DOJ guidelines for subpoenaing reporters are useful, but no substitute for a federal shield law
From the Fall 2004 issue of The News Media & The Law, page 4.
By Grant Penrod
When U.S. District Court Judge Susan Illston grew frustrated over repeated leaks of confidential information in the grand jury investigation into possible illegal steroid distribution by the BALCO company, federal prosecutors opted not to subpoena reporters who had received the leaked information.
Instead, prosecutors last summer sent letters to five journalists at the San Francisco Chronicle and the San Jose Mercury News asking for their cooperation. All of the reporters, supported by their newspapers, declined to reveal their confidential sources.
As of late October, prosecutors had not requested more information from the journalists, said Mercury News attorney James M. Chadwick, who does not believe that the prosecutors’ actions are necessarily a precursor to subpoenas. But, he said, “They haven’t said anything to us, so it is hard to guess.”
At least 16 other journalists have not fared as well and have been subpoenaed in five separate cases, including the grand jury investigation into allegations of corruption involving Providence, R.I., officials and the grand jury investigation into who leaked the identity of undercover CIA operative Valerie Plame.
In those cases, Justice Department guidelines that limit when and how federal prosecutors may subpoena reporters, their notes or their phone records did not prevent subpoenas. But even if the department did not follow its own guidelines, the failure to follow the rules could not be used in court to fight the subpoenas.
When negotiations such as those that apparently took place in the BALCO investigation between federal prosecutors and media organizations fail, the guidelines require that a subpoena may be issued only with the express authorization of the U.S. attorney general.
Maintaining the confidentiality of sources is essential to journalism. Without promises of confidentiality, many sources are unwilling to give journalists valuable information. Journalism advocates have long argued that when the confidentiality is breached, sources fall silent, leaving journalists — and ultimately the public — uninformed.
“The press simply cannot perform its intended role if its sources of information — particularly information about the government — are cut off,” wrote Arthur Ochs Sulzberger Jr. and Russell T. Lewis, publisher and chief executive of The New York Times, in an Oct. 10 editorial. “Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report.”
Shield laws in 31 states and the District of Columbia protect journalists from compelled disclosure of their notes and confidential sources in cases brought in state courts. But when journalists are subpoenaed in federal courts, there is no federal shield law to protect them. Following the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes that journalists have no First Amendment privilege to withhold confidential sources from a grand jury investigation, the federal circuits have split on what constitutional protections exist in federal courts for reporters.
The Department of Justice regulations provide some federal protection by limiting when and how federal prosecutors may subpoena reporters, their notes or their phone records. But gaps in the regulations and problems in how courts interpret them make them less effective than a federal shield law.
Following the Branzburg decision and alarm over subsequent FBI investigations that included monitoring of journalists, the Department of Justice in 1973 crafted guidelines to protect the news media from compelled testimony and disclosure of confidential sources in criminal cases. Protections for civil cases and for telephone records subpoenaed from journalists’ telephone providers were added in 1980.
“Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues,” state the guidelines, published in the Code of Federal Regulations at Title 28, Part 50.10.
The guidelines require that the Department of Justice exhaust all reasonable alternative sources of information before considering a subpoena of a journalist or a journalist’s phone records. The guidelines also require the department to attempt negotiations with the news media before subpoenaing a reporter. For telephone record subpoenas, negotiations are required where they “would not pose a substantial threat to the integrity of the investigation.”
When negotiations fail, the guidelines require the attorney general to consider a number of principles before authorizing a subpoena.
In criminal cases, there should be reasonably believable information from non-media sources that a crime has occurred, and the information sought from the news media should be essential to central aspects of the investigation, such as establishing guilt or innocence. In civil cases, there should be reasonably believable information from non-media sources that the information sought is essential to central aspects of a case of significant importance.
When telephone records are subpoenaed from a journalist’s phone company, the guidelines also require that the journalist be notified in advance unless it would pose “a clear and substantial threat to the integrity of the investigation.” In such a case notice must be given within 90 days of the subpoena.
Subpoenas should be as narrow as possible in time, volume and scope, and except under the most urgent circumstances should be limited to verifying published information. “Even subpoena requests for publicly disclosed information should be treated with care to avoid claims of harassment,” the guidelines state.
Despite these protections, there are still a number of gaps in the regulations that a comprehensive federal shield law could cover.
The guidelines apply only to subpoenas sought by the Department of Justice. On Aug. 18, Judge Thomas Penfield Jackson of the U.S. District Court in Washington D.C., held five reporters — Robert Drogin of the Los Angeles Times, H. Josef Hebert of the Associated Press, Jeff Gerth and James Risen of The New York Times, and Pierre Thomas, formerly of CNN, now with ABC News — in contempt of court for refusing to comply with subpoenas from a plaintiff in a civil case seeking confidential sources.
Former Los Alamos nuclear scientist Wen Ho Lee sought the subpoenas for his Privacy Act lawsuit against the Departments of Energy and Justice over information leaked to the press about a later-refuted FBI espionage investigation of Lee. Because the subpoenas were not sought by the Department of Justice, the guidelines provided no protection to the five journalists. Their $500-a-day fines have been stayed during an appeal of the contempt orders.
The guidelines also fail to protect journalists when subpoenas are sought by special prosecutors.
To determine who leaked sealed evidence to WJAR-TV investigative reporter Jim Taricani in two federal corruption cases involving Providence, R.I., officials, Judge Earnest C. Torres of U.S. District Court in Providence appointed a private attorney, Marc DeSisto, as special prosecutor. After interviewing 14 other witnesses, DeSisto subpoenaed Taricani.
Taricani challenged the subpoena but lost. The U.S. Court of Appeals in Boston (1st Cir.) ruled in June that although DeSisto would have satisfied the requirements of the guidelines anyway, they did not apply because DeSisto was not a Department of Justice employee. Taricani is currently paying $1,000 a day for refusing to reveal his source, a fine that has so far totaled more than $75,000. He is believed to be the only reporter now paying a fine for protecting a confidential source.
When a special prosecutor is appointed by the Department of Justice and the guidelines apply, journalists may still not be fully protected.
“When a special prosecutor is assigned and the attorney general or the Department of Justice is taken out of the loop completely, then typically what has happened in the past — and I think with some of the current things going on — is that the special prosecutor construes the guidelines, which require approval by the attorney general, to require only his approval,” said David Schulz, a media attorney with Levine, Sullivan, Koch & Schulz, in New York. “You eliminate one level of oversight that would normally exist.” Schulz, who represents The Associated Press, is leading an effort to rework the guidelines (see sidebar, page 5).
Even when the guidelines apply, problems exist in trying to use them as a defense after a subpoena has been issued.
New York Times in-house counsel George Freeman, who is working with Judith Miller in her fight against subpoenas in the Plame leak investigation and the Global Relief Foundation investigation, said grand jury secrecy rules make it difficult to use the guidelines as a basis for challenging subpoenas.
“Because we are in a grand jury context, even we don’t know all the facts,” Freeman said. “We haven’t even been privy to the showing that the government made as to what alternative sources they looked at, why this information is central. They submitted an affidavit, but not only is it under seal, we aren’t even allowed to see it.
“It is really untenable to not be able to argue whatever the best arguments are in the case,” he added. “If you’re going to throw somebody in jail on that basis it is an utter deprivation of due process.”
Patrick J. Fitzgerald, the federal prosecutor in Chicago who is also acting as the special prosecutor in the Plame leak investigation, obtained subpoenas for the telephone records of New York Times reporters Miller and Philip Shenon in the grand jury investigation into who leaked information about a planned raid on the Global Relief Foundation, an Islamic charity organization suspected of funding terrorists.
Fitzgerald requested subpoenas for the phone records after interviewing witnesses in 2002, but was turned down by the Department of Justice, The Washington Post reported. The subpoenas were granted this year, but it is unclear what, if anything, changed in two years.
The biggest obstacle to using the Department of Justice guidelines to oppose subpoenas is that courts do not enforce the guidelines as law. For the most part, they are considered purely advisory, and the Department of Justice can enforce them — or not enforce them — as it sees fit. In fact, the final sentence of the guidelines states, “The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person.”
Schulz points out that the decision to issue a subpoena “is not reviewable or challengeable by a reporter for violation of the guidelines, so they don’t really provide a protection, at least in those jurisdictions where there is no constitutional right recognized.”
Freeman says the limitation has meant that the guidelines do not provide a shield once a reporter has been subpoenaed. In the Plame and Global Relief Foundation investigations, he believes the conditions set forth in the guidelines for issuing a subpoena were not met, but courts have been unwilling to accept that challenge.
“They are a good thing, don’t get me wrong, but I just don’t think once you get to courts they are being used terribly helpfully or strictly,” he said. “The court views them as just internal protocols rather than creating substantive obligations.”
Despite the problems, both Freeman and Schulz agree that the guidelines are useful.
Freeman said the guidelines have been useful in avoiding many subpoenas, either because federal prosecutors could not clear the guideline’s hurdles or did not want to go through the hassle of getting the approval from the attorney general.
Schulz pointed out that the guidelines have been useful in providing guidance to federal prosecutors.
“The guidelines for the last 30 years or so have been a fairly effective means of focusing U.S. attorneys on the countervailing public interest in protecting reporters’ ability to gather the news and to dampen the instinct that would otherwise exist to use reporters and journalists as kind of an obvious avenue of information in connection with criminal investigations,” he said.
“A shield law that merely implemented the DOJ guidelines in and of itself would be a step forward in a lot of places,” Schulz said.