Leaks and the Law

What happens when the journalistic principle of protecting confidential sources clashes with the public interest in prosecuting a crime? A cross-examination

Who is Patrick J. Fitzgerald, and why is the press so upset with him?

Patrick J. Fitzgerald is the United States attorney for the Northern District of Illinois, based in Chicago. He was widely regarded as an excellent prosecutor and a fine man. Late last year, however, Deputy Attorney General James B. Comey Jr. asked Fitzgerald to take on the role of special counsel in investigating the leak to the columnist Robert Novak of Valerie Plame's status as an undercover CIA operative. Plame, you'll recall, is the wife of the former ambassador Joseph Wilson IV, who riled the Bush Administration by publicly taking issue, after investigating the matter for the CIA, with the President's claims about Iraqi attempts to buy uranium in Niger. Knowingly leaking an operative's identity can be a crime, and Fitzgerald has taken his investigation seriously—far too seriously, from the press's point of view. In the course of trying to solve the whodunit, Fitzgerald has committed the biggest no-no in any prosecutor's relationship with the media: he has subpoenaed reporters to testify before a grand jury about their sources.

As of this writing Fitzgerald has obtained testimony from Tim Russert, of NBC; Matthew Cooper, of Time; and Glenn Kessler and Walter Pincus, of The Washington Post, about their conversations with Vice President Dick Cheney's chief of staff, I. Lewis Libby—who has waived confidentiality and who, all reportedly said, did not disclose Plame's identity. In addition, Pincus, after resisting the subpoena, testified concerning his conversation with a still unidentified source, after that source talked to prosecutors about the conversation and informed Pincus through counsel that he had no problem with Pincus's doing so as well. Fitzgerald is currently after Judith Miller, of The New York Times—who investigated the matter but never actually wrote about it—and has issued a second subpoena to Cooper. Novak has not said whether he has received a subpoena.

Now William Safire has called Fitzgerald a "runaway prosecutor" who is "after the press with a vengeance and a blunderbuss." The New York Times headlined its editorial about the Plame investigation "A Leak Probe Gone Awry." The Wall Street Journal, upset about the whole business from the beginning, complained back in July that "the entire leak probe now looks like a familiar Beltway case of criminalizing political differences," and urged Fitzgerald to "fold up his tent."

But how can Fitzgerald subpoena reporters? Isn't there some kind of privilege that protects the press?

The short answer is yes and no. The press always argues that the reporter-source relationship is entitled to protection in the courts, and reporters generally refuse to give up their sources in investigations. But in the 1972 case of Branzburg v. Hayes, the Supreme Court rejected the notion that the First Amendment's guarantee of a free press necessarily implies a reporter's privilege to keep confidential sources anonymous before a grand jury. That would seem to be the end of the matter—except that because of the way the sharply divided Court ruled, with four justices dissenting and one, Lewis Powell, writing an anguished concurrence, the press has had some room to argue that Branzburg was a kind of victory in defeat's clothing. This argument has gained traction in the lower courts, which have often found a measure of protection for the press in civil proceedings and criminal trials—holding that reporters should not have to testify unless the information is crucial and unavailable elsewhere. Moreover, many states have passed what are called shield laws, which effectively make the reporter's privilege a matter of statute.

Congress, however, has never passed a federal shield law, and the privilege is at its weakest in a grand-jury setting—because that is precisely the setting in which the Court rejected it in Branzburg. Consequently, Chief Judge Thomas Hogan, of the district court in Washington, who is overseeing the grand jury in the Plame probe, has rejected motions by reporters to quash the subpoenas; he briefly held Cooper in contempt last summer when the Time reporter defied the order to testify, and in October held in contempt both Cooper and Judith Miller, who are appealing the ruling. Technically, reporters are quite vulnerable to federal prosecutors if those prosecutors really want their testimony.

So why don't prosecutors do this more often?

Confrontations of this type are surprisingly rare, given the number of leaks—particularly leaks of grand-jury material. To a great extent this reflects the deference the Justice Department voluntarily shows to the role of the press in a democratic society. Anonymous sources, whether or not protecting them is privileged, are a key part of the newsgathering process. So department regulations frown on press subpoenas that are not absolutely necessary.

Moreover, the press's institutional defenses against subpoenas are stronger than one would imagine from reading Branzburg. A prosecutor who contemplates hauling a reporter in front of a grand jury knows he's going to have to litigate. He also knows that even if he wins, the reporter will most likely go to jail rather than give up a source; and even if a judge is willing to hold a reporter in contempt, it is rare for a court to use its coercive powers in anything more than token form. Even if a prosecutor wins the fight, he probably won't get the information he wants.

Consequently, to a certain extent the privilege exists beyond its legal reality, for the simple reason that very few judges view a reporter who is protecting a source as they would a recalcitrant witness like, say, Susan McDougal—who was jailed for many months for refusing to answer a grand jury's questions about Bill Clinton's Arkansas business dealings. Even when the law makes no distinction between a Miller and a McDougal, the reporter's silence is generally understood to be honorable.

Presented by

Benjamin Wittes is an editorial writer specializing in legal affairs for The Washington Post, and the author of Starr: A Reassessment. The views expressed here are his own.

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