The Ongoing Debate Over the Reporter’s Privilege

I had a video conference last week with a group of judges attending the National Judicial College in Reno, Nevada. They were taking a course on Media and the Courts, and wanted to discuss the reporter’s privilege. Their instructor reached out to me after seeing some articles I’ve written opposing the privilege. The primary topic of discussion: should there be a reporter’s privilege?

A reporter’s privilege, or shield law, protects journalists from being compelled to testify about the identity of their confidential sources or other information they learned while newsgathering. Supporters of the privilege argue that if reporters can be compelled to reveal their sources, whistleblowers and others who wish to remain anonymous will be afraid to talk to them. That will impair the ability of journalists to root out important information and will deprive the public of the benefits of a vigorous free press.  Without the privilege, they claim, sources will be “chilled” from coming forward and the free flow of information to the public will dry up.

I first became interested in the reporter’s privilege and started writing about it ten years ago, during the Valerie Plame/CIA leak case.  During that investigation, reporter Judith Miller of the New York Times was held in contempt and went to jail for about three months after defying a court order to reveal her White House source in the grand jury.   Miller’s incarceration led to a number of unsuccessful attempts to pass a privilege law in Congress, but efforts to shield leakers of confidential information lost steam in the aftermath of Wikileaks and Edward Snowden.

Renewed debate over the privilege has been in the news again recently. Reporter James Risen asserted the privilege and refused to testify in the criminal trial of Jeffrey Sterling, a former CIA employee charged with leaking classified information to Risen. The courts ruled against Risen after a four-year legal battle, but he still refused to testify. Faced with the prospect of having Risen jailed for contempt, the government at the eleventh hour withdrew its subpoena and prosecuted Sterling (successfully) without Risen’s testimony.

In addition, earlier this month, the National Press Club and the Reporters Committee for Freedom of the Press hosted a reunion of journalists who have gone to jail to protect their confidential sources.  (Judith Miller was a featured participant.) The gathering was part of a renewed push to urge Congress once again to pass a federal shield law.

The judges and I had a great conversation. Here’s a summary of some of their questions and my responses.

old newsroom - should there be a reporter's privilege?

What’s the current legal status of the reporter’s privilege? 

On the federal level, the Supreme Court ruled in 1972 in Branzburg v. Hayes that the First Amendment does not provide a privilege for reporters to refuse to testify in grand jury proceedings. That remains the law as far as grand jury proceedings are concerned. Lower courts have disagreed over whether there is at least a qualified privilege in civil cases, or in criminal matters other than grand jury proceedings. The Supreme Court has not weighed in since Branzburg, although it did recently decline to hear the appeal of the Fourth Circuit’s decision in the James Risen case, which rejected Risen’s claim of privilege in a criminal trial.

Over the past four decades there have been many unsuccessful attempts in Congress to pass a federal shield law. Since the CIA leak case and the jailing of Judith Miller, a bill called the Free Flow of Information Act has been introduced in repeated Congressional sessions but has never been passed.

Although there is no federal shield law, the Department of Justice has voluntary guidelines that sharply limit when DOJ attorneys are allowed to subpoena a reporter. Those guidelines were recently made even more strict in the wake of the Risen case and some other recent DOJ skirmishes with the press.

On the state level, forty-eight states and the District of Columbia recognize some form of a reporter’s privilege in at least some cases, either by statute or by judicial decision. Wyoming and Hawaii are the sole holdouts.

Should There Be a Reporter’s Privilege?

Privileges are contrary to the fundamental precept that the public is entitled to every person’s evidence. By definition, a privilege keeps relevant information out of the hands of a judge or jury trying to decide a case. If the information is important enough, that can lead to errors and injustice in particular cases, including wrongful convictions or guilty individuals escaping punishment altogether.

Proponents of any new privilege therefore have the burden of demonstrating that the benefits of the privilege would outweigh the costs. On the benefit side of the equation, reporter’s privilege advocates argue that in the absence of a privilege sources will fear to speak to reporters and the public will be deprived of vital information. They cite such famous stories as Watergate, Abu Ghraib, and the revelation of secret CIA prisons and NSA wiretapping to demonstrate the critical importance of confidential sources to investigative journalism.

The problem with this argument is that all of those stories were reported, and all of those sources came forward, in the absence of a federal shield law. One could just as easily argue, therefore, that these stories demonstrate a shield law is unnecessary.

In Branzburg the Supreme Court was skeptical of the premise behind the shield law, noting that the lessons of history suggest the free press has always flourished without a privilege.  Claims about “chilling effects” and harms to the press, the Court noted, were largely made by self-interested members of the media themselves.

On the cost side, we also must recall that the shield law is a blunt instrument that protects the bad along with the good. Not all leaks involve a virtuous whistleblower seeking to benefit the public by disclosing government misconduct. Some leaks are political hit jobs, like that in the Valerie Plame/CIA leak case, or otherwise involve bad motives. There is no public interest in shielding such leaks to the press.

Finally, it’s not true that reporters cannot promise sources confidentiality in the absence of a shield law. Because cases in which journalists are subpoenaed are so rare, reporters can provide sources with a high degree of confidentiality simply by promising not to name them in the story and never to reveal their name unless legally compelled to do so.

Leaks happen, and particularly in Washington, leaking to the press is almost a way of life. Sources talk to the press for many different reasons, some noble and some not so noble. There is no evidence that the presence or absence of a shield law makes any real difference in whether or not a source decides to come forward. In the absence of such evidence, the rationale for the shield law evaporates.

Why has the legislation repeatedly failed in Congress and what are its prospects?

I think there have been two primary stumbling blocks for the federal shield law.

The first is the question of carving out exceptions. Congress is understandably not willing to enact a blanket privilege that would apply in every case. Therefore the proposed statutes always contain exceptions providing that the privilege will not apply in cases involving terrorism or where national security is threatened, or in cases involving certain violent crimes, or sex crimes against children, or other categories of offenses.

Inability to agree on the proper scope of these various exceptions has helped stall the bills. The problem, of course, is that the more exceptions the bill contains, the less effective it will be because it becomes more and more difficult for a source or a reporter to determine, at the time of a potential disclosure, whether the privilege would apply. If we assume for argument’s sake that sources actually weigh the presence or absence of a privilege when deciding whether to speak to a reporter, the most effective privilege would be a blanket one with no exceptions – but Congress will never agree to that.  A privilege full of loopholes is little better than no privilege at all.

A second thorny problem is how to define who is a “journalist” entitled to the protection of the shield law. Even more than forty years ago in Branzburg, the Supreme Court noted that trying to define who is a “newsman” worthy of the privilege “would present practical and conceptual difficulties of a high order.” This was at a time when the news media consisted largely of local newspapers, radio, and three television networks. In the age of the Internet, social media, and citizen journalism, those difficulties are exponentially greater.

Congress is trying to strike a balance between covering those who are truly engaged in journalism while not creating a sweeping privilege that might apply to everyone who posts something of public interest on their own blog or Facebook page. Trying to draw those lines has proven challenging; the latest iteration of the shield law contained a definition of a “covered journalist” that was hundreds of words long, full of exceptions and qualifications, and that still didn’t satisfy all the interested parties.

How would you solve the definition of “journalist?”

I’m not sure there is a way to do it that doesn’t raise significant constitutional problems. The Supreme Court has made it clear that the protections of the First Amendment apply equally to the New York Times and to a lowly street-corner pamphleteer – or pajama-clad blogger. But the shield law requires the government to define who is a “real” journalist worthy of special legal protection and who is not. That effectively creates a subset of “approved” speakers, and approaches a system of allowing the government to license journalists. I agree with investigative journalist Walter Pincus at the Washington Post that this raises significant First Amendment concerns.

Why not just have a sweeping definition of “journalist” that covers everyone who shares information with the public?  What’s the problem?

If the privilege applies to everyone who shares any information with the public, then a tremendous amount of information from an enormous number of witnesses is potentially excluded from the legal system. Again, privileges have costs, and the more sweeping the privilege, the greater the costs.  And once again we’d have to wonder whether there are really any offsetting benefits that would outweigh those costs, considering that the information age currently appears to be thriving in the absence of such a privilege.

A related problem is the administrative costs of the privilege. Every claim of privilege requires legal proceedings, pleadings, lawyers, hearings, and court time to resolve. If a privilege is too broad, a huge amount of time, money and effort in the judicial system will be devoted to adjudicating claims of that privilege.

If almost all states have some form of privilege, why can’t the federal government have one?

This really is an apples to oranges comparison. The largest and most significant cases, including those involving national security and terrorism, tend to be in federal court. A federal shield law would have far greater potential to apply in those types of cases, and therefore to shield the most dangerous or harmful conduct. State courts generally don’t deal with issues of that magnitude.

For the federal shield law, the potential stakes are much higher. That’s part of the reason Congress has had so much trouble working out the terms of a shield law that it could live with.

What sort of evidence would it take to convince you that the privilege is a good idea?

To borrow a hypothetical posed by one of the judges, suppose Watergate had never been reported. Then suppose Mark Felt came forward in the 1990s, after Nixon had died, to say he had considered talking to Woodward and Bernstein but had been afraid to do so because of the absence of a reporter’s privilege. As a result, there was no “Deep Throat,” and the country never learned about a major political scandal.

If credible stories like this existed, that would at least provide some evidence that shield law advocates are correct. It wouldn’t have to be on the scale of Watergate, of course, but if the privilege is really as important as its advocates claim, you’d think there would be some documented examples of sources coming forward later to say they were deterred from speaking in the past due to the absence of a privilege. I’m not aware of any such examples, but if they were out there, one would at least have to rethink the cost and benefits questions surrounding the privilege.

(As an aside, speaking of Watergate, I have it on good authority — from a reliable, confidential source — that Bob Woodward, Mr. Investigative Journalism himself, thinks the reporter’s privilege is unnecessary and a bad idea.)

Why should reporters go to jail for just doing their jobs?

They don’t. This is one of the greatest red herrings in the whole privilege debate, and everyone (on both sides of the argument) resorts to it.

In totalitarian countries, governments may throw journalists in jail for what they write. THAT’s a reporter going to jail for doing his or her job. That doesn’t happen in the U.S. and has nothing to do with the privilege debate. Judith Miller did not go to jail for anything she wrote, and James Risen was not facing the prospect of jail based on any of his reporting.

When reporters are jailed in privilege disputes, it is for contempt of court. They have refused to answer a question in a legal proceeding without a valid excuse. As a result, like any other witness, they may be jailed for contempt to try to coerce them into complying with the court’s order.

As an attorney, part of my job includes protecting client confidences, and the law recognizes the attorney-client privilege. But if a judge rules that the privilege does not apply in a given case and that I must testify about something a client told me, my obligation is to obey that court order. I don’t get to decide for myself what the law requires. If I defy the court’s order, I can be jailed for contempt until I comply.

All legal privileges, by definition, must exist within the framework of the legal system and the rule of law. That means that courts are the final arbiters of privilege questions. Individuals who defy lawful court orders are not “doing their jobs,” they are placing themselves above the law.

Many reporters feel so strongly about the privilege that they, like Judith Miller and James Risen, will refuse to testify no matter what a court says. This is also why passing a shield law will not keep reporters from going to jail. Assuming that any shield law passed by Congress would contain some exceptions, there will still be future cases where a Court rules that the privilege does not apply. In such a case, if the reporter still refuses to testify, he or she can still be jailed for contempt. Contrary to the claims of its supporters, therefore, a shield law will not keep reporters from being locked up.

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Thanks to the National Judicial College for the enjoyable discussion. Those interested in taking a much deeper legal dive into these and other issues surrounding the reporter’s privilege can find law review articles that I’ve written here and here.

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Jeffrey Sterling, James Risen, and Prosecuting Leakers: Lessons from the Sterling Trial

UPDATE 1/26/15 3:30 pm – the jury has found Sterling guilty on all nine counts.

UPDATE 5/11/15 – the judge today sentenced Sterling to 42 months in prison.

The long legal saga involving former CIA officer Jeffrey Sterling is drawing to a close. At this writing his criminal trial has concluded and the jury in Alexandria, Virginia is deliberating.

CIA logo

Sterling was indicted on multiple counts of violating the Espionage Act and related charges. The government alleges he illegally leaked classified information concerning a covert CIA operation to New York Times reporter James Risen. The program, dubbed “Operation Merlin,” involved using a Russian scientist working with the U.S. to deliver flawed nuclear weapon blueprints to Iran in an attempt to derail their weapons program.

When Risen first received the information the Times honored a government request not to run the story due to national security concerns. Risen, however, later revealed the same information in his book, State of War.

Ever since Sterling was indicted in 2010, a central drama in the case had been the government’s efforts to compel Risen to testify about whether Sterling gave him the classified information. Risen refused to comply with the government’s subpoena, claiming a reporter’s privilege to refuse to identify his source.

The trial judge initially upheld Risen’s privilege claim and the government appealed. Relying on the 1972 Supreme Court case of Branzburg v. Hayes, the U.S. Court of Appeals for the Fourth Circuit ruled there is no privilege that allows a reporter to refuse to testify in a criminal case. The U.S. Supreme Court declined to consider Risen’s appeal.

After his appeals were exhausted, Risen continued to say he would go to jail rather than comply with the court order to testify and reveal his source. Shortly before the Sterling case went to trial, the government announced that it would withdraw its subpoena of Risen and would not seek his testimony. The trial proceeded without Risen taking the stand.

So what lessons can be drawn from the Sterling/Risen drama?

DOJ’s Decision to Drop the Risen Subpoena 

The big surprise in the case was the government’s decision to drop the Risen subpoena. Risen was a critical witness, and the case was delayed for nearly four years while the government fought for the right to compel him to testify. Why would you do that if you’re not willing to follow through?

The prosecutors ended up going to trial with one hand tied behind their backs. The best possible witness to the alleged disclosure of classified material – the person to whom it was disclosed – did not have to take the stand. The government was left to put on a circumstantial case relying on evidence of phone calls, e-mails, and details in Risen’s book that allegedly could only have come from Sterling. The prosecutors who fought for years to compel Risen to testify must have felt they had the rug pulled out from under them.

But the truth is the government simply bowed to the inevitable. When Judith Miller of the New York Times was jailed for contempt in 2005 for refusing to testify about her source in the Valerie Plame/CIA leak case, that was in connection with a grand jury investigation. The grand jury could simply be put on hold while waiting to see whether the contempt penalty would convince Miller to change her mind. After 85 days in jail, Miller ultimately did agree to testify in the grand jury after her source, Scooter Libby, released her from her promise of confidentiality.

But the Sterling case involved a trial, not a grand jury investigation. If Risen were called to the stand and refused to testify (as he clearly would have), he could be jailed for contempt but the trial would have to go on. The judge would not, and could not, put the entire trial on hold for weeks or months to see whether Risen came around. And once the case was over, Risen would have to be released; a witness can’t be incarcerated to coerce him to testify when the proceeding where his testimony is required no longer exists.

In the end, therefore, the government would have had to endure all the fallout from jailing a reporter and the prosecution still would not have had the benefit of Risen’s testimony. Despite the government’s legal victories, Risen ultimately held all the cards so long as he was willing to go to jail for a few days until the trial was over. Given that reality, it made sense for the government to fold.

The Difficulty in Prosecuting Leak Cases 

The Sterling case highlights the problems with leak cases from a prosecutor’s perspective. First, they are notoriously difficult to investigate. Assuming the leak was to a member of the press, DOJ Guidelines will not allow the prosecutor even to attempt to speak to the only direct witness – the reporter – unless all other possible avenues have been exhausted (and maybe not even then).   That means a difficult investigation trying to identify and interview every potential source of the leak, scouring computers, e-mails and telephone records, and otherwise trying to establish proof sufficient to sustain a conviction with largely circumstantial evidence.

In the rare case where the prosecutor does seek information from the reporter, that effort will almost undoubtedly be met with fierce resistance. There will be a lengthy delay as the reporter, backed by top First Amendment lawyers, litigates whether he or she has a privilege to refuse to testify. Delay is bad for a prosecution: memories fade, witnesses become unavailable, and the case generally gets more difficult to prove.

Finally, if the case ultimately goes to trial, the government will be hamstrung in presenting its case. Matt Zapotosky had a nice piece in the Washington Post last week about the challenges of trying leak cases. To prove a leak of classified information the government has to expose at least some material that, by definition, was not supposed to be public. The Sterling case involved CIA officers testifying behind a screen to protect their identities and certain lines of questioning that were deemed out of bounds due to the restrictions on classified information. The government has to walk a tightrope between proving its case and still protecting the confidential information that led them to bring the case in the first place.

Sometimes these obstacles are insurmountable. In a high-profile embarrassment in 2011, the government was forced to drop felony charges against alleged leaker Thomas Drake after the judge ruled that Drake had to be allowed to reveal certain classified information in order to defend himself. Rather than reveal the information during the trial, the government allowed Drake to plead to a single misdemeanor.

No wonder leak prosecutions are relatively rare and are considered almost a no-win proposition by federal prosecutors.

The Hazards of Relying on Leakers

In his book, Risen claimed that Operation Merlin had been botched and may actually have helped Iran. (This was also Sterling’s view, which is one reason he was suspected to be Risen’s source.) CIA officials at Sterling’s trial painted a very different picture, testifying that the program had been working and that its disclosure damaged our efforts to thwart Iran’s nuclear program and may have put the lives of American assets overseas at risk.

It’s probably not surprising that government officials would have a different view of the program. Given its classified nature it may be years, if ever, before we know the full truth. But this does highlight the hazards for journalists of working with a leaker of classified information.

People leak information for all kinds of reasons, some of them noble and some not so noble. The government alleged that Sterling was a disgruntled former CIA employee who had been fired, had filed multiple personnel actions, and had an ax to grind. Such an individual has an incentive to leak information that makes the agency look bad and to slant their disclosures in a certain way.

A prosecutor working with an informant faces an analogous situation. A good prosecutor realizes that an informant may shade the truth or tell outright lies in order to make themselves look less culpable or to try to tell the prosecutors what the informant thinks they want to hear. If I have an informant telling me about a drug operation, I’m going to investigate to death everything they tell me and try to corroborate it with other witnesses and evidence. I don’t ever want to be in a position of having to take just the informant’s word for anything – or to ask a jury to do so. A prosecutor in such a case has to be wary of “falling in love” with his informant and accepting what they say uncritically.

Journalists, too, may “fall in love” with a source. A good journalist will recognize this risk, of course, but his options for corroborating the source are more limited. If a journalist receives illegally leaked classified information, other people are not likely to talk to him about it. He can’t make extensive inquiries without potentially exposing his source. Even if other government officials wanted to provide contrary information or a fuller picture, they may be unable to do so without revealing additional classified material.

When it comes to stories based on classified information there is a risk that a journalist, armed with what appears to be a juicy disclosure, will run a story based on incomplete or even inaccurate information. The journalist may be getting only one perspective and is seeing only what their source wants them to see. A good and professional journalist will do whatever possible to avoid this, but the risks are still there. And of course there are bad and careless journalists out there, just as there are bad and careless prosecutors.

I have no idea where the truth lies concerning Operation Merlin and I’m certainly no apologist for the excesses of the CIA during the “war on terror.” But given the choice between believing Sterling’s account (as reflected in Risen’s book) and that of the career CIA people who testified at his trial, I see no particular reason to believe Sterling. It seems perfectly plausible to me that the program was working and that its disclosure harmed national security. Only the most cynical partisan would argue that, simply because it’s the CIA, the operation must have been flawed and the officials at Sterling’s trial must have been perjuring themselves.

The broader cautionary point is that not all leakers are virtuous whistleblowers interested only in the public good, not all leaks are a good thing or are necessarily truthful, and just because a secret government operation is disclosed in the press doesn’t mean that the press got it right or got the whole story.

NY Times

The Reaction of the Press

 As you might expect, there has been a fair amount of ball-spiking by the media going on since the government dropped the Risen subpoena, with the press praising Risen as a hero and condemning the prosecution. The New York Times wrote an editorial last week called “Lessons of the James Risen Case,” criticizing the Obama administration’s supposed record of “aggressively attacking investigative journalism” and praising journalists like Risen who “stand up” to the government.

As I discussed in a previous post, leak cases are about trying to stop leaks and protect national security, not about attacking journalism. Due to the nature of the cases clashes with the press happen from time to time, but that’s a far cry from saying that journalism itself is under assault. Only a handful of leak cases are brought, and most of those do not involve attempts to subpoena a journalist.

The Times laments that the Risen case resulted in an “atrocious legal precedent” in the Fourth Circuit denying a reporter’s privilege.  But the Fourth Circuit’s decision was not some kind of new, groundbreaking result; it was a relatively straightforward application of Branzburg, the controlling Supreme Court case that the Times neglected to mention.

The Times and others also argue that the Risen incident demonstrates the need for a federal shield law for reporters. Privilege advocates argue that a shield law is essential to ensure that aggressive investigative reporting such as Risen’s will continue. I completely agree about the critical importance of investigative journalism, but this argument always baffles me. The leaks to Risen, as well as all of the leaks over the years concerning things such as Abu Ghraib, secret CIA prisons, Watergate, and so on, took place without a federal shield law. If anything, the fact that leaking has gone on at a robust pace in the absence of a shield law demonstrates that a shield law is unnecessary.

In any event, the proposed shield laws that have been kicking around Congress for the past decade all have contained exceptions where national security is concerned. Congress is understandably not willing to pass a law providing that sensitive classified information may be disclosed to reporters with impunity. Even if a federal shield law were in place, therefore, it likely would not have protected Risen in this case.

There are other significant obstacles to passing a shield law, including how to define who is a “journalist” entitled to the law’s protections. In the end, the Risen case is unlikely to have any significant effect on the long-stalled efforts to get a shield law through Congress.

The press outrage over James Risen and some other recent cases has already prompted the Department of Justice to further tighten the guidelines concerning when a prosecutor may seek information from a reporter. I expect clashes such as the one between Risen and DOJ are going to become even more rare in the future, and leak cases will become even more difficult to prosecute. That may be the real legacy of the Obama administration’s so-called “war on the press.”