Can I settle a subpoena battle by agreeing to testify about published information?

Unfortunately, this option may not be as simple as it seems, particularly when the government seeks your testimony in a criminal matter, where the defendant is guaranteed the constitutional right to confront witnesses against him or her. 

Sometimes journalists are eager to "return the favor" and cooperate with government officials who have been useful and reliable sources by agreeing to testify and verify the accuracy of published information. This could be a dangerous practice, however, because it may expose the reporter to defense questioning about unreported, yet still protected information.

The U.S. Court of Appeals in New York (2nd Cir.) recently ruled that the restriction of a fraud defendant's cross-examination of a Wall Street Journal reporter called by the prosecution violated the defendant's Sixth Amendment right. In that case, attorneys for each side were only allowed to question the reporter about three statements attributed to the defendant in a Journal story. Under that limitation, the defense was prevented from asking about outside communications between the journalist and the defendant -- matters of likely relevance to a significant issue in the case, the court held. (The facts of this case are slightly different from those in the contemplated scenario because in the actual case, the reporter did not agree to testify and actually invoked his privilege not to when the government subpoenaed him; the trial court compelled his testimony but limited it to the three published statements. Thus, the results are the same -- a journalist testifying in a criminal case on behalf of the government about published information.)

If you are considering testifying as a government witness, keep in mind that you cannot have it both ways: The Sixth Amendment prohibits you from providing information to one side but declining it to a criminal defendant on the other. Accordingly, taking the stand for the government could require you to testify about unreported aspects of the relevant information -- insight into your motivation for reporting the information or details about the context in which published statements were made, for example. If you want this information to remain private, declining to cooperate with the government and invoking your statutory or other privilege instead provide the greatest protection against its compelled disclosure.