I’ve enjoyed watching The Newsroom, Aaron Sorkin’s HBO series that will soon end its third and final season. If you’re not a fan, the show chronicles the behind-the-scenes action at a fictional cable news network, ACN, as the staff confronts the many thorny issues facing the modern media. Jeff Daniels stars as Will McAvoy, the anchor of ACN’s hourly news broadcast, “News Night.”
The last few episodes have featured a storyline in which McAvoy is jailed for contempt after refusing to reveal a confidential source’s identity to a federal grand jury. The source illegally leaked 37,000 classified documents to ACN. The documents detail a failed U.S. covert operation against a foreign government in which dozens of people were killed. The government believes the disclosure has compromised intelligence operations and endangered lives, and wants to prosecute the leaker.
The federal prosecutor investigating the leak subpoenas Will to testify in the grand jury and name the source. Will refuses, despite an order from a federal judge that he comply. Although Will is confident that he is “too big to jail” and the government would never seek to lock him up, that confidence turns out to be misplaced and he is jailed for contempt of court.
The story is no doubt inspired in part by the recent events involving James Risen, the reporter for the New York Times who has been subpoenaed to testify at the criminal trial of former CIA employee Jeffrey Sterling. The government believes Sterling illegally leaked classified information to Risen and wants Risen to confirm that fact. Risen has refused and has said he will go to jail rather than reveal his source. As of this writing, Sterling’s trial is set to begin soon and there is no reported resolution of the standoff between Risen and the government.
I’ve done a lot of work over the past decade on the issues surrounding the reporter’s privilege, and have written about the Risen case on this blog here and here. In brief, I think the privilege is a bad idea. There’s no evidence that confidential sources are deterred from coming forward by the lack of a privilege — after all, investigative journalism has thrived for more than 200 years without one. The privilege would effectively immunize leakers of classified material, making it almost impossible to protect even the most sensitive national security information. And in today’s digital world, any government effort to define who is a “real” journalist worthy of a special legal privilege presents huge First Amendment issues of its own. (Anyone interested in reading a more in-depth critique of the reporter’s privilege can find a law review article I wrote in 2008 here.)
Reporters Privilege and The Newsroom
It’s been interesting to watch The Newsroom’s dramatization of the reporter’s privilege issues. The show has done a good job of acknowledging that the Supreme Court’s 1972 decision in Branzburg v. Hayes holds there is no constitutional privilege for a reporter to refuse to identify a source in a grand jury investigation. Legally, Will doesn’t have much of a leg to stand on.
The show also highlights some of the anomalies surrounding leaks of classified information to reporters. For example, in one scene a producer is in a conference room with stacks of the leaked documents and his girlfriend – also a journalist – walks in. He says, “There’s classified documents in here, you can’t be in here,” and walks her out of the room. The irony, of course, is that the producer himself has no more legal right to be looking at classified materials than does his girlfriend.
Journalists often think of themselves as self-appointed monitors to review classified information, but some characters in The Newsroom rightly question this notion. How exactly are journalists, who have no formal training in national security or counter-espionage, qualified to make decisions about what is a “good” leak or a bad leak, whether government covert operatives have done a good job, or whether publishing certain information might damage our country’s interests? Journalists are unelected and unaccountable to the public, and work in an intensely competitive industry where professional accolades accrue to the first to reveal new information. It’s not at all clear why we should feel comfortable entrusting them with potential life and death decisions about national security.
Trusting journalists to protect information that truly needs to be kept secret also assumes that any leaks will be made to a “mainstream media” organization that will behave responsibly and listen to government concerns about disclosing the information. This is no longer necessarily true. At one point in The Newsroom the source, who feels the story is not being aired quickly enough by ACN, threatens simply to dump all the documents on the Internet.
This highlights another fact of life about leaking in the digital age. Sources no longer require the “mainstream media” in order to get their classified information out to the public – all they need is an Internet connection. If the information is compelling enough, they can depend on the mainstream media to pick up the story and publicize it widely. There’s no real need to leak information to a reporter anymore, and no guarantee that an established media organization will carefully vet the information before disclosing it.
Art Doesn’t Always Imitate Life
Of course, real life doesn’t always make for riveting TV drama, and you can’t quarrel with the need to take a little artistic license. But lest anyone think that McAvoy’s experience is an accurate depiction of what would happen in a real-world case, let’s examine just three points:
1) Get subpoenaed on Monday, go to jail on Friday – McAvoy and ACN have a great legal malpractice claim against their lawyer, Rebecca Halliday. In the show, McAvoy is subpoenaed, goes before the grand jury twice and refuses to reveal his source, appears before the judge twice, gets held in contempt, and gets hauled off to jail – all in the space of a week. Halliday pretty much just sits back and lets it all happen.
In real life, once McAvoy received a subpoena, Halliday would have filed a motion to quash the subpoena based on a claim of reporter’s privilege. (Although the Supreme Court in Branzburg made such a claim very difficult, a reporter is free to try to convince a court to recognize the privilege in their particular case.) If she lost before the district court judge, she could appeal to the U.S. Court of Appeals. If she lost again, she could petition to have the entire Court of Appeals rehear the case en banc, and if that was denied, she could file a petition for certiorari to the U.S. Supreme Court. Each of these stages would involve months of briefing by both sides, oral arguments, and waiting for the court’s decision.
All of this would likely consume at least 18 months to two years, during which the subpoena would be on hold. McAvoy would not have to appear before the grand jury and would not be held in contempt for refusing to testify. This is exactly what has happened in the Risen case, where these types of legal battles have delayed the trial of Jeffrey Sterling for more than two years while Risen has yet to face a single question under oath.
This is one very practical reason that a prosecutor will subpoena a reporter only as a last resort. If you do so, you are almost certainly wading into a huge legal battle against top-notch media lawyers that will delay your case for at least a couple of years. Delay is bad for the prosecution: memories fade, witnesses become unavailable, circumstances change, and the case generally gets more difficult to prove.
In The Newsroom, for example, McAvoy’s source ends up taking her own life about two months after he is held in contempt and the government drops the subpoena because it no longer needs his testimony. In real life, after only sixty days the briefing at the District Court level alone would probably not be complete. If Halliday had done her job properly, Will would never have seen the inside of a grand jury room, much less a prison cell.
2) Going for the reporter first – On The Newsroom it appears the government learns about the leak and goes straight to ACN and McAvoy to seek to compel them to reveal their source. There’s no indication that the prosecutors did any investigation within the government to see if they could independently identify the leaker without needing to talk to the press.
In real life, federal prosecutors are governed by strict Department of Justice guidelines concerning when they may seek to compel information from the press. Among many other things, those guidelines require prosecutors to demonstrate they have exhausted every other potential option and that they are seeking information from the press only as a last resort and only because it is absolutely necessary.
Before even thinking about going to the reporter, prosecutors would do an exhaustive investigation into the possible source of the leak. This could include examining government computer and phone records, interviewing any possible witnesses or sources, examining phone and other records of possible suspects, perhaps conducting lie detector tests or having witnesses swear out affidavits denying they were the source, and taking other investigative steps.
Both the Department of Justice guidelines and any judge reviewing a motion to quash a subpoena of a journalist would require the prosecution to demonstrate that it has exhausted every other possible investigative avenue and that it is coming to the journalist only as a last resort. Again, that could take months or years. Rule #1 in any leak investigation is that you can’t begin with the press – you have to try everything else first.
3) The raid on the newsroom – Here the show crosses over into real fantasy. The FBI shows up at the ACN offices with a squad of agents and a warrant to seize not only documents but every computer hard drive in the room, to search for evidence of the leaker’s identity. Presumably they plan to comb through all the documents and computers looking for evidence, in the process examining every aspect of ACN’s First Amendment activities.
I’m not aware that something like this has ever happened, and I can’t imagine that it would. No Justice Department in its right mind would request such a sweeping warrant allowing the government to seize everything on every computer of a news organization, and no judge in his or her right mind would approve it.
This incident may be (very loosely) based on the case last year where the Department of Justice subpoenaed records for a number of phone lines from the Associated Press. Prosecutors were investigating a leak to the AP about a CIA operation to foil an al-Qaeda bomb plot in Yemen. The disclosure compromised an ongoing CIA terrorism investigation. After hundreds of interviews and the review of thousands of documents failed to identify the leaker (again, proving they had exhausted every other option), the Department of Justice subpoenaed the phone records.
The AP phone records were just lists of numbers that connected to a specific group of phones during a specific limited time period. They revealed nothing about the content of any conversation or even the identity of the parties to the conversation. That’s a very far cry from the sweeping seizure of computer hard drives and documents to comb through the contents. Nevertheless, there was such an outcry over even the more modest AP subpoena that the Department of Justice ultimately revised its guidelines on media subpoenas to make them even stricter.
Having the FBI swoop down on a news organization and seize everything in sight makes for good drama, but it has nothing to do with reality.
Will McAvoy Goes to Jail
There is one more feature of the story on The Newsroom that is very different from real life: McAvoy’s reaction to the subpoena. When the judge asks McAvoy what he thinks the court should do, he replies that he understands the government’s position and is sympathetic to it. He says he understands how much more damage leaks of classified information can do in the Internet age, and how rapidly. He recognizes that the government needs to try to protect certain secrets in the interest of national security and that the prosecutor is just doing his job.
McAvoy doesn’t go on a rant about how the subpoena proves that the current administration hates the press, or that the administration is the greatest threat to press freedom in a generation or is trying to punish him for his reporting. He doesn’t act as though his case means the end of the First Amendment as we know it. McAvoy would recognize such claims for the overwrought histrionics that they are and would mock them mercilessly. He acknowledges the legitimate government interests involved in seeking the information. But he believes that, as a journalist, he simply can’t comply with the subpoena.
I think Will makes the wrong decision, but you’ve got to respect the way he handles it.
Update 12/13/14: News today is that Attorney General Holder has decided the Department of Justice will not seek to compel James Risen to identify his source in the Sterling trial. Looks like Risen, unlike McAvoy, will avoid going to jail.
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