In re Grand Jury Subpoena, Miller
438 F.3d 1141, 370 U.S. App. D.C. 4, 2005 U.S. App. LEXIS 29476 (2005)
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Rule of Law:
The First Amendment does not provide journalists with a privilege to refuse to testify before a grand jury about their confidential sources. Any federal common law privilege that may exist for journalists is qualified, not absolute, and can be overcome by a sufficient government showing of need in a criminal investigation.
Facts:
- In his January 2003 State of the Union Address, President George W. Bush stated that Saddam Hussein had sought uranium from Africa.
- Former Ambassador Joseph Wilson published a New York Times op-ed claiming his 2002 CIA-sponsored trip to Niger found no credible evidence of such an attempt.
- Columnist Robert Novak subsequently published an article identifying Wilson's wife, Valerie Plame, as a CIA 'operative,' citing 'two senior administration officials' as his sources.
- An article co-authored by reporter Matthew Cooper on Time.com stated that 'Some government officials' told Time that Plame was a CIA official involved in dispatching her husband on the mission.
- Other media accounts reported that top White House officials had disclosed Plame's identity and occupation to at least six Washington journalists.
- The Department of Justice initiated an investigation into whether government employees had committed a federal crime by engaging in the unauthorized disclosure of a covert agent's identity.
- Reporter Judith Miller also had conversations with a government official concerning Valerie Plame during the relevant time period.
Procedural Posture:
- A federal grand jury, under the supervision of a Special Counsel, began an investigation into the unauthorized disclosure of a CIA operative's identity.
- The grand jury issued subpoenas to reporters Matthew Cooper and Judith Miller, and to publisher Time, Inc., seeking testimony and documents concerning their confidential sources.
- The reporters and Time, Inc. filed motions to quash the subpoenas in the U.S. District Court for the District of Columbia, asserting a reporter's privilege under the First Amendment and federal common law.
- The District Court denied the motions to quash the subpoenas.
- After the reporters and Time, Inc. continued to refuse to comply with the subpoenas, the District Court found them in civil contempt of court.
- Matthew Cooper, Judith Miller, and Time, Inc. (the appellants) appealed the District Court's contempt orders to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does a journalist have a First Amendment or federal common law privilege to refuse to reveal confidential sources to a grand jury investigating potential federal crimes?
Opinions:
Majority - Sentelle, Circuit Judge
No. Journalists do not have a privilege to refuse to reveal confidential sources to a grand jury. The Supreme Court's decision in Branzburg v. Hayes directly controls and rejects any First Amendment privilege for reporters in the context of a grand jury investigation. The Court in Branzburg held that a reporter's duty to provide evidence to a grand jury outweighs any incidental burden on newsgathering. Regarding a common law privilege, even if one exists, it is not absolute and was overcome in this case by the Special Counsel's evidentiary showing. The court also rejected the reporters' claims based on due process and the non-enforceable Department of Justice guidelines.
Concurring - Sentelle, Circuit Judge
No. I write separately to state that there is no federal common law reporter's privilege before a grand jury. The Supreme Court in Branzburg rejected such a privilege in both constitutional and common law terms. Creating such a privilege would involve complex policy decisions, such as defining who qualifies as a 'journalist' in the modern era of bloggers and pamphleteers, which is a task better suited for the legislative branch than the judiciary. Therefore, the court should not even reach the question of whether a qualified privilege was overcome, as no such privilege exists in the first place.
Concurring - Henderson, Circuit Judge
No. The court should exercise judicial restraint and not decide the difficult question of whether a federal common law reporter's privilege exists. Because the Special Counsel's evidentiary showing is sufficient to overcome any qualified privilege the court might recognize, it is unnecessary to define the privilege's existence or contours. The proper and narrowest course is to assume for the sake of argument that a privilege exists and hold that it has been defeated on these facts, thereby avoiding a 'wide-angle adjudication' on a complex issue.
Concurring - Tatel, Circuit Judge
No. While I concur in the judgment, I believe that federal common law, under Federal Rule of Evidence 501, does recognize a qualified reporter's privilege, informed by the consensus among the states. This privilege requires courts to balance the public interest in compelling disclosure against the public interest in newsgathering. In this specific case, the balance favors disclosure because the leak of a covert agent's identity caused grave harm to national security and had minimal news value. Because the Special Counsel made a compelling showing that the testimony was necessary and that alternative sources were exhausted, the qualified privilege is overcome.
Analysis:
This decision solidifies the D.C. Circuit's rejection of a First Amendment-based reporter's privilege in grand jury proceedings, mandating strict adherence to the Supreme Court's precedent in Branzburg. The fractured opinions on the common law privilege, however, highlight a significant area of legal uncertainty. While the court ultimately forces the reporters to testify, the differing rationales—from no privilege at all (Sentelle), to avoiding the question (Henderson), to a qualified privilege that is overcome (Tatel)—demonstrate the ongoing judicial struggle to balance law enforcement needs against the public interest in a free press. This case serves as a stark warning to journalists that promises of confidentiality are not legally protected when a federal grand jury investigates serious crimes, particularly those involving national security.
