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From the Summer 2011 issue of The News Media & The Law, page 5.
A New York Times investigative reporter will not have to reveal the identity of his confidential source when he testifies in the criminal trial of an alleged CIA leaker, a federal judge recently held in a case involving the highest-profile journalist subpoena in recent years.
The U.S. Department of Justice subpoenaed two-time Pulitzer Prize winner James Risen in May for his testimony against Jeffrey Sterling, a former CIA operations officer who allegedly disclosed top-secret information about a botched operation intended to injure Iran’s nuclear program. Risen, who covers national security for the Times, purportedly published some of that information in Chapter 9 of his 2006 book “State of War.” Prosecutors wanted Risen to identify his source for the information.
The July 29 order by U.S. District Judge Leonie Brinkema in Alexandria, Va., marks the first time a journalist has successfully invoked the First Amendment-based reporter’s privilege to refuse to testify at both the grand jury and trial stages of a federal prosecution, media lawyers said. The milestone is a significant departure from the string of high-profile cases in the early- to mid-2000s that garnered bold headlines, significant public attention and hefty penalties against reporters, including Risen, held in contempt of court for refusing to reveal their confidential sources.
“I think this is an important victory for the First Amendment and for investigative reporting everywhere,” Joel Kurtzberg, Risen’s attorney, said in a telephone interview shortly after Brinkema’s order was released.
After a thorough analysis of the factors federal courts must consider in deciding motions to quash a subpoena for a journalist’s testimony, the judge found that Risen’s need to protect his source outweighed the government’s need to establish its case. That is, while Risen’s testimony is indeed relevant, prosecutors failed to show a compelling interest in it and an inability to obtain the information elsewhere, the opinion said. Accordingly, Brinkema largely quashed the subpoena, allowing Risen to keep his source secret and testify only as to the accuracy of his reporting.
The Department of Justice has taken steps indicating it plans to proceed with the trial. Notice of its intent to appeal the subpoena ruling is due at the end of August.
Notwithstanding Risen’s First Amendment-based privilege to refuse to disclose his source, the Constitution may not shield the reporter in other contexts, Brinkema said, explaining why the testimony of a former intelligence official who was reportedly told by Risen that Sterling was the source would be admissible evidence, despite the government’s claim that it is hearsay. Specifically, Risen’s testimony in this case would go against his penal interest because the unauthorized receipt of classified information is a federal felony, Brinkema said.
However, no journalist has been prosecuted for merely receiving classified information without authorization. Moreover, courts have found that recipients have a First Amendment defense to the charge in some contexts.
Yet, Brinkema’s statement that Risen’s alleged unauthorized receipt of classified information is a crime was likely not lost on the Department of Justice, which is aggressively filing criminal charges against individuals who leak government secrets to journalists. Sterling is one of five alleged leakers prosecuted under the Obama administration. The grand jury investigations for most of them, including Sterling, were launched by the previous administration.
Three subpoenas in three years
The federal government has sought Risen’s testimony in its prosecution of Sterling since January 2008. At that time, Risen was subpoenaed to appear before a federal grand jury in Alexandria, Va. Risen moved to quash the subpoena. The grand jury expired while that motion was pending, and, thus, Risen was not required to testify.
However, prosecutors in April 2010 renewed the grand jury subpoena for Risen’s testimony. He again moved to quash the subpoena, and Brinkema, in an order only recently made public, granted the motion to quash last November.
Despite the lack of Risen’s testimony, the grand jury in December indicted Sterling, of O’Fallon, Mo., on 10 counts, including unauthorized disclosure of national defense information and obstruction of justice. The indictment in United States v. Sterling alleges that Sterling, who worked at the CIA from 1993 until he was fired in 2002, had conflicts with the agency that culminated in his filing of a racial discrimination complaint. According to the indictment, these hostilities served as Sterling’s motivation for leaking the information.
Along with the subpoena for Risen’s testimony in Sterling’s trial, which has not yet been scheduled, prosecutors filed an accompanying motion in limine, a tool generally used to focus the evidence to be used at trial, in support of the subpoena, an unusual procedural move.
“James Risen is an eyewitness to the serious crimes with which the grand jury charged Sterling, and his testimony is directly relevant to, and powerful evidence of, the factual issues that the jury must decide at trial,” the government’s motion said. “Because he is an eyewitness, his testimony will simplify the trial and clarify matters for the jury. . . . His testimony . . . will allow for an efficient presentation of the Government’s case.”
In June, Risen moved to quash the trial subpoena. In addition to arguing that prosecutors failed to meet the standard required to overcome a journalist’s privilege from compelled disclosure of confidential sources, the motion alleged that the subpoena was an “effort to harass/intimidate a vocal critic of the government.”
“The Government’s current demands for Mr. Risen’s testimony are a serious threat, not only to Mr. Risen’s constitutional rights, but also to his livelihood,” which depends in large part on his ability to promise confidentiality to sources, the motion said.
Indeed, many, if not all, of the innumerable newspaper articles and several books Risen has authored, on topics including terrorism, national security, weapons of mass destruction and intelligence issues, would never have been written or disseminated to the public without this ability, according to his motion.
As support for Risen’s assertion that the effective performance of his job as an investigative reporter would be all but impossible without confidential sources, he submitted a sworn statement with his motion to quash and resubmitted declarations of several well-known journalists that were originally filed as part of the 2008 subpoena battle.
The journalists, who attested to the importance of confidential sources in American journalism, included Scott Armstrong and Carl Bernstein, former Washington Post reporters, and the late Jack Nelson, retired Washington, D.C., bureau chief for The Los Angeles Times, among others.
However, the government asserted that much of the information it sought was non-confidential information that would not require disclosure of the source’s identity, including facts about when and where Risen received the material and the names of individuals who were not his source, prosecutors told Brinkema in July during a hearing on the government’s motion in limine in support of the trial subpoena and Risen’s motion to quash it.
Yet, “[c]ourts have long held that the reporter’s privilege is not narrowly limited to protecting the reporter from disclosing the names of confidential sources, but also extends to information that could lead to discovery of a source’s identity,” she said in the opinion.
Basis for the privilege
Since the 1970s, most federal courts have recognized that reporters should have some type of qualified privilege shielding them from compelled disclosure of their confidential sources. The U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes, a consolidated case that involved three reporters subpoenaed to testify before three separate grand juries, set the tone for this protection.
The Branzburg Court ruled that reporters have no First Amendment right to refuse to answer all questions before grand juries if they actually witnessed criminal activity. However, the opinion was murky on the question of a reporter’s privilege, mainly because Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in two separate opinions.
Powell, while agreeing with the majority, wrote a concurrence in which he argued that reporters would still be able to contest subpoenas if they were issued in bad faith, or if there were no legitimate law enforcement need for the information. Stewart, in his dissent, made a much stronger case for a robust privilege, arguing that anything less would allow officials to “annex” the news media as “an investigative arm of government.”
Two other justices joined Stewart, and the four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the notion of a qualified constitutional privilege a majority. Thus, in the years following Branzburg, federal courts nationwide interpreted the case to give rise to a qualified privilege that typically balances a reporter’s right to protect the sources against the government’s need for the information.
Balancing the equities
In the U.S. Court of Appeals in Richmond, Va. (4th Cir.), which is the federal appellate court with jurisdiction over federal trial courts in Virginia, this balancing test is governed by the Fourth Circuit’s 1986 opinion in LaRouche v. National Broadcasting Co., Inc. Under this standard, a person seeking confidential information from a journalist who has invoked the reporter’s privilege to protect information obtained under a promise of confidentiality must show that there is a compelling interest in the information sought, and that such information is relevant to the claim and unobtainable by alternative means.
Relying on Branzburg, the government asserted that the First Amendment does not provide a reporter’s privilege that would shield Risen from compelled disclosure of his confidential sources. Assuming the privilege does exist, the government’s need for the information outweighs the public’s interest in keeping sources confidential, it argued.
Specifically, “the specific information the Government seeks from Risen cannot be obtained elsewhere” because “[n]o other person can provide eyewitness testimony that directly, as opposed to circumstantially, identifies Sterling as the individual who disclosed the national defense information,” according to the government’s motion to admit Risen’s testimony.
However, nothing requires a court in its evaluation of whether information is obtainable by alternative means to compare direct to circumstantial evidence, the court ruled. Courts have established that circumstantial evidence is no less reliable than direct evidence, according to the opinion. Moreover, the government has “numerous telephone records, email messages, computer files, and testimony that strongly indicates that Sterling was Risen’s source,” the court said.
In its discussion of the compelling interest factor, the court noted that the information must be necessary to a claim for a compelling interest to exist. Although the government argued that its burden of establishing Sterling’s guilt beyond a reasonable doubt creates a compelling interest in Risen’s testimony, it has not claimed that Risen’s testimony is necessary to proving Sterling’s guilt beyond a reasonable doubt, the court said. Rather, prosecutors claim Risen’s testimony will simplify the trial, clarify matters for the jury and allow the government to efficiently present its case, the opinion said.
“If making the trial more efficient or simpler were sufficient to satisfy the . . . compelling interest factor [of the balancing test], there would hardly be a qualified reporter’s privilege,” Brinkema said.
Grand jury v. trial standards
Risen’s case presents a good example of the different standards for motions to quash a grand jury subpoena and motions to quash a trial subpoena.
Simply put, the need for the information is arguably stronger where the evidentiary burden is higher. That is, evidence sufficient to establish probable cause at the grand jury stage may not be sufficient to prove a defendant’s guilt beyond a reasonable doubt, the much higher standard required at the trial stage.
Notably, Brinkema’s order quashing the grand jury subpoena to Risen said he may have more difficulty quashing a subpoena to testify in Sterling’s trial, compared to one seeking grand jury testimony.
“Were Sterling to be indicted and a trial subpoena to be issued to Risen, the analysis might well change, because at trial the government would have the much higher burden of proving Sterling’s guilt beyond a reasonable doubt,” Brinkema said.
Because the government, as mentioned above, claimed that Risen’s testimony was necessary not to prove Sterling’s guilt beyond a reasonable doubt but rather to help the trial run smoothly, the court did not analyze the issue in its order quashing the trial subpoena.
Despite these disparate standards, grand jury subpoenas seeking reporters’ testimony, provided they are not intended to harass, are often more difficult to quash in light of the Branzburg holding, said Charles Tobin, a Washington, D.C., media lawyer.
Tobin represented former CNN and current ABC News reporter Pierre Thomas, one of five journalists, including Risen, held in contempt of court and sanctioned for refusing to reveal confidential sources during a deposition in former nuclear scientist Wen Ho Lee’s Privacy Act claim.
Because Branzburg arose out of a grand jury context, a reporter facing a grand jury subpoena will likely have little success convincing a court that his or her situation is somehow different than the one in Branzburg, such that the journalist is privileged to refuse to testify notwithstanding the Branzburg holding, Tobin said.
On the other hand, the government’s higher burden of proof at the trial level may, as Brinkema’s grand jury subpoena order noted, increase its need for the reporter’s confidential information, thereby rendering a trial subpoena more difficult to quash, he added.
The higher standard “may potentially impact the need for the information at the trial level, but that need only informs the [determination]. It certainly doesn’t answer it,” Tobin said.