Will McAvoy Goes to Jail: Reporter’s Privilege and “The Newsroom”

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.)

old newsroom

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.

prison cell

 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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Ink by the Barrel: Assessing the Obama Administration’s “War on the Press”

There’s an old adage about tangling with the press that advises: “Never pick a fight with someone who buys ink by the barrel.” The Obama administration must be reflecting on the wisdom of that advice these days. The administration’s pursuit of leakers of classified information has led to accusations that it is at war with the press.

Over the past few years, the press has concluded that this administration is just about the worst thing that ever happened to them. James Risen, the New York Times reporter under subpoena to testify in the criminal trial of his alleged source Jeffrey Sterling, has said he believes President Obama “hates the press” and that Obama is the “greatest enemy to press freedom in a generation.” Susan Page of USA Today recently claimed that the Obama White House is “more dangerous” to the press than any other White House in history.

The resignation of Attorney General Eric Holder has led to another round of criticism of the administration’s treatment of journalists, as people reflect on Holder’s tenure. In a recent column in the Washington Post ominously titled “Holder’s Dark Legacy,” First Amendment lawyer David Schulz argued that the Obama administration has been “worse than Nixon” for freedom of the press.

So how did a liberal Democrat — and former constitutional law professor to boot – end up branded as one of the greatest threats to the free press in the nation’s history?

Attorney General Eric H. Holder, Jr.

Leak Prosecutions By the Obama Administration

Much of the criticism stems from the Obama administration’s aggressive prosecution of leakers of classified information. A popular talking point is that this administration has prosecuted twice as many leakers as all other administrations in history, put together. This is true, and sounds like a startling statistic, until you realize that the grand total of such prosecutions by the Obama administration is seven – and at least a couple of those cases were actually started during the Bush years.

That’s right: out of all the people who now call themselves journalists, all the media reports being filed every day, and all of the leaks constantly taking place, the Obama administration has summoned the vast prosecutorial resources of the federal government to wage “war on the press” by bringing a grand total of about one case a year. And of course those cases aren’t brought against journalists, but against federal employees who have violated their oaths to maintain classified information.

This slight uptick in leak prosecutions from a mere trickle to a slightly larger trickle is not really surprising. Security concerns in general have greatly increased in the post-9/11 world, causing the government to take certain leaks more seriously.

In addition, technology has made leaks potentially much more damaging. In the past, if sensitive information was leaked to a media outlet such as the New York Times, the government could usually depend on the editors contacting them about a potential story and at least listening to any security concerns the government had. Now, however, with the click of a mouse, a leaker can disseminate information worldwide instantly, with no need to go through any journalist, much less a “mainstream media” reporter. Little wonder that the administration is trying to head off such leaks before they even occur.

 

The Press Response to Leak Prosecutions

Most observers would probably look at this handful of leak prosecutions and conclude the administration is making at least a modest effort to protect national security by deterring disclosures of sensitive classified material. The press, however, looks at these prosecutions and sees an assault on the First Amendment. To them, these cases are not about plugging leaks but about attempting to muzzle journalists.

The press, of course, depends on leaks from confidential sources in order to fulfill their role of acting as a government watchdog and keeping the public informed. But cracking down on leaks is not the equivalent of waging war on the press. Leakers of classified information are, by definition, breaking the law. Despite the government’s efforts, such leaks continue at a robust pace. To some degree this is both inevitable and healthy, particularly given the amount of material the government classifies.

The press regularly receives leaks of classified information when they occur. But that doesn’t mean there is a First Amendment right to expect that federal employees will routinely violate their oaths — or that the government will always look the other way when they do.

Most members of the media presumably agree there are some core government secrets that need to be kept. No one would argue, for example, that a government employee should be able freely to leak the identity of covert government agents overseas, or planned military operations during time of war, or similarly vital national security information.

If the press deems leak prosecutions an assault on freedom of the press, the logical implication of that position is that leakers should never be punished. But if leakers could act with impunity, then rules protecting classified information would be toothless and impossible to enforce and national security would be at risk. If a leak is serious enough, then investigation and prosecution have to be an option. The target of such cases is the leak, not journalism itself, and a leak prosecution is not an attack on the press.

Leak prosecutions by the Obama administration have caused journalists concern

Seeking Information from Journalists

A related aspect of this controversy is that investigations of leak cases sometimes require seeking information from journalists. As I’ve noted elsewhere, leak cases are different from most investigations. If a confidential source leaks information to the press about some criminal misconduct at the Pentagon, for example, a prosecutor who wants to investigate that misconduct has no need to talk to the reporter or discover the reporter’s source. When a source is merely reporting misconduct by others, the government has tremendous power through the grand jury to investigate that misconduct directly.

In a leak case, however, the potential criminal misconduct is the source’s disclosure of classified information. The conversation with the reporter is itself the crime being investigated. The source is the target of the investigation and frequently the reporter is the only direct witness. In such cases, in order to prove the crime beyond a reasonable doubt, it may be necessary to seek information from the reporter in the form of e-mail or phone records or even testimony about the source’s identity.

The cases in which this happens are extremely rare. Under Department of Justice guidelines, information may be sought from a reporter only as a last resort, and only after multiple levels of approval. When it happens it’s almost always in a leak case – and even in many of those, the government manages to prove the case without seeking any information from the journalist who received the leak.

In the rare case in which the government does seek information from a journalist, however, the reaction of the press generally borders on the apocalyptic. Any such efforts are seen not as steps to prosecute the leak, but as an attack on journalism itself. For example, despite the Fourth Circuit Court of Appeals ruling that he is a critical government witness in the prosecution of Jeffrey Sterling, James Risen has repeatedly claimed he has been subpoenaed because the government is trying to punish him for his reporting. Risen is currently on a tour promoting his new book, where he regularly talks about his supposed status as a victim of government persecution and how it is evidence that Obama “hates the press.”

(As an aside, although Risen apparently believes the government officials who are supposedly “after” him are quite corrupt, he must not think they are very creative. As his case demonstrates, prosecuting a source is a lousy way to punish a journalist. It will be incredibly slow, as the reporter’s employer hires top-notch legal talent to spend years in court battling the subpoena. It will also turn the reporter into a martyr and folk hero within the journalism community, resulting in speaking gigs, journalism awards, and great material for a book tour — as the saying goes, you can’t buy that kind of publicity. If the source ends up pleading guilty, as about 95% of criminal defendants do, or if the case otherwise goes away, then the reporter will never be called to testify and will never risk being punished for contempt at all. If this administration really is “worse than Nixon” and is motivated by a desire to punish Risen, you might expect them to sic the IRS on him or use some other more efficient and effective method.)

It’s remarkable to me how the press — with a few notable exceptions such as the Washington Post’s Walter Pincus — loses all perspective over any government investigation that touches in any way on their activities. There tends to be no recognition of competing interests or the possible need to compromise. It reminds me of the National Rifle Association, which usually responds to even the most modest gun control proposal with overblown claims that the Second Amendment is under assault and the government is coming to take your guns. What the government sees as an attempt to improve public safety, the gun lobby sees as an all-out assault on the right to bear arms.

Similarly, what the government sees as an attempt to stop damaging leaks of classified material, the press sees as proof that the administration is an enemy of the First Amendment. (“Obama is coming to take your newspapers!!”). The press are usually quick to call out other groups that make such overblown claims, but seem unable to apply that same media spotlight to themselves.

The Truth About the “War on the Press”

There’s another saying that in any war, truth is the first casualty. The truth about the alleged “war on the press” is that these leak cases are not about the press at all. They are about investigating crimes involving potentially grave harm to national security, where journalism occasionally gets caught in the crossfire. The government prosecuting about one such case per year poses no threat to the First Amendment or to our robust free press.

For more than two centuries there has been a healthy tension between the right and obligation of the free press to inform the public and the legitimate need of the government to keep secret certain vital information. In general this push and pull – with the government trying to keep some secrets and the press trying to ferret them out – is healthy for our democracy. This tension flares up from time to time in skirmishes such as those involving Risen, but an occasional skirmish is not a war.

Update 12/13/14:  According to press 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 three years to enforce the subpoena. If this were indeed a war, you’d have to call that decision an unconditional surrender.

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