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

By Benjamin Wittes

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.

Aren't the members of the press just being a bunch of hypocrites, who delightedly expose everyone else's secrets but whine when their own are on the line?

The core of the press's concern is very serious. Citizens expect reporters to dig up and serve them information they can't get by themselves. Crucial stories that have helped define the public's relationship with government simply would not have been possible without confidential sourcing; Watergate is only the most famous example. A journalist who does not try to solicit nonpublic information is just not committed to informing the public. Contributing knowledge to the public domain requires that journalists promise some of their sources confidentiality. Consequently, the public interest in respecting those promises is very strong. Other such interests are shielded by law: attorney-client discussions, the silence of the confessional, confidential communications within marriage, and patients' disclosures to their therapists all enjoy some protection against compelled testimony.

Still, there is a certain amount of hypocrisy in the vociferous denunciations of Fitzgerald. In none of these other protected relationships is the party who claims the right to withhold testimony directly involved in the transgression being investigated. A priest, for example, may hear a confession of criminal behavior, but the confession itself is not the alleged crime under investigation. The oddity of the reporter's privilege is that reporters themselves are sometimes party to the improper—and occasionally illegal—disclosures that they then ask to be protected from testifying about. Leaks are the press's lifeblood. Many reporters are temperamentally incapable of seeing the damage they sometimes cause to privacy rights or security interests. A good leak always serves the reporter's interest. Too often, however, the press appears incapable of distinguishing between what is good for the press and what is good for the public. The press has a major conflict of interest in commenting on leak probes—a conflict about which media organizations are not always honest in their pious protestations that a given subpoena threatens the First Amendment.

Do you have a conflict of interest in writing this article?

Let me count the ways.

Two of my colleagues at The Washington Post have been in Fitzgerald's sights. One of them, Walter Pincus, I know well and consider a friend. In addition, I personally have conversations all the time with people whom I assure of my discretion. Such conversations inform, directly or indirectly, just about everything I write—including this piece.

And you'd go into contempt to protect those sources?

Of course.

And the law ought to relieve you of that burden?

I am personally comfortable with the risk that any leak probe might carry for me—not because of any great courage on my part but because I seldom publish information that's likely to trigger an investigation. Still, current law—under which it is hard to predict whether the lower courts will recognize the privilege—does seem both dishonest and unstable. Whatever he may argue in court, even Fitzgerald acknowledges that the reporters he is forcing to testify are different from his other witnesses. He has negotiated compromise arrangements with some of them that would be unimaginable with nonjournalistic witnesses: for example, the journalists have not actually appeared before the grand jury but have given depositions instead. And Pincus didn't name his source even when he answered limited questions about his conversation with that person, an account of which had already been published. It would be far healthier if the law uniformly reflected the reality that reporters are different. Under federal rules the courts can recognize new privileges in light of "reason and experience." Having the courts recognize a qualified privilege that balances the public interest in a story against the prosecutor's needs in the case at hand seems a sensible way to even things out. Dissenting in Branzburg, Justice Potter Stewart wrote that the privilege he would recognize could be overridden if prosecutors showed that their "inquiry [is] of 'compelling and overriding importance'" and "'convincingly' demonstrate[d] that the investigation is 'substantially related' to the information sought." He wrote, "They must demonstrate that it is reasonable to think the witness in question has that information. And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties."

Delineating the reporter's privilege is no easy task. Should it apply to every blogger or freelance writer in whose ear the target of a criminal investigation whispers an interesting tidbit? When, exactly, should a reporter be protected, and when exposed? Moreover, it's not clear that even a qualified privilege would have stopped Fitzgerald. Judge Hogan has specifically said that even assuming such a privilege exists, Fitzgerald's testimony about his investigation and its needs has "established that Special Counsel would be able to meet even the most stringent of balancing tests."

But having a clearly recognized privilege would offer some protection to reporters, who shouldn't have to risk jail in order to do what everyone recognizes is their job. It would also offer some protection to Fitzgerald and other prosecutors, who might—if the law more closely reflected social expectations—be allowed to do their job without becoming pariahs.

This article available online at:

http://www.theatlantic.com/magazine/archive/2004/12/leaks-and-the-law/303602/