for a public official: 14   [2C1.1(a)(1)]

Case involved more than one bribe: add 2 levels   [2C1.1(b)(1)]

Value of the bribes: >$120,000 and < $200,000: add 10 levels [2C1.1 (b)(2), cross referencing Guideline 2B1.1(b)(1)(F)]

14 + 2 + 10 = Adjusted Offense Level of 26 for Corruption counts

Applicable Guideline for Obstruction of Justice: 2J1.1

Base offense level: 14

No applicable specific offense characteristics

Adjusted offense level of 14

Pursuant to 3D1.4(c), because this is more than 9 levels lower than the adjusted offense level for the corruption counts, this count is disregarded in calculating the final offense level, leaving her at an adjusted offense level of 26.

However, the judge could choose to apply the Chapter 3 Adjustment for Obstruction of Justice under 3C1.1, which would add two levels and put her at 28.

Criminal History Category: 0 pts (no criminal record) [4A1.1]

Sentence for Offense Level 26, Criminal History Category I: 63-78 months.

Sentence for Offense Level 28, Criminal History Category I: 78-97 months.

Note: it’s unclear whether the First Lady of Virginia is a “public official” within the meaning of 2C1.1(a)(1).  The Application Notes for 2C1.1 suggest that she is because she acts in an official capacity on behalf of the government of Virginia, so that’s how I have calculated it.  See Application Note 1(C).  If the Judge disagrees, however, then her base offense level would be 12 rather than 14, and all calculations get reduced by two levels.  

 

Barry Bonds and Obstruction of Justice: Swinging for the Fences in the 9th Circuit

Update 4/22/15: as predicted below, the 9th Circuit today reversed Bonds’ conviction for obstruction of justice, holding that his evasive, non-responsive testimony could not have been material to the grand jury’s investigation.  The judges wrote several different opinions, some of which discuss Bronston and the concerns analyzed below about allowing evasive answers to constitute obstruction of justice.  Judge Rawlinson wrote in dissent that the majority and concurring opinions had “struck out.”  You can read the opinion here.  You can read my analysis of the opinion here.

With the San Francisco Giants once again in the World Series, it’s a good time to check in on Barry Bonds, whose decade-long battle with the justice system gives new meaning to Yogi Berra’s immortal phrase, “It ain’t over till it’s over.”  Recent developments in the U.S. Court of Appeals for the Ninth Circuit give Bonds reason to hope that, when it finally IS over, he will have come out on top.

Bonds 2

Bonds, of course, is the superstar left fielder who played for the Giants for much of his career before retiring in 2007. He currently holds the record for the most home runs in a career (762) and the most home runs in a single season, set in 2001 (73).  Bonds’ achievements have been tarnished, however, by his association with baseball’s steroids scandal.

A major player in that scandal was a San Francisco company called Bay Area Laboratory Co-Operative (BALCO). BALCO personnel were suspected of supplying steroids and other illegal substances to a number of professional athletes. One BALCO employee, Greg Anderson, was Bonds’ personal trainer for several years. This gave rise to widespread suspicions that the remarkable changes in Bonds’ physique were due to something more than simply eating his Wheaties.™

A criminal investigation into BALCO ultimately resulted in guilty pleas from Anderson and several others to charges including distribution of illegal substances and money laundering.  As part of that investigation, federal prosecutors subpoenaed Bonds to testify before a grand jury in 2003. The prosecutors granted Bonds immunity for his testimony; they weren’t looking to charge him, they were seeking evidence against Anderson and other BALCO figures.

A grant of immunity, however, does not protect you if you perjure yourself or obstruct justice.  In 2007, two years after the guilty pleas in the BALCO case, the government indicted Bonds on four counts of perjury and one count of obstruction of justice, charging that he lied to the grand jury in order to conceal the details about his own steroid use.

The perjury counts listed four specific questions and answers about Greg Anderson and substances he allegedly gave to Bonds, where the government alleged that Bonds had lied to the grand jury. The obstruction of justice count charged that through those four lies in particular, as well as Bonds’ overall grand jury testimony in general, Bonds had endeavored to impair, obstruct or impede the due administration of justice in the grand jury proceeding.

After years of pre-trial maneuvering the case finally went to trial in 2011. The government dismissed one of the perjury counts during the trial. The jury hung on the other three perjury counts, and those were ultimately dismissed as well. The jury convicted Bonds on the single obstruction of justice count.

During the trial the government specified particular statements by Bonds in the grand jury that it alleged had amounted to obstruction of justice. The jury’s verdict was ultimately based on a single exchange:

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A:  I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t we don’t sit around and talk baseball, because he knows I don’t want — don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q:  Right.

A:  That’s what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see. So, I don’t know — I don’t know — I’ve been married to a woman five years, known her 17 years, and I don’t even know what’s in her purse. I have never looked in it in my lifetime. You know, I just — I don’t do that, I just don’t do it, and you know, learned from my father and throughout his career, you don’t get in no one’s business, you can’t — there’s nothing they can say, you can’t say nothing about them. Just leave it alone. You want to keep your friendship, keep your friendship.

This meandering, non-responsive statement became known in the case as the “celebrity child” response. The government argued the answer was obstruction of justice because it was an attempt not only to evade the question, but also to mislead the grand jury by suggesting that Bonds would have no way of knowing whether Anderson was involved in illegal steroids because Bonds did not get involved in other people’s business. The jury apparently convicted Bonds on this basis, and the trial judge upheld the conviction.

Perjury vs. Obstruction of Justice

Bonds’ conviction raises some interesting questions about the relationship between perjury and obstruction of justice – two white-collar offenses that fall into the category of “cover-up crimes.” Perjury is a knowing and specific lie about a material matter while under oath. Obstruction of justice may include perjury, but applies to a much wider range of corrupt conduct intended to “influence, obstruct or impede the due administration of justice.” 18 U.S.C. 1503.

The landmark Supreme Court case on perjury is Bronston v. United States (1973). Mr. Bronston was convicted of perjury for giving evasive testimony in a bankruptcy hearing about whether he or his company had any Swiss bank accounts. The government charged that his answers, although literally true, were misleading and left a false impression and therefore constituted perjury by “negative implication.”

The Supreme Court rejected this theory and held that perjury requires testimony that is actually false, not simply misleading or evasive.   This is true, the Court held, even if the witness’s answers were “shrewdly calculated to evade” — in other words, even if the witness was being deliberately non-responsive.

To hold otherwise, the Court said, might cause even honest witnesses to be deterred from testifying. Testifying is stressful and unfamiliar territory for most witnesses. Questions may be misunderstood or misinterpreted. Witnesses should not have to fear being charged with perjury for an answer deemed unresponsive that may have resulted simply from confusion, stress, or misunderstanding.

Even if a witness is being deliberately evasive, the Court noted, that is to be expected in an adversary proceeding. Hostile witnesses with something to hide often are reluctant to reveal the details that counsel is probing to find. Witnesses may also evade questions out of embarrassment or a desire to keep certain information private.

The adversary system has built-in safeguards to protect against such evasion. The remedy lies not in a subsequent perjury prosecution but in an alert questioner who detects the evasion and persists with follow-up questions.

The burden is on the questioner, the Bronston court noted, to pin the witness down. “If the witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.”  Perjury will not be charged “simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth.”

These stringent requirements for perjury, by the way, are one reason that successful perjury prosecutions are relatively rare. In the heat of battle, it’s not as easy as it sounds to listen carefully to the witness, detect evasion, and compose probing follow-up questions to pin the witness down. The ability to do that well is what makes a great cross-examiner – and there are relatively few great cross-examiners out there.

 Can Truthful Testimony Constitute Obstruction of Justice?

So back to Barry Bonds. Had Bonds been found guilty of perjury, his conviction for obstruction of justice would have been unremarkable. A witness who lies to the grand jury can rarely be heard to complain that he was not endeavoring to obstruct the proceeding.

But there’s no question that the “celebrity child” response could not be perjury under Bronston, and it was not charged as such. Bonds’ statement was evasive and non-responsive, but was not false.  He didn’t really answer the question at all, much less lie.

That means Bonds was convicted of obstruction of justice, based only on sworn testimony that was not perjury. That makes his case pretty unusual.

It’s true that perjury and obstruction of justice are different crimes, and obstruction does not necessarily require lying. But Bonds has a compelling argument that if truthful but evasive testimony, standing alone, can be obstruction of justice, then Bronston — and indeed the perjury statute itself — will be completely gutted.

When obstruction of justice is based solely on sworn testimony that does not constitute perjury, all of the concerns articulated in Bronston apply with equal force. Witnesses who are stressed or confused and who testify truthfully but unresponsively may fear that a prosecutor, looking at a cold transcript months or years down the road, will conclude they obstructed justice. This may discourage witnesses from testifying at all.

It’s also true that the unresponsive testimony by Bonds easily could have been remedied. An alert questioner could have cut off the rambling, refocused the question, and continued to press until Bonds was forced to answer directly.   In fact, as Bonds’ lawyers have pointed out, at other points during his testimony Bonds did answer more directly similar questions about whether Anderson had given him any illegal substances.

Was Bonds being evasive and trying to avoid answering the embarrassing questions that could sink his career? Well, yes – that’s what hostile witnesses do. As the Supreme Court noted in Bronston, it’s exactly what a questioner should expect.

Obstruction of justice requires that the defendant act with corrupt intent. It’s difficult to argue that a witness acts “corruptly” within the meaning of the statute when he behaves exactly how the Supreme Court says a hostile witness should be expected to behave.  What’s more, unlike many types of obstruction — shredding documents, or threatening witnesses, for example — the evasive testimony occurs openly, for all to see, and is easily remedied on the spot by the questioner. Unless and until he actually lies, the witness may be trying to avoid the questions but it’s hard to say he is corruptly obstructing the proceeding.

Under the government’s theory of obstruction in the Bonds case, a frustrated prosecutor unable to pin down a “wily witness” who was truthful but evasive in the grand jury could later charge that the witness obstructed justice. If this is a viable theory of obstruction, then all of the safeguards and policy rationales articulated by the Bronston Court are pretty much out the window.

In fact, under this theory the perjury statute itself becomes largely unnecessary. Prosecutors could simply charge obstruction in every case and avoid the more stringent requirements of the perjury statute. No need to prove that the witness actually lied; just prove that they didn’t give you everything that you wanted — even if the reason may be that you just didn’t ask the questions very well.

This becomes even more troubling when you consider that obstruction does not require that a witness be under oath. A witness who was merely being interviewed by the FBI could later be charged with obstruction based solely on that interview if the agents and prosecutors later decide that she was being unresponsive, albeit truthful, in her answers. This would be a pretty dramatic expansion of criminal liability.

The Status of Bonds’ Case 

A three-judge panel of the 9th Circuit upheld Bonds’ conviction in September of 2013. However, the entire 9th Circuit later voted to rehear the case en banc, with a larger, eleven-judge panel – a relatively rare occurrence indicating that a number of judges have some concerns about whether the original three-judge panel got it right.

Although Bonds has already served his sentence of home detention followed by probation, getting his conviction reversed would have obvious benefits to him – not the least of which would be the possible impact on whether he is ever voted into baseball’s hall of fame.

At the oral argument on September 18, 2014, the en banc panel seemed quite skeptical of the government’s expansive theory of obstruction of justice. The Court’s decision is pending, but it appears that, more than a decade after he testified in the grand jury, Bonds may finally be about to get some good news from the justice system. Stay tuned.

Questions?  Agree?  Disagree?  Post a comment below.

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Is NY Times Reporter James Risen Just “Doing His Job?”

Updated 12/13/14 – see below.

In an article in the Washington Post on October 10, Matt Zapotosky repeated the often-heard claim that New York Times reporter James Risen is facing jail or other penalties for simply “doing his job.”

Journalists being punished for doing their jobs?  Sounds like something that happens in totalitarian countries, not in the land of the First Amendment.  What’s going on here?

A little background: James Risen is a Pulitzer-prize winning reporter who focuses on national security issues.  In 2003 a confidential source from the CIA leaked classified information to Risen about U.S. Government efforts to undermine Iran’s nuclear program.  Risen actually didn’t publish a story about it in the Times, but he used the information in a book he wrote in 2006 called State of War.

The government identified former CIA employee Jeffrey Sterling as Risen’s suspected source and indicted him for illegally leaking classified information.  He’s now facing trial in federal court in the Eastern District of Virginia.  Risen, as the recipient of the leak, is the only direct witness to Sterling’s alleged crime, so the government would like him to testify.  Citing a reporter’s obligation to protect the identity of his confidential sources, Risen has refused.

In a 1972 case, Branzburg v. Hayes the Supreme Court held that the First Amendment does not create a privilege that allows reporters to refuse to identify their sources, at least in criminal cases.  The U.S. Court of Appeals for the Fourth Circuit ruled that, based on Branzburg, Risen has no right not to testify, and the Supreme Court declined to hear Risen’s appeal.  As things stand right now, therefore, Risen is under subpoena to testify in Sterling’s trial, and he has no legal basis to refuse.  The government could choose to drop the subpoena but it’s unclear whether it will do so.

Typically, a witness who refuses to testify without a valid reason may be held in contempt of court.  The witness may then be jailed, or fined a certain amount per day, until he or she agrees to testify.  The penalty is intended to coerce the witness into compliance; witnesses jailed for contempt are said to hold the keys to their own jail cell, because they need only comply with the court order in question to be released.

Risen says he will go to jail rather than identify his source. This puts the Department of Justice in a bit of a pickle. As the Fourth Circuit noted, Risen’s testimony is critical to the prosecution because he is the only one with direct knowledge concerning the source of the leaks. The administration is trying to deter leaks of classified information that may harm national security, and clearly views this as a significant case.

On the other hand, this administration has faced substantial criticism for its supposed hostility to the press (most of that criticism coming from the press itself, of course).  Both President Obama and Attorney General Holder have said they don’t believe journalists should face jail for doing their jobs.  That seems indisputable – we don’t imprison reporters in this country for their reporting work.  Attorney General Holder apparently reiterated this just this week.

But that leaves open this question: would punishing Risen for refusing to testify be punishing him for doing his job?

It’s important to note at the outset that it is extremely rare for a journalist to be asked to testify about his or her sources.  The Department of Justice has very strict guidelines (recently made even stricter) governing when it will subpoena a reporter, and does so only as a last resort.  Risen is one of only a handful of such cases in recent memory. In the overwhelming majority of cases, therefore, journalists’ sources remain absolutely protected with no government interference.

It’s also important to recognize that Risen does not face punishment for any work directly related to reporting.  He has not been charged for talking to Sterling, for obtaining or publishing the classified information, or for any news gathering, writing, or publishing activity – the types of things we would normally regard as a reporter “doing his job.”  (In fact, although this point is frequently obscured, Risen hasn’t been charged with or prosecuted for anything – he’s merely a potential witness, not a defendant.)

It is true, though, that it is also part of a reporter’s job to protect the identity of confidential sources.  That practice has longstanding roots in the journalism profession.  Reporters believe their ability to promise confidentiality is essential to encouraging sources to come forward and reveal information without fear of reprisals.  But recognizing a general duty to protect sources only begins to answer the question.

Other professions, including lawyers, doctors, and clergy, also have a duty to protect the confidentiality of information communicated to them. These duties, however, all exist within the context of the overall obligations imposed by the legal system.  The understood subtext is that individuals will fulfill their obligations and do their jobs, including maintaining confidentiality of communications, to the fullest extent allowed by law.  All professions operate — or at least we hope they do — with the understanding that in carrying out their duties, the individuals within that profession will abide by the law.

For example, as a lawyer, I have a duty to protect client confidences, and doing so is definitely part of my job.  But if a court rules in a particular case that the attorney-client privilege does not apply and that I must testify about certain client communications, then as a citizen I have an obligation to abide by that order, even if I’m convinced that the court is wrong.

This rule doesn’t apply just to lawyers, of course.  Whether Risen has a legal right not to testify is a question of constitutional law and evidence.  In this country, those questions are decided by courts, interpreting either constitutional norms or statutes passed by a legislature.  Individual citizens don’t get to decide for themselves what the rules are or which laws they will follow.

Journalism operates within the context of our system of laws, not in some unique legal vacuum.  If a newspaper violates the libel laws it may be punished in the courts, and this does not violate the First Amendment.  A reporter could not hire a burglar to break into a politician’s home to steal evidence for a story and then claim he was only “doing his job” and should not be prosecuted. By the same token, journalists may protect the identity of their sources to the limits of the law, but are not free to defy the law when they disagree with the outcome in a particular case.

Journalists may argue that they are different because their duty of confidentiality is rooted in the critical First Amendment freedom of the press. (Put to one side, for now, the fact that the Supreme Court has ruled the First Amendment does not require a reporter’s privilege.) But other privileges have roots in the Constitution as well – the clergy privilege supports the free exercise of religion; the attorney-client privilege supports the right to counsel.  Even constitutional rights are never absolute – the classic example being that freedom of speech does not allow one to yell “fire” in a crowded theater.

In a pluralistic society, compelling interests, even constitutional interests, will sometimes clash — such as the interest in a vigorous, free press and the interest in deterring unlawful leaks of classified information that may damage national security. Sorting out those conflicting interests is the job of courts and legislatures. And the rule of law — or the social contract, if you will — means that we all agree to abide by those decisions.

So to answer the question: No, Risen does not face punishment for “doing his job.”   Risen’s job includes a duty to protect the confidentiality of his sources to the fullest extent allowed by law.  He has done that by taking his fight all the way to the Supreme Court.  The courts have ruled he must testify.  Risen’s job does not include deciding for himself what the law requires and flaunting legal rulings with which he disagrees.

Of course Risen has the power to refuse to testify — as do we all — but he does not have the right to do so.  If he chooses to defy the law and is punished that will not make him a hero or a martyr, although if history is any guide, his colleagues in the press will undoubtedly hail him as such.

Update 12/13/14:  According to news reports today, Attorney General Holder has decided that the Department of Justice will not seek to compel Risen to identify his source, despite having fought for more than three years to enforce the subpoena.