In re Grand Jury Subpoena, Judith Miller
397 F.3d 964 (2005)
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Rule of Law:
The First Amendment does not provide reporters with a privilege to refuse to disclose confidential sources to a grand jury conducting a good-faith criminal investigation. Any federal common law privilege that may exist is, at best, qualified and can be overcome by a sufficient showing of need by the government, especially in cases involving serious crimes.
Facts:
- In his January 2003 State of the Union Address, President George W. Bush stated that Saddam Hussein's government had sought uranium from Africa.
- In July 2003, former Ambassador Joseph Wilson published an op-ed piece claiming the CIA had sent him to Niger in 2002 and he had found no evidence to support the uranium claim.
- On July 14, 2003, columnist Robert Novak published an article identifying Wilson’s wife, Valerie Plame, as a CIA 'operative,' attributing this information to 'two senior administration officials.'
- On July 17, 2003, an article co-authored by appellant Matthew Cooper for Time.com stated that 'some government officials' had told Time that Plame was a CIA official involved in her husband's mission.
- Other media accounts reported that top White House officials had disclosed Plame’s identity and occupation to at least six journalists.
- The unauthorized disclosure of a covert agent's identity is a potential felony under federal law.
- The Department of Justice initiated an investigation into the disclosure of Plame's identity, which led to the empaneling of a federal grand jury.
Procedural Posture:
- Special Counsel Patrick Fitzgerald, overseeing a federal grand jury investigation, issued subpoenas to reporters Matthew Cooper and Judith Miller, and to publisher Time, Inc., seeking testimony and documents about confidential sources.
- The reporters and Time, Inc. moved to quash the subpoenas in the U.S. District Court for the District of Columbia, asserting a reporter's privilege.
- The District Court denied the motions to quash the subpoenas.
- After the reporters and Time, Inc. refused to comply with the court's orders, the District Court held all of them in civil contempt.
- The reporters and Time, Inc. (appellants) appealed the contempt orders to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does the First Amendment or federal common law afford a reporter a privilege to refuse to disclose the identity of a confidential source to a federal grand jury investigating the unauthorized disclosure of a covert government agent's identity?
Opinions:
Majority - Sentelle, J.
No. Neither the First Amendment nor federal common law provides an absolute privilege for reporters to conceal confidential sources from a grand jury. The Supreme Court's decision in Branzburg v. Hayes directly controls and rejects any First Amendment reporter's privilege in the context of a grand jury investigation. The Court in Branzburg held that the public's interest in investigating and prosecuting crimes outweighs the burden on newsgathering from compelling testimony. Justice Powell's concurrence in Branzburg did not create a qualified privilege but merely emphasized that the First Amendment protects reporters from bad-faith investigations, which is not at issue here. While the court is divided on the existence of a federal common law privilege, all judges agree that if such a privilege exists, it is qualified, not absolute, and has been overcome in this case by the Special Counsel's showing of need. Furthermore, the use of ex parte submissions to protect grand jury secrecy did not violate the appellants' due process rights, and the internal Department of Justice guidelines on subpoenaing reporters do not create any enforceable rights.
Concurring - Sentelle, J.
Judge Sentelle wrote separately to state that he would hold that there is no federal common law privilege for reporters before a grand jury. He argues that Branzburg v. Hayes is dispositive on the common law question as well as the constitutional one, as the Supreme Court repeatedly referenced and rejected such a privilege at common law. Furthermore, creating a reporter's privilege involves complex policy choices—such as defining who qualifies as a 'reporter' in the modern media landscape—that are better suited for the legislature (Congress) to decide, not the judiciary.
Concurring - Henderson, J.
Judge Henderson argued for judicial restraint, asserting that the court should not decide whether a federal common law reporter's privilege exists. Because all judges agree that any conceivable qualified privilege would be overcome by the Special Counsel's showing in this case, the court should simply assume, for the sake of argument, that such a privilege exists and hold that it is overcome on these facts. This approach represents the narrowest possible grounds for a decision and avoids making broader law on a difficult issue that is not necessary to resolve the case.
Concurring - Tatel, J.
Judge Tatel, concurring in the judgment, argued that while Branzburg forecloses a First Amendment privilege here, Federal Rule of Evidence 501 and the Supreme Court's reasoning in Jaffee v. Redmond support the creation of a qualified federal common law privilege for reporters. He noted that 49 states and the District of Columbia provide such protection. He proposed a balancing test weighing the public interest in disclosure (measured by the leak's harm) against the public interest in newsgathering (measured by the information's value), in addition to considering the government's need and exhaustion of alternatives. Applying this test, he concluded the privilege was overcome because the leak of a covert agent's identity causes grave harm to national security and has minimal news value, and the Special Counsel had demonstrated the testimony was essential to the investigation.
Analysis:
This decision reaffirms the binding precedent of Branzburg v. Hayes in the D.C. Circuit, firmly rejecting a First Amendment-based reporter's privilege before a grand jury. The separate opinions highlight a deep judicial split on the existence and scope of a federal common law privilege, an issue left open for future development under Federal Rule of Evidence 501. The case signals to journalists that while a common law privilege might be argued, it is unlikely to protect sources when a grand jury is investigating serious federal crimes, particularly those involving national security. The lack of a majority consensus on the common law issue leaves the law in this area unsettled and ripe for future litigation or Supreme Court review.
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