In Re Grand Jury Subpoena, Miller

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2004 Decided February 15, 2005

Reissued February 3, 2006

Reissued June 29, 2007

No. 04-3138

IN RE: GRAND JURY SUBPOENA, JUDITH MILLER

Consolidated with

04-3139, 04-3140

Appeals from the United States District Court

for the District of Columbia

(No. 04mc00407)

(No. 04mc00460)

(No. 04mc00461)

Floyd Abrams argued the cause for appellants. With him on

the briefs was Joel Kurtzberg. Donald J. Mulvihill entered an

appearance.

Reid Alan Cox was on the brief for amicus curiae Center for

Individual Freedom in support of appellants.

Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were

on the brief for amici curiae Magazine Publishers of America,

Inc., et al. in support of appellants.

James P. Fleissner, Assistant U.S. Attorney, argued the

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cause and filed the brief for appellee.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment filed by Circuit Judge

TATEL.

SENTELLE, Circuit Judge: An investigative reporter for the

New York Times; the White House correspondent for the

weekly news magazine Time; and Time, Inc., the publisher of

Time, appeal from orders of the District Court for the District of

Columbia finding all three appellants in civil contempt for

refusing to give evidence in response to grand jury subpoenas

served by Special Counsel Patrick J. Fitzgerald. Appellants

assert that the information concealed by them, specifically the

identity of confidential sources, is protected by a reporter’s

privilege arising from the First Amendment, or failing that, by

federal common law privilege. The District Court held that

neither the First Amendment nor the federal common law

provides protection for journalists’ confidential sources in the

context of a grand jury investigation. For the reasons set forth

below, we agree with the District Court that there is no First

Amendment privilege protecting the evidence sought. We

further conclude that if any such common law privilege exists,

it is not absolute, and in this case has been overcome by the

filings of the Special Counsel with the District Court. We

further conclude that other assignments of error raised by

appellants are without merit. We therefore affirm the decision

of the District Court.

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I. Background

According to the briefs and record before us, the

controversy giving rise to this litigation began with a political

and news media controversy over a sixteen-word sentence in the

State of the Union Address of President George W. Bush on

January 28, 2003. In that address, President Bush stated: “The

British government has learned that Saddam Hussein recently

sought significant quantities of uranium from Africa.” The

ensuing public controversy focused not on the British source of

the alleged information, but rather on the accuracy of the

proposition that Saddam Hussein had sought uranium, a key

ingredient in the development of nuclear weaponry, from Africa.

Many publications on the subject followed. On July 6, 2003, the

New York Times published an op-ed piece by former

Ambassador Joseph Wilson, in which he claimed to have been

sent to Niger in 2002 by the Central Intelligence Agency

(“CIA”) in response to inquiries from Vice President Cheney to

investigate whether Iraq had been seeking to purchase uranium

from Niger. Wilson claimed that he had conducted the

requested investigation and reported on his return that there was

no credible evidence that any such effort had been made.

On July 14, 2003, columnist Robert Novak published a

column in the Chicago Sun-Times in which he asserted that the

decision to send Wilson to Niger had been made “routinely

without Director George Tenet’s knowledge,” and, most

significant to the present litigation, that “two senior

administration officials” told him that Wilson’s selection was at

the suggestion of Wilson’s wife, Valerie Plame, whom Novak

described as a CIA “operative on weapons of mass destruction.”

Robert Novak, The Mission to Niger, CHI. SUN-TIMES, July 14,

2003, at 31. After Novak’s column was published, various

media accounts reported that other reporters had been told by

government officials that Wilson’s wife worked at the CIA

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monitoring weapons of mass destruction, and that she was

involved in her husband’s selection for the mission to Niger.

One such article, published by Time.com on July 17, 2003, was

authored in part by appellant Matthew Cooper. That article

stated that:

Some government officials have noted to Time in

interviews . . . that Wilson’s wife, Valerie Plame, is a CIA

official who monitors the proliferation of weapons of mass

destruction . . . [and] have suggested that she was involved

in the husband’s being dispatched to Niger to investigate

reports that Saddam Hussein’s government had sought to

purchase large quantities of uranium ore . . . .

Matthew Cooper et al., A War on Wilson?, TIME.COM, at

http://www.time.com/time/nation/article/0,8599,465270,00.html

(Dec. 13, 2004). Other media accounts reported that “two top

White House officials called at least six Washington journalists

and disclosed the identity and occupation of Wilson’s wife.”

Mike Allen & Dana Priest, Bush Administration is Focus of

Inquiry; CIA Agent’s Identity was Leaked to Media, WASH.

POST, Sept. 28, 2003, at A1. The Department of Justice

undertook an investigation into whether government employees

had violated federal law by the unauthorized disclosure of the

identity of a CIA agent. See, e.g., 50 U.S.C. § 421

(criminalizing, inter alia, disclosure of the identity of a covert

agent by anyone having had authorized access to classified

information). As the investigation proceeded, in December of

2003, the Attorney General recused himself from participation

and delegated his full authority in the investigation to the

Deputy Attorney General as Acting Attorney General. The

Deputy, in turn, appointed Patrick J. Fitzgerald, United States

Attorney for the Northern District of Illinois, as Special Counsel

and delegated full authority concerning the investigation to him.

As part of the ongoing investigation, a grand jury investigation

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began in January of 2004.

In cooperation with Special Counsel Fitzgerald, the grand

jury conducted an extensive investigation. On May 21, 2004, a

grand jury subpoena was issued to appellant Matthew Cooper,

seeking testimony and documents related to two specific articles

dated July 17, 2003, and July 21, 2003, to which Cooper had

contributed. Cooper refused to comply with the subpoena, even

after the Special Counsel offered to narrow its scope to cover

only conversations between Cooper and a specific individual

identified by the Special Counsel. Instead, Cooper moved to

quash the subpoena on June 3, 2004. On July 6, 2004, the Chief

Judge of the United States District Court for the District of

Columbia denied Cooper’s motion in open court, and confirmed

the denial with reasoning set forth in a written order issued on

July 20, 2004.

A further grand jury subpoena was issued to Time, Inc.,

seeking the same documents requested in the subpoena to

Cooper. Time also moved to quash its subpoena. On August 6,

2004, the District Court denied Time’s motion. Both Cooper

and Time refused to comply with the subpoenas despite the

District Court’s denial of their motions to quash. The District

Court thereafter found that Cooper and Time had refused to

comply with the subpoenas without just cause and held them in

civil contempt of court. After both Cooper and Time had filed

appeals, and further negotiations between Special Counsel and

the two had proceeded, Cooper agreed to provide testimony and

documents relevant to a specific source who had stated that he

had no objection to their release. Cooper and Time fulfilled

their obligations under the agreement, the Special Counsel

moved to vacate the District Court’s contempt order, and the

notices of appeal were voluntarily dismissed.

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On September 13, 2004, the grand jury issued a further

subpoena to Cooper seeking “[a]ny and all documents . . .

[relating to] conversations between Matthew Cooper and official

source(s) prior to July 14, 2003, concerning in any way: former

Ambassador Joseph Wilson; the 2002 trip by former

Ambassador Wilson to Niger; Valerie Wilson Plame, a/k/a

Valerie Wilson, a/k/a Valerie Plame (the wife of former

Ambassador Wilson); and/or any affiliation between Valerie

Wilson Plame and the CIA.” An August 2, 2004 subpoena to

Time requested “[a]ll notes, tape recordings, e-mails, or other

documents of Matthew Cooper relating to the July 17, 2003

Time.com article entitled ‘A War on Wilson?’ and the July 21,

2003 Time Magazine article entitled, ‘A Question of Trust.’”

Cooper and Time again moved to quash the subpoenas, and on

October 7, 2004, the District Court denied the motion. The two

refused to comply with the subpoenas, and on October 13, 2004,

the District Court held that their refusal was without just cause

and held both in contempt.

In the meantime, on August 12 and August 14, grand jury

subpoenas were issued to Judith Miller, seeking documents and

testimony related to conversations between her and a specified

government official “occurring from on or about July 6, 2003,

to on or about July 13, 2003, . . . concerning Valerie Plame

Wilson (whether referred to by name or by description as the

wife of Ambassador Wilson) or concerning Iraqi efforts to

obtain uranium.” Miller refused to comply with the subpoenas

and moved to quash them. The District Court denied Miller’s

motion to quash. Thereafter, the court found that Miller had

refused to comply without just cause and held her in civil

contempt of court also. She also has appealed.

The appellants have proceeded with common counsel and

common briefing in a consolidated proceeding before this court.

They assert four theories for reversal. Their first claim is that

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the First Amendment affords journalists a constitutional right to

conceal their confidential sources even against the subpoenas of

grand juries. Secondly, they claim that reporters enjoy an

evidentiary privilege under the common law to conceal

confidential sources. Adjunct to this claim, while denying that

the privilege is less than absolute, they argue that if the privilege

is in fact qualified, the United States has not overcome the

privilege. Thirdly, appellants argue that their due process rights

were violated by the Special Counsel’s ex parte and in camera

submission of evidence to the court to establish that the United

States had overcome any qualified privilege. Finally, they argue

that the Special Counsel failed to comply with Department of

Justice guidelines for the issuance of subpoenas to journalists,

and that the failure to comply is an independent ground for

reversal of their contempt conviction. Finding no grounds for

relief under the First Amendment, due process clause, or

Department of Justice guidelines, and persuaded that any

common law privilege that exists would be overcome in this

case, we affirm the judgment of the District Court for the

reasons set out more fully below.

II. Analysis

A. The First Amendment Claim

In his opinion below, the Chief District Judge held that “a

reporter called to testify before a grand jury regarding

confidential information enjoys no First Amendment

protection.” In Re Special Counsel Investigation, 332 F. Supp.

2d 26, 31 (D.D.C. 2004). Appellants argue that “this proposition

of law is flatly contrary to the great weight of authority in this

and other circuits.” Appellants are wrong. The governing

authority in this case, as the District Court correctly held, comes

not from this or any other circuit, but the Supreme Court of the

United States. In Branzburg v. Hayes, 408 U.S. 665 (1972), the

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Highest Court considered and rejected the same claim of First

Amendment privilege on facts materially indistinguishable from

those at bar.

Like the present case, Branzburg was a consolidated

proceeding involving multiple contempt proceedings against

news media defendants. The named petitioner, Branzburg, had

been held in contempt in two related proceedings, arising from

one extended task of investigative journalism. The first arose

from an article published by his employer, a daily newspaper,

describing his observation of two Kentucky residents

synthesizing hashish from marijuana as part of a profitable

illegal drug operation. The article included a photograph “of

hands working above a laboratory table on . . . a substance

identified . . . as hashish.” 408 U.S. at 667. A Kentucky grand

jury subpoenaed the journalist who “refused to identify the

individuals he had seen possessing marihuana or the persons he

had seen making hashish from marihuana.” Id. at 668.

Branzburg claimed privilege both under the First Amendment of

the United States Constitution and various state statutory and

constitutional provisions. He was held in contempt and the

proceeding eventually made its way to the Supreme Court.

The second case involving petitioner Branzburg arose out

of a later article published by the same newspaper describing the

use of drugs in Frankfort, Kentucky. According to the article,

this publication was the product of two weeks spent

interviewing drug users in the area. The article further reported

that its author had seen some of his sources smoking marijuana.

The article related numerous conversations with and

observations of unnamed drug users. Branzburg was again

subpoenaed to appear before a Kentucky grand jury “to testify

in the matter of violation of statutes concerning use and sale of

drugs,” id. at 669 (internal quotation marks omitted). Branzburg

moved to quash the subpoena. The motion was denied. The

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journalist sought the protection of the Kentucky Court of

Appeals by way of mandamus and prohibition, claiming “that if

he were forced to go before the grand jury or to answer

questions regarding the identity of informants or disclose

information given him in confidence, his effectiveness as a

reporter would be greatly damaged.” Id. at 670. The Kentucky

courts rejected Branzburg’s claim of a First Amendment

privilege. Again, he petitioned for certiorari in the Supreme

Court.

The consolidated petitions in Branzburg also included In re

Pappas. Petitioner Pappas was a television newsman-

photographer for a Massachusetts television station. On July 30,

1970, during a time of civil unrest in New Bedford,

Massachusetts, he gained entrance to the headquarters of the

Black Panther Party, upon his agreement not to disclose

anything he saw or heard inside the headquarters. Subsequently,

he was subpoenaed to appear before a Massachusetts grand jury.

Although he appeared and answered other questions, he refused

to answer any questions about what had taken place inside the

Black Panther headquarters, “claiming that the First Amendment

afforded him a privilege to protect confidential informants and

their information.” Id. at 673. The Massachusetts trial court

denied his motion to quash made on First Amendment and other

grounds and ruled that the journalist “had no constitutional

privilege to refuse to divulge to the grand jury what he had seen

and heard, including the identity of persons he had observed.”

Id. Like Branzburg, Pappas petitioned for certiorari to the

United States Supreme Court.

In the final petition consolidated in the Branzburg

proceedings, the Court considered the petition for certiorari of

the United States from a decision of the Ninth Circuit Court of

Appeals, Caldwell v. United States, 434 F.2d 1081 (9th Cir.

1970), in which the circuit had recognized a qualified

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testimonial privilege for newsmen arising from the First

Amendment and allowing a reporter claiming protection under

the privilege to refuse to testify before a grand jury investigating

allegations of violations of numerous criminal statutes by the

Black Panther Party in California. The reporter in Caldwell had

engaged in investigative journalism directed toward the Black

Panthers at a time when they were suspected of such crimes as

making threats against the President of the United States and a

possible conspiracy to assassinate the President, as well as

interstate travel to incite rioting and the commission of mail

frauds and swindles. He claimed to have obtained information

from confidential informants.

As can be seen from the account of the underlying facts in

Branzburg, there is no material factual distinction between the

petitions before the Supreme Court in Branzburg and the

appeals before us today. Each of the reporters in Branzburg

claimed to have received communications from sources in

confidence, just as the journalists before us claimed to have

done. At least one of the petitioners in Branzburg had witnessed

the commission of crimes. On the record before us, there is at

least sufficient allegation to warrant grand jury inquiry that one

or both journalists received information concerning the identity

of a covert operative of the United States from government

employees acting in violation of the law by making the

disclosure. Each petitioner in Branzburg and each journalist

before us claimed or claims the protection of a First Amendment

reporter’s privilege. The Supreme Court in no uncertain terms

rejected the existence of such a privilege. As we said at the

outset of this discussion, the Supreme Court has already decided

the First Amendment issue before us today.

In rejecting the claim of privilege, the Supreme Court made

its reasoning transparent and forceful. The High Court

recognized that “the grand jury’s authority to subpoena

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witnesses is not only historic . . . but essential to its task.” 408

U.S. at 688 (citation omitted). The grand juries and the courts

operate under the “longstanding principle that ‘the public has a

right to every man’s evidence,’ except for those persons

protected by constitutional, common law, or statutory privilege.”

Id. (citations and internal punctuation omitted). The Court then

noted that “the only testimonial privilege for unofficial

witnesses that is rooted in the Federal Constitution is the Fifth

Amendment privilege against compelled self-incrimination.” Id.

at 689-90. The Court then expressly declined “to create another

by interpreting the First Amendment to grant newsmen a

testimonial privilege that other citizens do not enjoy.” Id. at

690. In language as relevant to the alleged illegal disclosure of

the identity of covert agents as it was to the alleged illegal

processing of hashish, the Court stated that it could not

“seriously entertain the notion that the First Amendment protects

a newsman’s agreement to conceal the criminal conduct of his

source, or evidence thereof, on the theory that it is better to write

about a crime than to do something about it.” Id. at 692.

Lest there be any mistake as to the breadth of the rejection

of the claimed First Amendment privilege, the High Court went

on to recognize that “there remain those situations where a

source is not engaged in criminal conduct but has information

suggesting illegal conduct by others.” Id. at 693. As to this

category of informants, the Court was equally adamant in

rejecting the claim of First Amendment privilege:

[W]e cannot accept the argument that the public interest in

possible future news about crime from undisclosed,

unverified sources must take precedence over the public

interest in pursuing and prosecuting those crimes reported

to the press by informants and in thus deterring the

commission of such crimes in the future.

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Id. at 695.

The Branzburg Court further supported the rejection of this

claimed privilege by the commonsense observation that “it is

obvious that agreements to conceal information relevant to the

commission of crime have very little to recommend them from

the standpoint of public policy.” Id. at 696. While the Court

recognized the right of the press to abide by its agreements not

to publish information that it has, the Court stated unequivocally

that “the right to withhold news is not equivalent to a First

Amendment exemption from an ordinary duty of all other

citizens to furnish relevant information to a grand jury

performing an important public function.” Id. at 697.

We have pressed appellants for some distinction between

the facts before the Supreme Court in Branzburg and those

before us today. They have offered none, nor have we

independently found any. Unquestionably, the Supreme Court

decided in Branzburg that there is no First Amendment privilege

protecting journalists from appearing before a grand jury or

from testifying before a grand jury or otherwise providing

evidence to a grand jury regardless of any confidence promised

by the reporter to any source. The Highest Court has spoken and

never revisited the question. Without doubt, that is the end of

the matter.

Despite the absolute and unreversed answer to the question

of constitutional privilege by the Supreme Court in Branzburg,

appellants nonetheless persist in arguing that the District Court

erred in concluding that journalists subpoenaed to reveal their

confidential sources before federal grand juries enjoy no First

Amendment protection. They base this argument on the

concurring opinion of Justice Powell in Branzburg and a case

from this circuit, Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir.

1981). These authorities, either separately or together, provide

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no support for the existence of such a privilege protecting

reporters subpoenaed to a grand jury. Appellants’ argument

concerning Justice Powell’s concurrence begins with the fact

that the decision of the Supreme Court was reached by a 5-4

divided Court. Thus, each of the justices joining in the result

was essential to the result. Therefore, appellants argue, it is the

opinion of the least encompassing justice which determines the

precedent set by the decision rather than the decision which

appellants style a “plurality” opinion authored by Justice White.

In support of this proposition, they advance an argument that

first admits that when the opinion of an individual justice is not

needed for a majority his separate opinion is not a gloss giving

authoritative definition to the majority opinion in which he did

not join, but rather is no more than his separate thoughts, and

“the meaning of a majority opinion is to be found within the

opinion itself.” McKoy v. North Carolina, 494 U.S. 433, 448

n.3 (1990) (Blackmun, J., concurring). But, appellants argue,

when the individual justice is needed to constitute the majority,

“the opinion is not a majority except to the extent that it agrees

with his views. What he writes is not a ‘gloss’ but the least

common denominator.” That is to say, the separate opinion

“cannot add to what the majority opinion holds, binding the

other four justices to say what they have not said; but it can

assuredly narrow what the majority opinion holds, by explaining

the more limited interpretation adopted by a necessary member

of that majority . . . .” Id. at 462 n.3 (Scalia, J., joined by

Rehnquist, C.J., and O’Connor, J., dissenting).

Without attempting to resolve any dispute or difference that

may exist between Justice Blackmun and the three dissenting

justices in McKoy, even if we accept Justice Scalia’s analysis at

full value, it does not help appellants in this case. Justice

Powell’s concurring opinion was not the opinion of a justice

who refused to join the majority. He joined the majority by its

terms, rejecting none of Justice White’s reasoning on behalf of

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the majority. He wrote separately “to emphasize” what seemed

to him “to be the limited nature of the Court’s holding.” 408

U.S. at 709 (Powell, J., concurring). Justice White’s opinion is

not a plurality opinion of four justices joined by a separate

Justice Powell to create a majority, it is the opinion of the

majority of the Court. As such it is authoritative precedent. It

says what it says. It rejects the privilege asserted by appellants.

Nonetheless, appellants urge that Justice Powell must have

been contemplating the creation or recognition of some further

sort of First Amendment privilege for reporters asserting

confidential sources, else why would he have bothered writing?

To that, the United States replies that by its terms Justice

Powell’s opinion recognizes only that

if the newsman is called upon to give information bearing

only on a remote and tenuous relationship to the subject

investigation, of if he has some other reason to believe that

his testimony implicates confidential source relationships

without a legitimate need of law enforcement, he will have

access to the court on a motion to quash and an appropriate

protective order may be entered.

Id. at 710 (emphasis added).

Therefore, the United States contends, Justice Powell, who

expressed no disagreement with the majority about the existence

of a constitutional privilege, only emphasized that there would

be First Amendment protection in cases of bad faith

investigations. Appellants counter that Justice Powell could not

have meant what the United States argues, as this would have

given reporters no more protection than other citizens.

However, they never make it clear why they are convinced that

Justice Powell must have intended to give reporters more

protection than other citizens. The Constitution protects all

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citizens, and there is no reason to believe that Justice Powell

intended to elevate the journalistic class above the rest. Cf.

Branzburg at 690 (“the only testimonial privilege for unofficial

witnesses that is rooted in the Federal Constitution is the Fifth

Amendment privilege against compelled self-incrimination.”).

In any event, whatever Justice Powell specifically intended,

he joined the majority. Not only did he join the majority in

name, but because of his joinder with the rest of a majority, the

Court reached a result that rejected First Amendment privilege

not to testify before the grand jury for reporters situated

precisely like those in the present case. As we noted above,

there is no factual difference between Branzburg and the present

case. If Justice Powell in any way meant to afford more

protection than was afforded by the rest of the majority, that

protection cannot possibly extend to appellants as Branzburg is

directly on point and reached a result in which Justice Powell

joined, rejecting the applicability of constitutional privilege.

Zerilli cannot possibly help appellants, although they assert

that Zerilli, citing Justice Powell’s “deciding vote” in

Branzburg, recognized, at least in dicta, a reporter’s privilege in

civil cases and held that Branzburg was not controlling as to that

issue. Indeed, the Zerilli Court expressly distinguished its case

from Branzburg. “Although Branzburg may limit the scope of

a reporter’s First Amendment privilege in criminal proceedings,

this circuit has previously held that in civil cases, where the

public interest in effective law enforcement is absent, that case

is not controlling.” 656 F.2d at 705. Zerilli has no force in the

present case. Even if Zerilli states the law applicable to civil

cases, this is not a civil case. Zerilli could not subtract from the

Supreme Court’s holding in Branzburg. Zerilli, along with

several other lower court decisions cited by appellants, may

recognize or at least suggest the possibility of privileges under

various circumstances. None of them can change the law

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applicable to grand juries as set forth in Branzburg. As the

Supreme Court has told us:

If a precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other line of

decisions, the court of appeals should follow the case which

directly controls, leaving to this Court the prerogative of

overruling its own decisions.

Rodriguez de Quijas v. Shearson/American Express, 490 U.S.

477, 484 (1989). The Supreme Court has not overruled

Branzburg.

B. The Common Law Privilege

Appellants argue that even if there is no First Amendment

privilege protecting their confidential source information, we

should recognize a privilege under federal common law, arguing

that regardless of whether a federal common law privilege

protecting reporters existed in 1972 when Branzburg was

decided, in the intervening years much has changed. While

appellants argue for an absolute privilege under the common

law, they wisely recognize the possibility that a court not

recognizing such an absolute privilege might nonetheless find a

qualified privilege. They therefore also argue that if there is a

qualified privilege, then the government has not overcome that

qualified privilege. The Court is not of one mind on the

existence of a common law privilege. Judge Sentelle would

hold that there is no such common law privilege for reasons set

forth in a separate opinion. Judge Tatel would hold that there is

such a common law privilege. Judge Henderson believes that

we need not, and therefore should not, reach that question.

However, all believe that if there is any such privilege, it is not

absolute and may be overcome by an appropriate showing. All

further believe, for the reasons set forth in the separate opinion

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of Judge Tatel, that if such a privilege applies here, it has been

overcome. Therefore, the common law privilege, even if one

exists, does not warrant reversal.

C. The Due Process Argument

While appellants insist that their privilege is absolute, they

assert a secondary line of argument that if their privilege is

conditional, then their due process rights have been violated by

the refusal of the Special Counsel and the District Court to

provide them access to the Special Counsel’s secret evidentiary

submissions in support of the enforcement of the subpoenas.

This argument is without merit. As appellants themselves admit

in their brief, this circuit has recognized that “a district court can

ensure that [grand jury] secrecy is protected by provisions for

sealed, or when necessary ex parte, filings.” In re Grand Jury,

121 F.3d 729, 757 (D.C. Cir. 1997). Indeed, the rule of grand

jury secrecy is so well established that we have noted that

“[t]here is a plethora of authority recognizing that the grand jury

context presents an unusual setting where privacy and secrecy

are the norm.” In re Sealed Case, 199 F.3d 522, 526 (D.C. Cir.

2000) (collecting authorities).

As the Supreme Court has reminded us on occasion, “the

grand jury is an institution separate from the courts.” United

States v. Williams, 504 U.S. 36, 47 (1992). The function of that

separate institution is to “serv[e] as a kind of buffer or referee

between the government and the people.” Id. The function of

the grand jury “depends on ‘maintaining the secrecy of the grand

jury proceedings in the federal courts.’” In re Sealed Case, 199

F.3d at 526 (quoting United States v. Procter & Gamble Co.,

356 U.S. 677, 681 (1958)). The authorities collected in In re

Sealed Case recite the broad variety of circumstances in which

the courts have upheld this grand jury secrecy, a secrecy that has

been the persistent rule for grand jury proceedings for at least

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four hundred years. See Douglas Oil v. Petrol Stops Northwest,

441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand

jury proceedings have been closed to the public, and records of

such proceedings have been kept from the public eye.”).

In the Douglas Oil decision, the Supreme Court catalogs

multiple reasons for preserving the ancient secrecy of the grand

jury:

(1) disclosure of pre-indictment proceedings would make

many prospective witnesses “hesitant to come forward

voluntarily, knowing that those against whom they testify

would be aware of that testimony”; (2) witnesses who did

appear “would be less likely to testify fully and frankly as

they would be open to retribution as well as inducements”;

and (3) there “would be the risk that those about to be

indicted would flee or would try to influence individual

grand jurors to vote against indictment.”

In re North (Omnibus Order), 16 F.3d 1234, 1242 (D.C. Cir.,

Spec. Div., 1994) (quoting Douglas Oil Co., 441 U.S. at 218-

19).

Appellants have offered nothing to take the present grand

jury investigation outside the general rule, let alone elevate their

objections to constitutional due process status. Indeed,

appellants’ argument is principally built around a case from

another circuit never authoritative here, no longer authoritative

in the circuit of its origin, and distinguishable on its facts from

the beginning. In United States v. Dinsio, 468 F.2d 1392 (9th

Cir. 1973), the court ruled that a defendant who had been held

in contempt for refusing to furnish finger and palm print

exemplars to a federal grand jury was deprived of her due

process rights when the district court refused to let her inspect

an ex parte government affidavit upon which the court had

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determined that the grand jury’s request was reasonable. The

Ninth Circuit itself has since declared that “to the extent that our

decision in United States v. Dinsio . . . may be considered to

support the witness in his refusal to cooperate, it has been

superseded by United States v. Mara [410 U.S. 19 (1973)], and

United States v. Dionisio, 410 U.S. 1 (1973).” In re Braughton,

520 F.2d 765, 767 (9th Cir. 1975). The Ninth Circuit went on

to say “nothing in the law of this circuit now requires a court to

interrupt a grand jury while a recalcitrant witness produces a

series of mini trials challenging the reasonableness of the

government’s efforts to obtain fingerprint, voice, or handwriting

exemplars or the relevance of such exemplars to the

government’s case.” Id.

Similarly, Dinsio was never the law of this circuit, just as it

is no longer the law of the Ninth Circuit, and nothing in the law

of the District of Columbia Circuit requires or has ever required

a district court to interrupt the grand jury while a recalcitrant

witness enjoys a series of mini trials over his access to materials

cloaked by grand jury secrecy.

Assuming for the sake of this case that the general rule of

grand jury secrecy is not sufficient to justify the District Court’s

use of in camera and ex parte proceedings, we further note that

we have approved the use of such a procedure in other cases

raising privilege claims. In In re Sealed Case No. 98-377, 151

F.3d 1059 (D.C. Cir. 1998), a case, like this one, involving the

use of in camera and ex parte proceedings in the context of a

Rule 6(e) motion by the government, we upheld their use, and

in so doing, relied, at least in part, on precedent established in

privilege analysis. We observed there that “courts often use in

camera, ex parte proceedings to determine the propriety of a

crime fraud exception to the attorney-client privilege when such

proceedings are necessary to ensure the secrecy of ongoing

grand jury proceedings.” Id. at 1075 (citing In re Grand Jury,

20

103 F.3d 1140, 1145 (3d Cir.), cert. denied sub nom. Roe v.

United States, 520 U.S. 1253 (1997)). Having previously noted

the propriety of the procedures to protect the well-established

attorney-client privilege, we are persuaded that a similar

protection of grand jury secrecy is appropriate to protect

whatever privilege, if any, may exist between a reporter and a

confidential source.

We affirm the District Court’s ruling on the maintenance of

the seal of grand jury secrecy.

D. Department of Justice Guidelines

In their final argument for reversal of the District Court’s

contempt finding, appellants contend that the Special Counsel

did not comply with the Department of Justice guidelines for

issuing subpoenas to news media and that such failure provides

an independent basis for reversal. The District Court expressed

its doubt that the DOJ guidelines were enforceable, but found

that even if they were, Special Counsel had fully complied with

the guidelines. Because we conclude that the guidelines create

no enforceable right, we need not reach the question of the

Special Counsel’s compliance.

The guidelines in question are set forth in 28 C.F.R. § 50.10

and the United States Attorney’s Manual, § 9-2.161. Those

guidelines provide that subpoenas for testimony by news media

must be approved by the Attorney General, a requirement not

pertinent in the present case as the Special Counsel had received

delegation of all the Attorney General’s authority, and should

meet the following standards:

(a) “In criminal cases, there should be reasonable grounds

to believe, based on information obtained from

nonmedia sources, that a crime has occurred, and that

21

the information sought is essential to a successful

investigation–particularly with reference to

establishing guilt or innocence. The subpoena should

not be used to obtain peripheral, nonessential, or

speculative information.” 28 C.F.R. § 50.10(f)(1).

(b) Before issuing a subpoena to a member of the news

media, all reasonable efforts should be made to obtain

the desired information from alternative sources. Id. at

§§ 50.10(b), 50.10(f)(3);

(c) Wherever possible, subpoenas should be directed at

information regarding a limited subject matter and a

reasonably limited period of time. Subpoenas should

avoid requiring production of a large volume of

unpublished materials and provide reasonable notice of

the demand for documents. Id. at § 50.10(f)(6);

(d) “The use of subpoenas to members of the news media

should, except under exigent circumstances, be limited

to the verification of published information and to such

surrounding circumstances as relate to the accuracy of

the published information.” Id. at § 50.10(f)(4); and

(e) When issuance of a subpoena to a member of the

media is contemplated, the government shall pursue

negotiations with the relevant media organization. The

negotiations should seek accommodation of the

interests of the grand jury and the media. Where the

nature of the investigation permits, the government

should make clear what its needs are in a particular

case as well as its willingness to respond to particular

problems of the media. Id. at § 50.10(c).

22

However, as the District Court correctly observed, the guidelines

expressly state that they do “not create or recognize any legally

enforceable right in any person.” Id. at § 50.10(n). This

reservation has been upheld by several federal appellate and

district courts. See In re Special Proceedings, 373 F.3d 37, 44

n.3 (1st Cir. 2004) (noting that DOJ guidelines state that they do

not create legally enforceable rights); In re Grand Jury

Subpoena American Broadcasting Companies, Inc., 947 F.

Supp. 1314, 1322 (D. Ark. 1996) (declining to quash subpoena

based on failure to comply with DOJ regulations, on ground that

regulations, by their own terms, confer no rights on media

witnesses). See also In re Grand Jury Proceedings No. 92-4, 42

F.3d 876, 880 (4th Cir. 1994) (holding that special prosecutor’s

failure to comply with guidelines regarding issuance of

subpoenas to attorney, even if applicable, were not enforceable

by witness through motion to quash). The guidelines, not

required by any constitutional or statutory provision, see In re

Special Proceedings, 373 F.3d at 44 n.3, exist to guide the

Department’s exercise of its discretion in determining whether

and when to seek the issuance of subpoenas to reporters, not to

confer substantive or procedural benefits upon individual media

personnel. See In re Shain, 978 F.2d 850, 853 (4th Cir. 1992)

(holding reporters have no right to seek enforcement of DOJ

guidelines before being compelled to testify) (citing United

States v. Caceres, 440 U.S. 741 (1979) (exclusionary rule not

applicable to evidence obtained in violation of internal IRS

regulations governing electronic surveillance)); In re Grand

Jury Proceedings No. 92-4, 42 F.3d at 880 (following In re

Shain, 978 F.2d at 854).

Appellants rely on Morton v. Ruiz, 415 U.S. 199 (1974). In

that case, the Supreme Court stated that “where the rights of

individuals are affected, it is incumbent upon agencies to follow

their own procedures. This is so even where the internal

procedures are possibly more rigorous than otherwise would be

23

required.” Id. at 235.

Ruiz, however, is distinguishable. Regulations considered

by the Court in that case required the publication of directives

that “inform the public of privileges and benefits available and

of eligibility requirements.” Id. (quotation marks omitted). The

Supreme Court found that the publication requirement was

intended to benefit potential beneficiaries and therefore

invalidated a Bureau of Indian Affairs attempt to limit general

assistance benefits to otherwise eligible beneficiaries based on

an unpublished eligibility requirement. This reasoning has no

applicability to the guidelines before us.

It is well established that the exercise of prosecutorial

discretion is at the very core of the executive function. Courts

consistently hesitate to attempt a review of the executive’s

exercise of that function. See, e.g., United States v. Armstrong,

517 U.S. 456, 464-65 (1996). Federal prosecutors have “broad

discretion to enforce the Nation’s criminal laws.” Id. at 464

(internal punctuation and citations omitted). The prosecutor’s

discretion arises from their designation “as the President’s

delegates to help him discharge his constitutional responsibility

to ‘take care that the laws be faithfully executed.’” Id. (quoting

U.S. CONST. art. II, § 3). Given the nature of the guidelines

themselves, and the function they govern, we conclude that the

guidelines provide no enforceable rights to any individuals, but

merely guide the discretion of the prosecutors. We therefore

need not reach the question of the Special Counsel’s compliance

with the guidelines, and again we affirm the decision of the

District Court.

III. Conclusion

For the reasons set forth above, the judgment of the District

Court is affirmed.

SENTELLE, Circuit Judge, concurring: As noted in the

opinion of the court, I write separately to express my differing

basis for affirming the District Court on the common law

privilege issue. I would hold that reporters refusing to testify

before grand juries as to their “confidential sources” enjoy no

common law privilege beyond the protection against harassing

grand juries conducting groundless investigations that is

available to all other citizens. While I understand, and do not

actually disagree with, the conclusion of my colleagues that any

such privilege enjoyed by the reporters has been overcome by

the showing of the United States, and that we therefore need not

determine whether such privilege exists, I find this ordering of

issues a bit disturbing. To me, the question of the existence of

such privilege vel non is logically anterior to the quantum of

proof necessary to overcome it. While I understand Judge

Henderson’s theory that she cannot support a privilege afforded

by the common law which would not be overcome by the

quantum of proof offered by the government, I think it more

logical to not reach the quantum question in the absence of a

determination as to the existence of the privilege than to proceed

the other way around.1 That said, I fully join the conclusion that

we should affirm the District Court’s decision to hold the

appellants in contempt, unswayed by their claim of protection of

common law privilege. I write separately only to explain my

reasons for rejecting the theory that such a privilege is known to

the common law.

I base my rejection of the common law privilege theory on

foundations of precedent, policy, and separation of powers. As

to precedent, I find Branzburg v. Hayes, 408 U.S. 665 (1972), to

be as dispositive of the question of common law privilege as it

is of a First Amendment privilege. While Branzburg generally

is cited for its constitutional implications, the Branzburg Court

repeatedly discussed the privilege question in common law

terms as well as constitutional. Indeed, the majority opinion by

1

See Opinion of Judge Tatel at pp. 5-9.

2

Justice White includes the phrase “common law” no fewer than

eight times. More significant than the fact that the Court

frequently spoke of the common law is what the Court had to

say about it: “at common law, courts consistently refuse to

recognize the existence of any privilege authorizing a newsman

to refuse to reveal confidential information to a grand jury.” Id.

at 685 (collecting cases).

At page 688, the Court continued, “although the powers of

the grand jury are not unlimited and are subject to the

supervision of a judge, the longstanding principle that ‘the

public . . . has a right to every man’s evidence,’ except for those

persons protected by a constitutional, common law, or statutory

privilege . . . is particularly applicable to grand jury

proceedings.” (emphasis added) (citations omitted).

Significantly, the Court made this statement in the course of

holding the journalists litigating before it unprotected by

privilege against contempt citations. Granted, the Court

expressly held that it was not about to create a new

“constitutional” privilege. But in the same paragraph with that

rejection it expressly discusses the possible protection of

common law and in the end reaches a result that leaves the

reporters unprotected. I think it therefore indisputable that the

High Court rejected a common law privilege in the same breath

as its rejection of such a privilege based on the First

Amendment. Especially is this so when we consider that it

makes little sense to assume that the Court first reached out to

take a constitutional question it would not have needed to

answer had there been such a common law privilege, and then

proceeded to answer that question in such a fashion as to reach

a result upholding contempt citations and reversing vacation of

such citations.2

2

By way of comparison, under the constitutional avoidance

doctrine, the Supreme Court counsels courts “to adopt constructions

3

Because the Supreme Court rejected the common law

privilege, I think it would be at least presumptuous if not

overreaching for us to now adopt the privilege. As the opinion

of the court notes, “the Supreme Court has told us:

If a precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other line of

decisions, the court of appeals should follow the case which

directly controls, leaving to this Court the prerogative of

overruling its own decisions.”

Maj. Op. at 16 (quoting Rodriguez de Quijas v.

Shearson/American Express, 490 U.S. 477, 484 (1989)).

The Supreme Court has rejected a common law privilege

for reporters subpoenaed to give evidence to grand juries. In my

view that rejection stands unless and until the Supreme Court

itself overrules that part of Branzburg. Although the appellants

argue that other changes in the law since Branzburg should lead

to an opposite result, I think that argument should appropriately

be made to the Supreme Court, not the lower courts.3

Even if appellants are correct that we would have the power

of statutes to ‘avoid decision of constitutional questions,’ not to

deliberately create constitutional questions.” See, e.g., McConnell v.

Federal Election Commission, 540 U.S. 93, 180 (2003); United States

v. 37 Photographs, 402 U.S. 363, 373 (1971), United States ex rel.

Attorney General v. Delaware and Hudson Co., 213 U.S. 366, 407

(1909); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341

(1936) (Brandeis, J., concurring).

3

I wish to make it plain that I do not fault the appellants for

making the argument, understanding that they must if they wish to

preserve it for Supreme Court review. Nonetheless, I think it is only

the High Court and not this one that may act upon that argument.

4

to adopt such a privilege in the face of the Branzburg precedent,

I nonetheless would not accept that invitation. Appellants’

argument for our authority to adopt the new privilege begins

with the Federal Rules of Evidence. Rule 501, enacted by

Congress in the Federal Rules of Evidence in 1975, three years

after Branzburg, rejected an enumeration of specific federal

privileges and provided that privileges in federal criminal cases

“shall be governed by the principles of the common law as they

may be interpreted by the courts of the United States in the light

of reason and experience.” Although the rules became effective

after Branzburg, Rule 501 does not effect any change in the

authority of federal courts to adopt evidentiary privileges.

Before the enactment of the Federal Rules of Evidence, the

authority of the federal courts to adopt common law privileges

was governed by case law. The relevant case law provided for

precisely the same authority as Congress enacted in the rules.

Indeed, the language of the rule is drawn directly from case law

governing at the time of Branzburg. The Supreme Court

expressly held in Wolfle v. United States, 291 U.S. 7 (1934), that

the rules governing the competence of witnesses in criminal

trials in the federal courts are not necessarily restricted to

those local rules enforced at the time of the admission into

the union of the particular state where the trial takes place,

but are governed by common law principles as interpreted

and applied by the federal courts in the light of reason and

experience.

291 U.S. 7, 12 (1934) (citing Funk v. United States, 290 U.S.

371 (1933)) (emphasis added). Given the venerable origins of

the language used in Rule 501, it cannot be said that the courts

have more power to adopt privileges today than at the time of

Branzburg. The power is precisely the same. Thus, the

enactment of Rule 501 cannot by itself work any change in the

law which should empower us to depart from the Supreme

5

Court’s clear precedent in Branzburg.

Appellants persist, however, that the state of the common

law has changed sufficiently to warrant a new approach. By

appellants’ count, at the time of the Branzburg decision, only

seventeen states had enacted what appellants refer to as “shield

laws” to protect journalists from forced disclosure of

confidential sources or newsgathering materials, while today,

thirty-one states (plus the District of Columbia) have such

statutes.4 Nonetheless, I think it remains the prerogative of the

Supreme Court rather than inferior federal tribunals to determine

whether these changes are sufficient to warrant an overruling of

the Court’s rejection of such a common law privilege in

Branzburg.

Furthermore, even if we are authorized to make that

decision, reasons of policy and separation of powers counsel

against our exercising that authority. While I concede that the

adoption of the “shield” by legislation rather than judicial fiat

does not prevent the change being considered by the courts in

assessing the common law, I find the adoption of the privilege

by the legislatures of the states instructive as to how the federal

government should proceed, if at all, to adopt the privilege. The

statutes differ greatly as to the scope of the privilege, and as to

the identity of persons entitled to the protection of the privilege.

4

The fact that the adoption has been by legislation rather than

court decision does not deprive the change in law of common law

force. As the Supreme Court has noted, “the policy decisions of the

states bear on the question whether federal courts should recognize a

new privilege or amend the coverage of an existing one[,]” and further

has told us that “it is of no consequence that recognition of the

privilege in the vast majority of the states is the product of legislative

action rather than judicial decision.” Jaffee v. Redmond, 518 U.S. 1,

12-13 (1996).

6

We have alluded in the majority opinion to the differing

decisions of courts as to civil, criminal, and grand jury

proceedings. There is also a more fundamental policy question

involved in the crafting of such a privilege.

The Supreme Court itself in Branzburg noted the difficult

and vexing nature of this question, observing that applying such

privilege would make it

necessary to define those categories of newsmen who

qualify for the privilege, a questionable procedure in light

of the traditional doctrine that liberty of the press is the

right of the lonely pamphleteer who uses carbon paper or a

mimeograph just as much as of the large metropolitan

publisher who utilizes the latest photocomposition methods.

408 U.S. at 704. The Supreme Court went on to observe that

“freedom of the press is a ‘fundamental personal right . . . not

confined to newspapers and periodicals. It necessarily embraces

pamphlets and leaflets . . . . The press in its historic connotation

comprehends every sort of publication which affords a vehicle

of information and opinion.’” Id. (quoting Lovell v. Griffin, 304

U.S. 444, 450, 452 (1938)). Are we then to create a privilege

that protects only those reporters employed by Time Magazine,

the New York Times, and other media giants, or do we extend

that protection as well to the owner of a desktop printer

producing a weekly newsletter to inform his neighbors, lodge

brothers, co-religionists, or co-conspirators? Perhaps more to

the point today, does the privilege also protect the proprietor of

a web log: the stereotypical “blogger” sitting in his pajamas at

his personal computer posting on the World Wide Web his best

product to inform whoever happens to browse his way? If not,

why not? How could one draw a distinction consistent with the

court’s vision of a broadly granted personal right? If so, then

would it not be possible for a government official wishing to

7

engage in the sort of unlawful leaking under investigation in the

present controversy to call a trusted friend or a political ally,

advise him to set up a web log (which I understand takes about

three minutes) and then leak to him under a promise of

confidentiality the information which the law forbids the official

to disclose?

The state legislatures have dealt with this vexing question

of entitlement to the privilege in a variety of ways. Some are

quite restrictive. Alabama limits its protection to “person[s]

engaged in, connected with, or employed on any newspaper,

radio broadcasting station or television station, while engaged in

a newsgathering capacity.” ALA. CODE § 12-21-142. Alaska’s

statutes protect only the “reporter,” a category limited to

“person[s] regularly engaged in the business of collecting or

writing news for publication or presentation to the public,

through a news organization.” ALASKA STAT. § 09.25.300. The

statutory privilege in Arizona protects “a person engaged in

newspaper, radio, television or reportorial work, or connected

with or employed by a newspaper or radio or television station

. . . .” ARIZ. REV. STAT. § 12-2237. Arkansas’s legislature has

declared the privilege applicable to “any editor, reporter, or

other writer for any newspaper, periodical, or radio station, or

publisher of any newspaper or periodical, or manager or owner

of any radio station . . . .” ARK. CODE ANN. § 16-85-510.

Delaware is perhaps the most specific, protecting a “reporter,”

which

means any journalist, scholar, educator, polemicist, or other

individual who either: (a) At the time he or she obtained the

information that is sought was earning his or her principal

livelihood by, or in each of the preceding 3 weeks or 4 of

the preceding 8 weeks had spent at least 20 hours engaged

in the practice of, obtaining or preparing information for

dissemination with the aid of facilities for the mass

8

reproduction of words, sounds, or images in a form

available to the general public; or (b) Obtained the

information that is sought while serving in the capacity of

an agent, assistant, employee, or supervisor of an individual

who qualifies as a reporter under subparagraph a.

DEL. CODE ANN. tit. 10 § 4320. Presumably, states such as

these would provide the privilege only to the “established”

press.

Others are quite inclusive. The Nebraska legislature, for

example, has declared:

(1) That the policy of the State of Nebraska is to insure the

free flow of news and other information to the public, and

that those who gather, write, or edit information for the

public or disseminate information to the public may

perform these vital functions only in a free and unfettered

atmosphere; (2) That such persons shall not be inhibited,

directly or indirectly, by governmental restraint or sanction

imposed by governmental process, but rather that they shall

be encouraged to gather, write, edit, or disseminate news or

other information vigorously so that the public may be fully

informed.

NEB. REV. STAT. § 20-144. To that end, it protects any “medium

of communication” which term “shall include, but not be limited

to, any newspaper, magazine, other periodical, book, pamphlet,

news service, wire service, news or feature syndicate, broadcast

station or network, or cable television system.” Id. at § 20-

145(2) (emphasis added).

In defining the persons protected by that privilege,

Nebraska tells us that “Person shall mean any individual,

partnership, limited liability company, corporation, association,

9

or other legal entity existing under or authorized by the law of

the United States, any state or possession of the United States,

the District of Columbia, the Commonwealth of Puerto Rico, or

any foreign country.” Id. at 20-145(7). Presumably, then,

Nebraska, perhaps more in keeping with the spirit of the recent

revolutionaries who gave us the First Amendment, protects the

pamphleteer at the rented printer, and the blogger at the PC, as

well as the giant corporation with its New York publishing

house.

The variety of legislative choices among the states only

serves to heighten the concern expressed by the majority in

Branzburg. See 408 U.S. at 704. This concern is reinforced by

examination of the Jaffee decision, upon which appellants rely.

In Jaffee, the Supreme Court extended a federal privilege “to

confidential communications made to licensed social workers in

the course of psychotherapy.” 518 U.S. at 15. There is little

definitional problem with the application of this privilege. The

court need only ask: Does this “social worker” have a license?

If the answer is “yes,” then the privilege applies; if it’s “no,” the

privilege does not. If the courts extend the privilege only to a

defined group of reporters, are we in danger of creating a

“licensed” or “established” press? If we do so, have we run

afoul of the breadth of the freedom of the press, that

“fundamental personal right” for which the Court in Branzburg

expressed its concern? 408 U.S. at 704. Conversely, if we

extend that privilege to the easily created blog, or the ill-defined

pamphleteer, have we defeated legitimate investigative ends of

grand juries in cases like the leak of intelligence involved in the

present investigation?

Nor does the identity of the protected persons constitute the

only difficult policy decision. Branzburg enumerates several

concerns. For example, does “the public interest in possible

future news about crime from undisclosed, unverified sources

10

. . . take precedence over the public interest in pursuing and

prosecuting those crimes reported to the press by informants and

in thus deterring the commission of such crimes in the future”?

Id. at 695. Do “agreements to conceal information relevant to

the commission of crime avail little to recommend them from

the standpoint of public policy”? Id. at 696. What are we to do

with the historic common law recognition of “a duty to raise the

‘hue and cry’ and report felonies to the authorities”? Id. (see

also authorities collected in id. at 696 n.34). Should we be

creating immunity from prosecution for “misprision” of a

felony–that is, the concealment of a felony? Id. at 696.

Should the privilege be absolute or limited? If limited, how

limited? Without attempting to catalog, I note that the state

statutes provide a variety of answers to that policy question.

Therefore, if such a decision requires the resolution of so many

difficult policy questions, many of them beyond the normal

compass of a single case or controversy such as those with

which the courts regularly deal, doesn’t that decision smack of

legislation more than adjudication? Here, I think the experience

of the states is most instructive. The creation of a reporter’s

privilege, if it is to be done at all, looks more like a legislative

than an adjudicative decision. I suggest that the media as a

whole, or at least those elements of the media concerned about

this privilege, would better address those concerns to the Article

I legislative branch for presentment to the Article II executive

than to the Article III courts.

For all the reasons set forth above, I would hold that there

is no common law privilege protecting reporters or any other

news media personnel, no matter how defined, from the reach of

grand jury subpoenas on claim of confidentiality.

HENDERSON, Circuit Judge, concurring: I write separately to

emphasize that adherence to the principle of judicial

restraint—patience in judicial decision-making—would produce

a better result in II.B of the majority opinion. Because my

colleagues and I agree that any federal common-law reporter’s

privilege that may exist is not absolute and that the Special

Counsel’s evidence defeats whatever privilege we may fashion,

we need not, and therefore should not, decide anything more

today than that the Special Counsel’s evidentiary proffer

overcomes any hurdle, however high, a federal common-law

reporter’s privilege may erect.

In our circuit it is a venerable practice, and one frequently

observed, to assume arguendo the answer to one question—e.g.,

whether to recognize a federal common-law reporter’s

privilege—in order to resolve a given case by answering another

and equally dispositive one—e.g., whether any privilege would

protect these reporters.1 Although both of my colleagues

1

See, e.g., Dir., Office of Thrift Supervision v. Vinson & Elkins,

LLP, 124 F.3d 1304, 1308 (D.C. Cir. 1997) (because appellant failed

to show sufficient need for attorney interview notes, court “save[d] for

another day” “difficult matters” of determining “degree of selection

necessary to transform facts into opinions and the standard of review

we should employ of a district court determination” regarding

discovery of attorney work product); Littlewolf v. Lujan, 877 F.2d

1058, 1065 (D.C. Cir. 1989) (“find[ing] it unnecessary to address the

difficult questions raised by appellants regarding the Due Process

adequacy of the period provided by the Act” because “[e]ven if we

assume arguendo that the six-month limitations period is unreasonably

short and that, as a consequence, the Act effectively ‘takes’ the Band

members’ property rights, we conclude that the statute provides the

Indians with just compensation”); cf. Michel v. INS, 206 F.3d 253, 260

n.4 (2d Cir. 2000) (“Where . . . no harm results from our failing to

answer a question, we believe that the ‘doctrine of judicial restraint

provides a fully adequate justification for deciding [the] case on the

best and narrowest ground available.’” (quoting Air Courier

Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 531

(1991) (Stevens, J., concurring in judgment))).

2

question the logic of this approach here, it is a mode of decision-

making they themselves have often used.2 In this case, however,

2

See, e.g., Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1142

(D.C. Cir. 2002) (Sentelle, J.) (assuming union organizer’s activity

constituted “concerted activity” under 29 U.S.C. § 157 but holding it

was not protected under statute); Jackson v. Dist. of Columbia, 254

F.3d 262, 265 (D.C. Cir. 2001) (Tatel, J.) (“continu[ing]” assumption

that Religious Freedom Restoration Act applies to federal government

and holding prisoners failed to exhaust administrative remedies);

Carney v. Am. Univ., 151 F.3d 1090, 1094-95 (D.C. Cir. 1998) (Tatel,

J.) (assuming without deciding retaliation violates 42 U.S.C. § 1981

and remanding claim for trial); Massachusetts. v. United States Dep’t

of Transp., 93 F.3d 890, 892 (D.C. Cir. 1996) (Sentelle, J.) (“We need

not determine whether an agency’s interpretation of a statute on the

preemption question is subject to Chevron analysis in order to decide

this case, as the agency’s determination here cannot be upheld with or

without deference.”).

Judge Tatel distinguishes these cases by concluding that their

analysis cannot be used to avoid the “dispositive” issue in this case.

Tatel Slip Op. at 8. There are, however, only three ways of answering

the question whether these reporters’ confidential source information

is protected by a federal common-law privilege: (1) there is no

privilege, (2) there is an absolute privilege and (3) there is a qualified

privilege. None of us, including the reporters in their brief, would

choose door number two, see Tatel Slip Op. at 19; Appellants’ Br. at

42, and only one of us heads for door number one, see Sentelle Slip

Op. at 1. That leaves door number three. But in choosing this route,

the critical question is not definitional, as Judge Tatel sees it, see Tatel

Slip Op. at 8, but quantitative: Is the Special Counsel’s evidentiary

proffer sufficient to overcome any qualified privilege that may exist?

Because we agree that the answer is “yes,” there is no need for us to

go any further. Granted, the circumstances of the cited cases differ but

they use the same analysis. Moreover, its application here is

consistent with the tried and true principle that “[w]here . . . no harm

results from our failing to answer a question, . . . the ‘doctrine of

judicial restraint provides a fully adequate justification for deciding

3

they employ two divergent forms of “wide-angle adjudication.”

See Harry T. Edwards, The Role of the Judge in Modern Society:

Some Reflections on Current Practices in Federal Appellate

Adjudication, 32 CLEV. ST . L. REV. 385, 414 (1983-84). Judge

Sentelle would hold that a reporter enjoys no federal common-

law privilege to refuse to provide a bona fide grand jury with

relevant documents and testimony while Judge Tatel would fix

the contours of a qualified reporter’s privilege by using a novel

multi-factor balancing test only to conclude that it helps these

reporters not at all. 3

While I am convinced that we need not, and therefore should

not, go further than to conclude, as did the district court, see

Appendix 35-36, 275, that the Special Counsel’s showing

decides the case, I feel compelled to comment briefly on my

colleagues’ opposing conclusions if only to make clear why I

think it unwise to advance either of them. I cannot agree with

Judge Sentelle’s conclusion that the United States Supreme

[the] case on the best and narrowest ground available.’” Michel, 206

F.3d at 260 n.4 (quoting Air Courier Conference of Am., 498 U.S. at

531 (Stevens, J., concurring in judgment)); see supra note 2.

3

Judge Tatel maintains that “[f]or the sake of reporters and

sources,” we must establish the contours of a privilege in order to

“clarify the rules governing their relationship.” Tatel Slip Op. at 9.

But the press’s collection of information, including from confidential

sources, seems to me near impervious to regulation: “[E]xperience

teaches us more than sufficiently that men have nothing less in their

power than their tongue . . . .” BENEDICT DE SPINOZ A , E T HICS 168

(G.H.R. Parkinson ed. & trans., Oxford Univ. Press 2000); cf.

STANLEY WALKER, CITY EDIT OR 44 (Johns Hopkins Univ. Press

1999) (1934) (“Women, wampum, and wrongdoing are always

news.”). As the Branzburg Court recognized, “the relationship of

many informants to the press is a symbiotic one which is unlikely to

be greatly inhibited by the threat of subpoena.” 408 U.S. 665, 694

(1972).

4

Court has answered the question we now avoid. Branzburg v.

Hayes addressed only “whether requiring newsmen to appear

and testify before state or federal grand juries abridges the

freedom of speech and press guaranteed by the First

Amendment” and “h[e]ld that it does not.” 408 U.S. 665, 667

(1972) (emphases added). The boundaries of constitutional law

and common law do not necessarily coincide, however, and

while we are unquestionably bound by Branzburg’s rejection of

a reporter’s privilege rooted in the First Amendment, we are not

bound by Branzburg’s commentary on the state of the common

law in 1972. Federal Rule of Evidence 501, which came into

being nearly three years after Branzburg, authorizes federal

courts to develop testimonial privileges “in the light of reason

and experience,” allowing for the often evolving state of the

common law. See FED . R. EVID. 501; Trammel v. United States,

445 U.S. 40, 47 (1980) (“In rejecting the proposed Rules and

enacting Rule 501, Congress manifested an affirmative intention

not to freeze the law of privilege.”); id. (“The Federal Rules of

Evidence acknowledge the authority of the federal courts to

continue the evolutionary development of testimonial

privileges.”). Judge Sentelle’s view also discounts the fact that,

even as they rejected a reporter’s First Amendment right to

withhold testimony from a bona fide grand jury, both the

Branzburg majority opinion as well as Justice Powell’s separate

concurrence hint ambiguously at the existence of some special

protection for reporters stemming from their significant role in

sustaining our republican form of government.4

4

See Branzburg, 408 U.S. at 708 (“[N]ews gathering is not without

its First Amendment protections, and grand jury investigations if

instituted or conducted other than in good faith, would pose wholly

different issues for resolution under the First Amendment.”); id. at 710

(“The asserted claim to privilege should be judged on its facts by the

striking of a proper balance between freedom of the press and the

obligation of all citizens to give relevant testimony with respect to

5

At the same time, I am far less eager a federal common-law

pioneer than Judge Tatel as I find less comfort than he in riding

Jaffee v. Redmond, 518 U.S. 1 (1996), into the testimonial

privilege frontier. Just as Rule 501 imposes no “freeze” on the

development of the common law, see Univ. of Penn. v. EEOC,

493 U.S. 182, 189 (1990); Trammel, 445 U.S. at 47, it likewise

does not authorize federal courts to mint testimonial privileges

for any group—including the “journalistic class,” as Judge

Sentelle dubs it, Maj. Slip Op. at 15—that demands one. The

Supreme Court has warned that testimonial privileges “are not

lightly created nor expansively construed, for they are in

derogation of the search for truth.” United States v. Nixon, 418

U.S. 683, 710 (1974); see Branzburg, 408 U.S. at 690; see also

Jaffee, 518 U.S. at 21 (Scalia, J., dissenting). Accordingly, we

should proceed as cautiously as possible “when erecting barriers

between us and the truth,” id., recognizing that the Legislature

remains the more appropriate institution to reconcile the

competing interests—prosecuting criminal acts versus

constricting the flow of information to the public—that inform

any reporter’s privilege to withhold relevant information from

a bona fide grand jury. See Univ. of Penn., 493 U.S. at 189.

Because Jaffee sits rather awkwardly within a jurisprudence

marked by a fairly uniform disinclination to announce new

privileges5 or even expand existing ones,6 and even though it

criminal conduct.”) (Powell, J., concurring); see also In re Grand

Jury, 955 F.2d 229, 434 (4th Cir. 1992) (noting Branzburg’s

observation that First Amendment protects reporter in grand jury

proceedings initiated or conducted in bad faith presents a “paradox”

because “district courts can control prosecutorial abuse in any setting,

not just in cases involving the First Amendment”).

5

See Univ. of Penn., 493 U.S. 182 (rejecting privilege protecting

academic peer-review materials); United States v. Gillock, 445 U.S.

360 (1980) (rejecting privilege protecting “legislative acts”); see also

6

enjoyed the support of an overwhelming majority, I am hesitant

to apply its methodology to a case that does not require us to do

so. While it would not be the first of its kind, see Lemon v.

Kurtzman, 403 U.S. 602 (1971) (“Lemon test”); cf. Elk Grove

Unified Sch. Dist. v. Newdow, __ U.S. __, 124 S. Ct. 2301, 2327

n.1 (2004) (“We have selectively invoked particular tests, such

as the ‘Lemon test,’ with predictable outcomes.” (internal

citation omitted)) (Thomas, J., concurring in judgment), the type

of multi-factor balancing test Judge Tatel proposes seems, at

least to me, to lack analytical rigor because its application to this

case is foreordained. Indeed, I am not convinced that a

balancing test that requires more than an evaluation of the

essentiality of the information to the prosecution and the

exhaustion of available alternative sources thereof is either

useful or appropriate. While Judge Tatel makes the centerpiece

of his test the balancing of “the public interest in compelling

disclosure, measured by the harm the leak caused, against the

public interest in newsgathering, measured by the leaked

information’s value,” see Tatel Slip Op. at 21, this court (in the

Jaffee, 518 U.S. at 18-36 (Scalia, J., dissenting).

6

See United States v. Zolin, 491 U.S. 554 (1989) (permitting in

camera review of materials to establish applicability of crime-fraud

exception to attorney-client privilege); Trammel v. United States, 445

U.S. 40 (1980) (witness spouse’s voluntary testimony not covered by

spousal privilege); see also Jaffee, 518 U.S. at 18-36 (Scalia, J.,

dissenting).

7

civil context),7 the United States Department of Justice8 and the

lone district court that has recognized a federal common-law

reporter’s privilege in the grand jury context 9 have declined to

consider either of these factors in deciding whether to recognize

7

Zerilli v. Smith, 656 F.2d 705, 713-714 (D.C. Cir. 1981); Carey v.

Hume, 492 F.2d 631, 636-38 (D.C. Cir. 1972); cf. United States v.

Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000) (affirming district court’s

conclusion that reporter’s privilege was not overcome because his

testimony was not “‘essential or crucial’” to defendant’s case or

relevant to determination of guilt or innocence).

8

See 28 C.F.R. § 50.10. As Judge Tatel points out, see Tatel Slip

Op. at 20, the Justice Department regulations aim to “strike the proper

balance between the public’s interest in the free dissemination of ideas

and information and the public’s interest in effective law enforcement

and the fair administration of justice,” id. § 50.10(a), but the

regulations do not balance the two interests. They establish instead

that, in requesting authorization to subpoena a member of the press,

the government should: reasonably believe that, in a criminal case, the

information sought is essential “to a successful

investigation—particularly with reference to directly establishing guilt

or innocence,” id. § 50.10(f)(1); attempt unsuccessfully to obtain the

information from “alternative nonmedia sources,” id. § 50.10(f)(3);

seek only to verify, “except under exigent circumstances,” published

information and “such surrounding circumstances as relate to the

accuracy of the published information,” id. § 50.10(f)(4); treat

“[e]ven” requests for publicly disclosed information “with care to

avoid claims of harassment,” id. § 50.10(f)(5); and, “wherever

possible,” seek material information on a limited subject matter and

for a limited time period, avoid requiring the production of large

quantities of unpublished material and “give reasonable and timely

notice of the demand for documents,” id. § 50.10(f)(6).

9

See In re Williams, 766 F. Supp. 358, 368-70 (W.D. Pa. 1991),

aff’d by equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc)

(order without treatment of merits).

8

a reporter’s exemption from compulsory process.10 There is a

good reason for this: I suspect that balancing “harm” against

“news value” may prove unproductive because in most of the

projected scenarios—leaks of information involving, for

example, military operations, national security, policy choices

or political adversaries—the two interests overlap. Furthermore,

Branzburg warns of the risk inherent in the judicial assessment

of the importance of prosecuting particular crimes. See 408 U.S.

at 706 (“By requiring testimony from a reporter in investigations

involving some crimes but not in others, [the courts] would be

making a value judgment that a legislature had declined to

make, since in each case the criminal law involved would

represent a considered legislative judgment, not constitutionally

suspect, of what conduct is liable to criminal prosecution. The

task of judges, like other officials outside the legislative branch,

is not to make the law but to uphold it in accordance with their

oaths.”). And any evaluation of the importance of

newsgathering keyed to its perceived “benefit” to the public,

Tatel Slip Op. at 20; see id. at 27 (“beneficial newsgathering”),

seems antithetical to our nation’s abiding commitment to the

uninhibited trade in ideas. See, e.g., Riley v. Nat’l Fed’n of

Blind, Inc., 487 U.S. 781, 790-91 (1988) (“The First

Amendment mandates that we presume that speakers, not the

government, know best both what they want to say and how to

say it.”); Cohen v. California, 403 U.S. 15, 24 (1971) (“The

10

Judge Tatel insists that his test is not “novel . . . , considering its

basis in Zerilli and Carey and the Justice Department’s own

guidelines.” Tatel Slip Op. at 22. But the central factors of his

test—the balancing of “the public interest in compelling disclosure,

measured by the harm the leak caused, against the public interest in

newsgathering, measured by the leaked information’s value,” Tatel

Slip Op. at 21—find no support that I can detect in those cases. See

28 C.F.R. § 50.10; Zerilli, 656 F.2d at 713-714; Carey, 492 F.2d at

636-38.

9

constitutional right of free expression is . . . designed and

intended to remove governmental restraints from the arena of

public discussion, putting the decision as to what views shall be

voiced largely into the hands of each of us.”); McConnell v.

FEC, 251 F. Supp.2d 176, 360 (D.D.C. 2003) (“[T]he First

Amendment delegates to the populace at large the responsibility

of conducting an ‘uninhibited, robust, and wide-open’ debate.”

(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964))); cf. Gertz v. Welch, Inc., 418 U.S. 323, 346 (1974).

Moreover, to attempt to establish the contours of a reporter’s

privilege here would tend, unnecessarily, to leave a future panel

less maneuverability in a case that might require just that to

achieve justice. On this score, Judge Tatel levels the identical

charge against my approach, see Tatel Slip Op. at 8, but I fail to

see how declining to decide whether a reporter’s privilege exists

or to define its contours could confine a future panel.

For the foregoing reasons, I am convinced that the court would

chart the best course by charting the narrowest one and,

accordingly, concur only in the judgment with respect to II.B of

the majority opinion. In all other respects, I fully concur.

TATEL, Circuit Judge, concurring in the judgment: This

case involves a clash between two truth-seeking institutions: the

grand jury and the press. On the one hand, the grand jury, a

body “deeply rooted in Anglo-American history” and

guaranteed by the Fifth Amendment, see United States v.

Calandra, 414 U.S. 338, 342-43 (1974), holds “broad powers”

to collect evidence through judicially enforceable subpoenas.

See United States v. Sells Eng’g, Inc., 463 U.S. 418, 423-24

(1983). “Without thorough and effective investigation, the

grand jury would be unable either to ferret out crimes deserving

of prosecution, or to screen out charges not warranting

prosecution.” Id. at 424. On the other hand, the press, shielded

by the First Amendment, “has been a mighty catalyst in

awakening public interest in governmental affairs, exposing

corruption among public officers and employees and generally

informing the citizenry of public events and occurrences.” Estes

v. Texas, 381 U.S. 532, 539 (1965). Using language we have

quoted with approval, see Carey v. Hume, 492 F.2d 631, 634-35

(D.C. Cir. 1974), the Second Circuit aptly described this conflict

between press freedom and the rule of law: “Freedom of the

press, hard-won over the centuries by men of courage, is basic

to a free society. But basic too are courts of justice, armed with

the power to discover truth. The concept that it is the duty of a

witness to testify in a court of law has roots fully as deep in our

history as does the guarantee of a free press.” Garland v. Torre,

259 F.2d 545, 548 (2d Cir. 1958).

Because I agree that the balance in this case, which involves

the alleged exposure of a covert agent, favors compelling the

reporters’ testimony, I join the judgment of the court. I write

separately, however, because I find Branzburg v. Hayes, 408

U.S. 665 (1972), more ambiguous than do my colleagues and

because I believe that the consensus of forty-nine states plus the

District of Columbia—and even the Department of

Justice—would require us to protect reporters’ sources as a

2

matter of federal common law were the leak at issue either less

harmful or more newsworthy.

I.

Although I join the court’s rejection of appellants’ First

Amendment argument, I am uncertain that Branzburg offers “no

support” for a constitutional reporter privilege in the grand jury

context. See majority op. at 12-13. To be sure, Branzburg

upheld the enforcement of subpoenas seeking confidential

source information, including notes and testimony about

interviews and observations at a militant group’s headquarters.

See 408 U.S. at 672-77. Yet even the Branzburg majority

declared that “news gathering is not without its First

Amendment protections,” id. at 707, a phrase we have

interpreted (albeit in dictum) to “indicate[] that a qualified

privilege would be available in some circumstances even where

a reporter is called before a grand jury to testify,” Zerilli v.

Smith, 656 F.2d 705, 711 (D.C. Cir. 1981). Branzburg’s caveat,

placed in a discussion of “[o]fficial harassment of the press” and

“grand jury investigations . . . instituted or conducted other than

in good faith,” Branzburg, 408 U.S. at 707-08, seems to refer

only to journalists’ power to quash “unreasonable or oppressive”

subpoenas, see Fed. R. Crim. P. 17(c)(2). But given that any

witness—journalist or otherwise—may challenge such a

subpoena, the majority must have meant, at the very least, that

the First Amendment demands a broader notion of “harassment”

for journalists than for other witnesses. Reinforcing that view,

the majority added, “We do not expect courts will forget that

grand juries must operate within the limits of the First

Amendment as well as the Fifth.” Branzburg, 408 U.S. at 708.

That prediction, too, would appear meaningless if no First

Amendment safeguards existed for subpoenaed reporters.

Then there is Justice Powell’s “enigmatic concurring

opinion.” Id. at 725 (Stewart, J., dissenting). Though providing

3

the majority’s essential fifth vote, he wrote separately to outline

a “case-by-case” approach, see id. at 710 (Powell, J.,

concurring), that fits uncomfortably, to say the least, with the

Branzburg majority’s categorical rejection of the reporters’

claims. Emphasizing “the limited nature of the Court’s

holding,” id. at 709, he wrote:

The asserted claim to privilege should be judged on its facts

by the striking of a proper balance between freedom of the

press and the obligation of all citizens to give relevant

testimony with respect to criminal conduct. The balance of

these vital constitutional and societal interests on a case-by-

case basis accords with the tried and traditional way of

adjudicating such questions.

Id. at 710. “In short,” Justice Powell concluded, “the courts will

be available to newsmen under circumstances where legitimate

First Amendment interests require protection.” Id. Even more

than the majority opinion, this language places limits on grand

jury authority to demand information about source

identities—though, again, the precise extent of those limits

seems unclear.

Given Branzburg’s internal confusion and the “obvious

First Amendment problems” involved in “[c]ompelling a

reporter to disclose the identity of a confidential source,” Zerilli,

656 F.2d at 710, it is hardly surprising that lower courts have, as

Chief Judge Hogan put it, “chipped away at the holding of

Branzburg,” finding constitutional protections for reporters in

“various factual scenarios different than those presented in

Branzburg.” In re Special Counsel Investigation, 332 F. Supp.

2d 26, 31 (D.D.C. 2004). We ourselves have affirmed the denial

of a criminal defense subpoena on grounds that the defendant

“failed to carry his burden” of “demonstrat[ing] that the

reporters’ qualified privilege should be overcome.” United

States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000). In civil

litigation, moreover, we have held that the First Amendment

4

requires courts to “look to the facts on a case-by-case basis in

the course of weighing the need for the testimony in question

against the claims of the newsman that the public’s right to

know is impaired.” Carey, 492 F.2d at 636; see also Zerilli, 656

F.2d at 707 (affirming the denial of a motion to compel

discovery because “in this case the First Amendment interest in

protecting a news reporter’s sources outweighs the interest in

compelled disclosure”). Other circuits have reached similar

conclusions. See, e.g., United States v. LaRouche Campaign,

841 F.2d 1176, 1180-81 (1st Cir. 1988) (acknowledging First

Amendment limits on criminal defense subpoenas directed at

news organizations); United States v. Burke, 700 F.2d 70, 76-77

(2d Cir. 1983) (extending a First Amendment reporter privilege

developed in civil cases to a criminal defense subpoena); Bruno

& Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 593-99

(1st Cir. 1980) (describing First Amendment limits on discovery

of reporters’ sources in civil litigation); Silkwood v. Kerr-McGee

Corp., 563 F.2d 433, 436-37 (10th Cir. 1977) (indicating that a

qualified newsgathering privilege “is no longer in doubt”); but

see In re Grand Jury Proceedings, 810 F.2d 580, 584-85 (6th

Cir. 1987) (rejecting claims of First Amendment privilege in

grand jury proceedings).

In this case, however, our hands are tied for two

independent reasons. First, although this circuit has limited

Branzburg in other contexts, see Zerilli, 656 F.2d at 707; Carey,

492 F.2d at 636; Ahn, 231 F.3d at 37, with respect to criminal

investigations we have twice construed that decision broadly.

In Reporters Committee for Freedom of the Press v. AT&T, 593

F.2d 1030 (D.C. Cir. 1978), which addressed a First Amendment

challenge regarding access to journalists’ phone records and

describing Branzburg as foreclosing “case-by-case

consideration,” we declared, “Good faith investigation interests

always override a journalist’s interest in protecting his source.”

Id. at 1049 (emphasis added). Echoing this broad view, we have

also described Branzburg as “squarely reject[ing]” a claim to

5

“general immunity, qualified or otherwise, from grand jury

questioning.” See In re Possible Violations of 18 U.S.C. 371,

641, 1503, 564 F.2d 567, 571 (D.C. Cir. 1977). In this circuit,

then, absent any indication of bad faith, I see no grounds for a

First Amendment challenge to the subpoenas at issue here.

Second, although Branzburg involved militants and drug

dealers rather than government leakers, the factual parallels

between that case and this one preclude us from quashing the

subpoenas on constitutional grounds. See majority op. at 10. If,

as Branzburg concludes, the First Amendment permits

compulsion of reporters’ testimony about individuals

manufacturing drugs or plotting against the government, see 408

U.S. at 667-69, 675-77, all information the government could

have obtained from an undercover investigation of its own, the

case for a constitutional privilege appears weak indeed with

respect to leaks, which in all likelihood will be extremely

difficult to prove without the reporter’s aid. Thus, if

Branzburg is to be limited or distinguished in the circumstances

of this case, we must leave that task to the Supreme Court.

II.

But Branzburg is not the end of the story. In 1975—three

years after Branzburg—Congress enacted Rule 501 of the

Federal Rules of Evidence, authorizing federal courts to develop

evidentiary privileges in federal question cases according to “the

principles of the common law as they may be interpreted . . . in

the light of reason and experience.” Fed. R. Evid. 501; see also

Pub. L. No. 93-595, 88 Stat. 1926 (1975). Given Branzburg’s

instruction that “Congress has freedom to determine whether a

statutory newsman’s privilege is necessary and desirable and to

fashion standards and rules as narrow or broad as deemed

necessary to deal with the evil discerned,” 408 U.S. at 706, Rule

501’s delegation of congressional authority requires that we look

6

anew at the “necess[ity] and desirab[ility]” of the reporter

privilege—though from a common law perspective.

Under Rule 501, that common lawmaking obligation exists

whether or not, absent the rule’s delegation, Congress would be

“the more appropriate institution to reconcile the competing

interests . . . that inform any reporter’s privilege to withhold

relevant information from a bona fide grand jury.” Sep. op. at

5 (Henderson, J., concurring) (citing Univ. of Pa. v. EEOC, 493

U.S. 182, 189 (1990)); but see sep. op. at 4-5 (Sentelle, J.,

concurring) (observing that even before Rule 501, case law

provided federal courts with “precisely the same authority” to

recognize common law privileges) (citing Wolfle v. United

States, 291 U.S. 7, 12 (1934)); Univ. of Pa., 493 U.S. at 189

(declining to recognize a privilege “where it appears that

Congress has considered the relevant competing concerns but

has not provided the privilege itself”). As the Supreme Court

has explained, “Rule 501 was adopted precisely because

Congress wished to leave privilege questions to the courts rather

than attempt to codify them.” United States v. Weber Aircraft

Corp., 465 U.S. 792, 803 n.25 (1984). Thus, subject of course

to congressional override, we must assess the arguments for and

against the claimed privilege, just as the Supreme Court has

done in cases recognizing common law privileges since 1975.

See, e.g., Jaffee v. Redmond, 518 U.S. 1, 15 (1996)

(psychotherapist-patient); Upjohn Co. v. United States, 449 U.S.

383, 389 (1981) (attorney-client); Trammel v. United States, 445

U.S. 40, 51 (1980) (confidential marital communications).

In this case, just as Jaffee v. Redmond recognized a common

law psychotherapist privilege based on “the uniform judgment

of the States,” 518 U.S. at 14, I believe that “reason and

experience” dictate a privilege for reporters’ confidential

sources—albeit a qualified one. Guided by Jaffee’s reasoning,

I reach this conclusion by considering first whether “reason and

experience” justify recognizing a privilege at all, and if so

7

whether the privilege should be qualified or absolute and

whether it should cover the communications at issue in this case.

Before undertaking that analysis, I think it helpful to

explain why, in my view, we should not, as would Judge

Henderson, short-circuit Jaffee’s framework and decide whether

the special counsel may overcome the reporter privilege without

ever reaching the issue of whether the privilege in fact exists.

See sep. op. at 1 (Henderson, J., concurring). Unless we

conclude, as does Judge Sentelle, see sep. op. at 1 (Sentelle, J.,

concurring), and as did the district court, see In re Special

Counsel Investigation, 338 F. Supp. 2d 16, 18-19 (D.D.C. 2004),

that no privilege exists, we cannot resolve this case without

adopting some standard. Judge Henderson criticizes my

approach, but she never indicates what standard she would

apply, except to state that “the Special Counsel’s evidentiary

proffer overcomes any hurdle, however high, a federal common-

law reporter’s privilege may erect.” See sep. op. at 1

(Henderson, J., concurring). To reach even that conclusion,

however, one must explain why federal common law cannot

support any higher “hurdle,” such as an absolute privilege for

source identities, which exists in the District of Columbia and

several states, see, e.g., D.C. Code Ann. §§ 16-4702, 16-

4703(b); 42 Pa. Cons. Stat. § 5942; Ala. Code § 12-21-142, or

a privilege that applies unless non-disclosure “will cause a

miscarriage of justice,” N.D. Cent. Code § 31-01-06.2; see also

Minn. Stat. § 595.024; N.M. Stat. Ann. § 38-6-7. Without ruling

out all such plausible alternatives that would allow the reporters

to prevail, how could one know that they cannot prevail here?

And without selecting some other test based on Jaffee and Rule

501, how could one know that no such alternatives are

plausible?

Because the Jaffee analysis is thus essential to resolving this

case (assuming a privilege exists), our frequent practice of

avoiding non-essential issues is inapplicable. To be sure,

8

declining to resolve waived issues, see, e.g., Carney v. Am.

Univ., 151 F.3d 1090, 1094-95 (D.C. Cir. 1998), disposing of

procedurally defective claims without reaching the merits, see,

e.g., Jackson v. District of Columbia, 254 F.3d 262, 264, 270-71

(D.C. Cir. 2001); cf. Massachusetts v. U.S. Dep’t of Transp., 93

F.3d 890, 891 (D.C. Cir. 1996) (assuming deferential review

because even under that standard agency action was

unreasonable), and expressing no view on one element of a

claim because another element is clearly defective, see, e.g.,

Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1142 (D.C. Cir.

2002); Dir., Office of Thrift Supervision v. Vinson & Elkins,

LLP, 124 F.3d 1304, 1308 (D.C. Cir. 1997); Littlewolf v. Lujan,

877 F.2d 1058, 1060 (D.C. Cir. 1989), may well represent

“patience in judicial decision-making,” sep. op. at 1 (Henderson,

J., concurring). Patience, however, cannot justify “declining . .

. to define [the disputed privilege’s] contours,” see id. at 9, for

that is the dispositive issue in this case.

Accordingly, given that we must apply some test to the

government’s showing, if we simply assume the privilege exists

but our assumption is wrong, then we will have reached out to

establish a framework for a non-existent claim—an undertaking

hardly consistent with principles of judicial restraint. Indeed,

our decision would establish a precedent, potentially binding on

future panels, regarding the scope of the assumed privilege, even

though resolving that question was entirely unnecessary.

Therefore, I think it imperative to decide as a threshold matter

whether the privilege exists, turning only afterwards to the

privilege’s specific contours.

In this case, moreover, the issue of the privilege’s existence

is fully briefed, and resolving it definitively will provide critical

guidance in similar situations in the future. This is not the only

case to raise reporter privilege issues in D.C. federal courts in

recent years. See Lee v. U.S. Dep’t of Justice, 327 F. Supp. 2d

26 (D.D.C. 2004); Lee v. U.S. Dep’t of Justice, 287 F. Supp. 2d

9

15 (D.D.C. 2003). And given the many leaks that no doubt

occur in this city every day, it would be naive to suppose that it

will be the last. For the sake of reporters and sources whom

such litigation may ensnare, we should take this opportunity to

clarify the rules governing their relationship.

Thus, I agree with Judge Sentelle that “the question of the

existence of such privilege vel non is logically anterior to the

quantum of proof necessary to overcome it.” Sep. op. at 1

(Sentelle, J., concurring). Without resolving the first question,

we cannot and should not decide the second.

Existence of the Privilege

Under Jaffee, the common law analysis starts with the

interests that call for recognizing a privilege. See 518 U.S. at

11. If, as the Supreme Court held there, “[t]he mental health of

our citizenry is a public good of transcendent importance,”

id.—one that trumps the “fundamental maxim that the public has

a right to every man’s evidence,” id. at 9 (internal quotation

marks and ellipsis omitted)—then surely press freedom is no

less important, given journalism’s vital role in our democracy.

Indeed, while the Jaffee dissenters questioned psychotherapy’s

“indispensable role in the maintenance of the citizenry’s mental

health,” see id. at 22 (Scalia, J., dissenting), the First

Amendment’s express protection for “freedom . . . of the press”

forecloses any debate about that institution’s “important role in

the discussion of public affairs,” Mills v. Alabama, 384 U.S.

214, 219 (1966). “Whatever differences may exist about

interpretations of the First Amendment, there is practically

universal agreement that a major purpose of that Amendment

was to protect the free discussion of governmental affairs.”

Brown v. Hartlage, 456 U.S. 45, 52 (1982) (quoting Mills, 384

U.S. at 218-19).

Like psychotherapists, as well as attorneys and spouses, all

of whom enjoy privileges under Rule 501, see, e.g., Jaffee, 518

10

U.S. at 18 (psychotherapists); Upjohn Co., 449 U.S. at 389

(attorneys); SEC v. Lavin, 111 F.3d 921, 925 (D.C. Cir. 1997)

(spouses), reporters “depend[] upon an atmosphere of

confidence and trust,” Jaffee, 518 U.S. at 10. If litigants and

investigators could easily discover journalists’ sources, the

press’s truth-seeking function would be severely impaired.

Reporters could reprint government statements, but not ferret

out underlying disagreements among officials; they could cover

public governmental actions, but would have great difficulty

getting potential whistleblowers to talk about government

misdeeds; they could report arrest statistics, but not garner first-

hand information about the criminal underworld. Such valuable

endeavors would be all but impossible, for just as mental

patients who fear “embarrassment or disgrace,” id., will “surely

be chilled” in seeking therapy, id. at 12, so will sources who fear

identification avoid revealing information that could get them in

trouble.

Because of these chilling effects, “[w]ithout a privilege,

much of the desirable evidence to which litigants . . . seek access

. . . is unlikely to come into being.” Id. Consequently, as with

other privileges, “the likely evidentiary benefit that would result

from the denial of the privilege is modest.” Id. At the same

time, although suppression of some leaks is surely desirable (a

point to which I shall return), the public harm that would flow

from undermining all source relationships would be immense.

For example, appellant Judith Miller tells us that her Pulitzer

Prize-winning articles on Osama bin Laden’s terrorist network

relied on “information received from confidential sources at the

highest levels of our government.” (Miller Aff. ¶ 10,

Appellant’s App. at 169.) Likewise, appellant Matthew Cooper

maintains that his reports for “Time’s four million-plus readers

about White House policy in Iraq, the chances of passage of

major legislation such as Budget and Energy Bills, and the

Clinton White House” would have been impossible without

confidentiality. (Cooper Aff. ¶ 21, Appellant’s App. at 286.)

11

Insofar as such stories exemplify the press’s role “as a

constitutionally chosen means for keeping officials elected by

the people responsible to all the people whom they were elected

to serve,” Mills, 384 U.S. at 219, “reason and experience”

support protecting newsgathering methods crucial to their

genesis. Acknowledging as much in Zerilli, we emphasized that

“[c]ompelling a reporter to disclose the identity of a source may

significantly interfere with this news gathering ability” and

weaken “a vital source of information,” leaving citizens “far less

able to make informed political, social, and economic choices.”

656 F.2d at 711.

It is true, as the special counsel observes, that apart from

affidavits and citations to two articles in their reply brief, the

reporters present no empirical evidence that denial of the

privilege “will have a significant impact on the free flow of

information protected by the First Amendment.” Appellee’s Br.

at 47. But the Supreme Court has never required proponents of

a privilege to adduce scientific studies demonstrating the

privilege’s benefits. Rather, as the Jaffee dissenters pointed out,

the empirical question—“[h]ow likely is it that a person will be

deterred from seeking psychological counseling, or from being

completely truthful in the course of such counseling, because of

fear of later disclosure in litigation?”—was one “[t]he Court

[did] not attempt to answer.” 518 U.S. at 22-23 (Scalia, J.,

dissenting). Instead, following the wise precept that common

sense need not be “the mere handmaiden of social science data

or expert testimonials,” Amatel v. Reno, 156 F.3d 192, 199 (D.C.

Cir. 1998), Jaffee relied on the traditional common law process:

it examined the logical prerequisites of the confidential

relationship, taking into account the policy and experience of

parallel jurisdictions. See Jaffee, 518 U.S. at 10 (reasoning that

given the need for “frank and complete disclosure of facts,

emotions, memories, and fears” in psychotherapy, “the mere

possibility of disclosure may impede development of the

confidential relationship necessary for successful treatment”).

12

Likewise, in Trammel v. United States, while justifying the

privilege against adverse spousal testimony in terms of “marital

harmony,” 445 U.S. at 44-45, 53, the Court allowed waiver by

the testifying spouse based not on divorce statistics or

psychological studies, but rather on the commonsense

supposition that “[w]hen one spouse is willing to testify against

the other in a criminal proceeding—whatever the

motivation—their relationship is almost certainly in disrepair,”

id. at 52. And in Swidler & Berlin v. United States, 524 U.S.

399 (1998), though finding the “empirical information . . . scant

and inconclusive,” id. at 410, the Court held that the attorney-

client privilege survives the client’s death because “[k]nowing

that communications will remain confidential even after death

encourages the client to communicate fully and frankly with

counsel,” id. at 407—a proposition the Court supported with

neither evidence nor even citation. Given these decisions, the

equally commonsense proposition that reporters’ sources will be

more candid when promised confidentiality requires no

empirical support.

In any event, the special counsel’s confidence that exposing

sources will have no effect on newsgathering is unjustified.

Citing the “‘symbiotic’ relationships between journalists and

public officials,” the special counsel presumes that leaks will go

on with or without the privilege. Appellee’s Br. at 47 (quoting

Branzburg, 408 U.S. at 694); see also sep. op. at 3 n.3

(Henderson, J., concurring). Not only does this contradict the

Justice Department’s own guidelines, which expressly recognize

that revealing confidential sources can “impair the news

gathering function,” 28 C.F.R. § 50.10, but the available

evidence suggests the special counsel is wrong. As anyone with

even a passing interest in news knows, reporters routinely rely

on sources speaking on condition of anonymity—a strong

indication that leakers demand such protection. Besides, for all

the reasons that lead me to conclude that a privilege exists,

reporters and their editors, attorneys, and sources probably

13

believe the same, making it speculative indeed for the special

counsel to suppose that dashing that expectation of

confidentiality would have no effect on newsgathering.

Turning next, as did Jaffee, to the consensus among states,

I find support for the privilege at least as strong for journalists

as for psychotherapists. Just as in Jaffee, where “the fact that all

50 states and the District of Columbia have enacted into law

some form of psychotherapist privilege” favored an exercise of

federal common lawmaking, see 518 U.S. at 12, so here

undisputed evidence that forty-nine states plus the District of

Columbia offer at least qualified protection to reporters’ sources

confirms that “‘reason and experience’ support recognition of

the privilege,” id. at 13. Indeed, given these state laws, “[d]enial

of the federal privilege . . . would frustrate the purposes of the

state legislation” by exposing confidences protected under state

law to discovery in federal courts. See id.

Making the case for a privilege here even stronger than in

Jaffee, federal authorities also favor recognizing a privilege for

reporters’ confidential sources. As noted earlier, we ourselves

have limited discovery of reporters’ sources in both civil and

criminal litigation, see Zerilli, 656 F.2d at 707; Carey, 492 F.2d

at 636; Ahn, 231 F.3d at 37, as have other federal courts, see,

e.g., Bruno & Stillman, 633 F.2d at 593-99; Burke, 700 F.2d at

76-77; Silkwood, 563 F.2d at 436-37, including some acting on

the basis of Rule 501, see, e.g., Riley v. City of Chester, 612 F.2d

708, 715 (3d Cir. 1979) (recognizing a qualified common law

privilege in civil litigation); but see In re Grand Jury

Proceedings, 5 F.3d 397, 398 (9th Cir. 1993) (holding that no

“scholar’s privilege” exists under the First Amendment or

common law). In addition, the Justice Department guidelines

(though privately unenforceable, for reasons the court explains,

see majority op. at 20-23) establish a federal policy of protecting

“news media from forms of compulsory process, whether civil

or criminal, which might impair the news gathering function.”

14

28 C.F.R. § 50.10. Denial of the privilege, then, would not only

buck the clear policy of virtually all states, but would also

contradict regulations binding on the federal government’s own

lawyers.

Resisting this consensus, the special counsel asserts that

Branzburg already performed the analysis required by Rule 501,

thus “resolv[ing] the common law argument.” Appellee’s Br. at

35; see also sep. op. at 1-3 (Sentelle, J., concurring). Branzburg

did no such thing. As the Branzburg majority’s very first

sentence makes plain, the “issue” in that case was “whether

requiring newsmen to appear and testify before state or federal

grand juries abridges the freedom of speech and press

guaranteed by the First Amendment,” 408 U.S. at 667 (emphasis

added), not whether it abridged the common law. Later

emphasizing the same point, the majority stated, “Petitioners

Branzburg and Pappas and respondent Caldwell press First

Amendment claims.” Id. at 679 (emphasis added); see also sep.

op. at 3-4 (Henderson, J., concurring). Indeed, having examined

the briefs and lower court opinions, I see no evidence that the

parties ever even argued for a separate common law privilege.

To be sure, the majority declared that “the great weight of

authority is that newsmen are not exempt from the normal duty

of appearing before a grand jury and answering questions

relevant to a criminal investigation,” id. at 685, but that point

served only to reinforce the majority’s constitutional holding.

Nor does Branzburg support the concurrence’s

constitutional avoidance theory. See sep. op. at 2 (Sentelle, J.,

concurring). Although the Branzburg majority could have

avoided the First Amendment claim by recognizing a common

law privilege, given that the majority opinion neither did so nor

even raised that possibility, Branzburg’s holding hardly

forecloses the common law argument presented here. Quite the

contrary, Branzburg acknowledged that “Congress has freedom

to determine whether a statutory newsman’s privilege is

15

necessary and desirable and to fashion standards and rules as

narrow or broad as deemed necessary to deal with the evil

discerned,” 408 U.S. at 706, a power Congress delegated to the

federal courts through Rule 501. Thus, if anything, the view that

Branzburg disposed of the common law privilege gets it

backwards. Insofar as Branzburg relied on the “great weight of

authority” to discern the First Amendment’s meaning, see id. at

686, the shift in favor of the privilege since that time—from

seventeen states with statutory privileges then to thirty-one plus

D.C. today, with another eighteen providing common law

protection—could provide a basis for rethinking Branzburg. Cf.

Atkins v. Virginia, 536 U.S. 304, 306-07 (2002) (overturning

prior understanding of Eighth Amendment “cruel and unusual

punishment” based on a “consensus” among “the American

public, legislators, scholars, and judges” regarding execution of

the mentally retarded). Although that is something only the

Supreme Court can do, this point underscores the error in seeing

Branzburg as dispositive.

Given that the common law issue thus remains open, this

court must assess the reporters’ claim in light of “reason and

experience” today. As Branzburg itself observes in describing

Congress’s powers, privilege rules may require “refashion[ing]

. . . as experience from time to time may dictate.” 408 U.S. at

706. Bestowing that refashioning power on the federal courts,

Rule 501 evidences an “affirmative intention not to freeze the

law of privilege,” but rather “to leave the door open to change.”

Trammel, 445 U.S. at 47. Consistent with that intent, the Court

in Trammel modified the privilege against adverse spousal

testimony recognized just twenty-two years earlier in Hawkins

v. United States, 358 U.S. 74 (1958), allowing the testifying

spouse to waive the privilege, see Trammel, 445 U.S. at 53, even

though Hawkins had held just the opposite, see Hawkins, 358

U.S. at 77-78. Had the Supreme Court addressed a common law

claim in Branzburg, lower courts might lack authority to

reconsider that case’s result notwithstanding the subsequent

16

growth in support for the privilege. But cf. Trammel, 445 U.S.

at 43 (affirming court of appeals decision limiting Hawkins).

Absent such a definitive ruling, however, and despite

Branzburg’s observation about the “great weight of authority”

thirty-three years ago, see 408 U.S. at 686, we must approach

the issue with the same open-mindedness demonstrated by

Trammel.

For much the same reason, the omission of a reporter

privilege from the Judicial Conference Advisory Committee’s

draft rules submitted to Congress in 1972 (and ultimately

replaced by Rule 501) need not dictate the outcome here. True,

as the special counsel points out, the Supreme Court in United

States v. Gillock, 445 U.S. 360, 367-68 (1980), declined to

recognize a privilege not appearing in the Advisory Committee

draft. As that decision acknowledges, however, the draft rules

merely reflected what was “thought to be . . . indelibly

ensconced in our common law” at the time. See id.

Accordingly, when the Jaffee Court considered whether the

psychotherapist privilege extended to social workers, it relied

not on the 1972 draft, which covered only licensed

psychotherapists, but rather on the reasons for the privilege and

the state laws in effect when Jaffee was decided. See Jaffee, 518

U.S. at 15-17 & n.16. Likewise, here, the dramatic growth in

support for the reporter privilege supercedes the Advisory

Committee’s decades-old choice to omit the privilege from its

draft.

Equally inconsequential is the adoption of the reporter

privilege in thirty-one states through legislation, rather than

judicial action. See sep. op. at 5 (Sentelle, J., concurring). As

the Jaffee dissent pointed out, a far greater proportion of

states—indeed, every state—established the psychotherapist

privilege by statute, see Jaffee, 518 U.S. at 25-26 (Scalia, J.,

dissenting), yet the majority considered that fact “of no

consequence,” id. at 13-14. Nor does it matter that

17

unconventional forms of journalism—freelance writers and

internet “bloggers,” for example—may raise definitional

conundrums down the road. See sep. op. at 5-9 (Sentelle, J.,

concurring); but see Eugene Volokh, Opinion, You Can Blog,

But You Can’t Hide, N.Y. Times, Dec. 2, 2004, at A39 (“[T]he

rules should be the same for old media and new, professional

and amateur. Any journalist’s privilege should extend to every

journalist.”). As Jaffee makes clear, “[a] rule,” such as Rule

501, “that authorizes the recognition of new privileges on a

case-by-case basis makes it appropriate to define the details of

new privileges in a like manner.” 518 U.S. at 18. After all,

“flexibility and capacity for growth and adaptation is the

peculiar boast and excellence of the common law.” Hurtado v.

California, 110 U.S. 516, 530 (1884). Here, whereas any

meaningful reporter privilege must undoubtedly encompass

appellants Cooper and Miller, full-time journalists for Time

magazine and the New York Times, respectively, future opinions

can elaborate more refined contours of the privilege—a task

shown to be manageable by the experience of the fifty

jurisdictions with statutory or common law protections.

In sum, “reason and experience,” as evidenced by the laws

of forty-nine states and the District of Columbia, as well as

federal courts and the federal government, support recognition

of a privilege for reporters’ confidential sources. To disregard

this modern consensus in favor of decades-old views, as the

special counsel urges, would not only imperil vital

newsgathering, but also shirk the common law function assigned

by Rule 501 and “freeze the law of privilege” contrary to

Congress’s wishes, see Trammel, 445 U.S. at 47.

Scope of the Privilege

The next step, according to Jaffee, is to determine what

principles govern the privilege’s application in this case. See

Jaffee, 518 U.S. at 15-16 (deciding first that a psychotherapist

18

privilege exists and only then addressing whether the privilege

applies to social workers). Pointing out that many jurisdictions

recognize only qualified protection for reporters, the special

counsel argues that the uniform judgment of states must support

application of the privilege in the precise context at

issue—defiance of grand jury subpoenas—before federal courts

may recognize it. That view, however, belonged to the Jaffee

dissent, not the seven-justice majority. Although the dissenters

noted an “enormous degree of disagreement among the States as

to the scope of the privilege,” 518 U.S. at 33 (Scalia, J.,

dissenting), particularly as to which professions it covered, see

id. at 27 (Scalia, J., dissenting), the Court extended the privilege

to licensed social workers because “[t]he reasons for recognizing

a privilege for treatment by psychiatrists and psychologists

apply with equal force to treatment by a clinical social worker,”

id. at 16-17. Likewise, Jaffee rejected a proposed balancing test

not because other jurisdictions had done so, but because

“[m]aking the promise of confidentiality contingent upon a trial

judge’s later evaluation of the relative importance of the

patient’s interest in privacy and the evidentiary need for

disclosure would eviscerate the effectiveness of the privilege.”

See id. at 17-18.

Here, even assuming that some jurisdictions categorically

exclude grand jury subpoenas—a proposition for which the

special counsel cites no authority—the interests protected by the

privilege militate against such a limited approach. Although the

public interest in law enforcement may well be at its apex when

the government is investigating crime, news stories of

paramount First Amendment importance, such as reports about

government corruption or wrongdoing, may involve sources

who “would surely be chilled,” Jaffee, 518 U.S. at 12, if they

thought grand juries could discover their identities from

reporters in whom they confide. Furthermore, the special

counsel’s proposal is quite anomalous, considering that neither

the attorney-client, nor the spousal, nor even the psychotherapist

19

privilege gives way to the grand jury’s truth-seeking function.

See, e.g., Swidler & Berlin, 524 U.S. at 403 (attorney-client);

Blau v. United States, 340 U.S. 332, 333 (1951) (spousal); In re

Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 72

(1st Cir. 1999) (allowing grand jury testimony not because no

psychotherapist privilege exists in that context, but rather

because a “crime-fraud exception” applies to the privilege).

As to the scope of the privilege, however, I agree with the

special counsel that protection for source identities cannot be

absolute. Leaks similar to the crime suspected here (exposure

of a covert agent) apparently caused the deaths of several CIA

operatives in the late 1970s and early 1980s, including the

agency’s Athens station chief. See Haig v. Agee, 453 U.S. 280,

284-85 & n.7 (1981). Other leaks—the design for a top secret

nuclear weapon, for example, or plans for an imminent military

strike—could be even more damaging, causing harm far in

excess of their news value. In such cases, the reporter privilege

must give way. Just as attorney-client communications “made

for the purpose of getting advice for the commission of a fraud

or crime” serve no public interest and receive no privilege, see

United States v. Zolin, 491 U.S. 554, 563 (1989) (internal

quotation marks omitted), neither should courts protect sources

whose leaks harm national security while providing minimal

benefit to public debate.

Of course, in some cases a leak’s value may far exceed its

harm, thus calling into question the law enforcement rationale

for disrupting reporter-source relationships. For example,

assuming Miller’s prize-winning Osama bin Laden series caused

no significant harm, I find it difficult to see how one could

justify compelling her to disclose her sources, given the obvious

benefit of alerting the public to then-underappreciated threats

from al Qaeda. News reports about a recent budget controversy

regarding a super-secret satellite program inspire another

example (though I know nothing about the dispute’s details and

20

express no view as to its merits). See, e.g., Dan Eggen & Walter

Pincus, Justice Reviews Request for Probe of Satellite Reports,

Wash. Post, Dec. 16, 2004, at A3; Douglas Jehl, New Spy Plan

Said to Involve Satellite System, N.Y. Times, Dec. 12, 2004, at

A1. Despite the necessary secrecy of intelligence-gathering

methods, it seems hard to imagine how the harm in leaking

generic descriptions of such a program could outweigh the

benefit of informing the public about billions of dollars wasted

on technology considered duplicative and unnecessary by

leading Senators from both parties. In contrast to the nuclear

weapon and military strike examples mentioned above, cases

like these appear to involve a balance of harm and news value

that strongly favors protecting newsgathering methods.

Given these contrasting examples, much as our civil cases

balance “the public interest in protecting the reporter’s sources

against the private interest in compelling disclosure,” Zerilli,

656 F.2d at 712; see also Carey, 492 F.2d at 634-36, so must the

reporter privilege account for the varying interests at stake in

different source relationships. In other words, to quote the

Justice Department subpoena guidelines, “the approach in every

case must be to strike the proper balance between the public’s

interest in the free dissemination of ideas and information and

the public’s interest in effective law enforcement and the fair

administration of justice.” 28 C.F.R. § 50.10(a).

Citing our reporter privilege cases—Zerilli, Carey, and

Ahn—the special counsel urges us to rely on two factors deemed

“central” in those decisions and emphasized in the Justice

Department guidelines: first, the requesting party’s need for the

evidence, and second, that party’s exhaustion of alternative

sources. See Zerilli, 656 F.2d at 712-14; Ahn, 231 F.3d at 37;

Carey, 492 F.2d at 636-37, 638; 28 C.F.R. § 50.10(b), (f)(1).

While both these considerations are obviously essential to

minimizing the burden on newsgathering, they can serve as

exclusive measures in the privilege analysis only where there

21

exist means of proof other than compelling the reporter’s

testimony. When prosecuting crimes other than leaks (murder

or embezzlement, say) the government, at least theoretically, can

learn what reporters know by replicating their investigative

efforts, e.g., speaking to the same witnesses and examining the

same documents. Accordingly, if a truly exhaustive

investigation has failed to prove a crime that the government

reasonably believes has occurred, compelled disclosure of a

reporter’s source may be justified notwithstanding the attendant

burdens on newsgathering. As the special counsel

acknowledged at oral argument, however, when the government

seeks to punish a leak, a test focused on need and exhaustion

will almost always be satisfied, leaving the reporter’s source

unprotected regardless of the information’s importance to the

public. The reason for this is obvious: Insofar as the

confidential exchange of information leaves neither paper trail

nor smoking gun, the great majority of leaks will likely be

unprovable without evidence from either leaker or leakee. Of

course, in some cases, circumstantial evidence such as telephone

records may point towards the source, but for the party with the

burden of proof, particularly the government in a criminal case,

such evidence will often be inadequate.

In leak cases, then, courts applying the privilege must

consider not only the government’s need for the information and

exhaustion of alternative sources, but also the two competing

public interests lying at the heart of the balancing test.

Specifically, the court must weigh the public interest in

compelling disclosure, measured by the harm the leak caused,

against the public interest in newsgathering, measured by the

leaked information’s value. That framework allows authorities

seeking to punish a leak to access key evidence when the leaked

information does more harm than good, such as in the nuclear

weapon and military strike examples, while preventing

discovery when no public interest supports it, as would appear

to be the case with Miller’s Osama bin Laden articles. Though

22

flexible, these standards (contrary to the special counsel’s claim)

are hardly unmanageable. Indeed, the Supreme Court employs

a similar requirement of “legitimate news interest,” meaning

“value and concern to the public at the time of publication,” in

assessing restrictions on government employee speech. See City

of San Diego v. Roe, __ U.S. __, 125 S.Ct. 521, 526 (2004) (per

curiam). Nor is this analysis “novel,” see sep. op. at 3

(Henderson, J., concurring), considering its basis in Zerilli and

Carey and the Justice Department’s own guidelines.

Though recognizing that leaks with “national security

implications” raise different concerns from “information in the

nature of ‘whistleblowing,’” Appellee’s Br. at 44, 48, the special

counsel insists that the prosecutor, not the court, should assess

factors other than need and exhaustion. Under this theory,

balancing the two remaining concerns, the harmfulness of the

leaked information and the damage to newsgathering that might

flow from enforcing the disputed subpoenas, would be a matter

of prosecutorial discretion. In my view, the special counsel’s

position distorts the roles of judge and prosecutor in evidentiary

disputes.

Although courts certainly defer to executive judgments

about which crimes merit prosecution—a judgment that is, after

all, a “core executive constitutional function,” United States v.

Armstrong, 517 U.S. 456, 465 (1996)—nonetheless the

executive branch possesses no special expertise that would

justify judicial deference to prosecutors’ judgments about the

relative magnitude of First Amendment interests. Assessing

those interests traditionally falls within the competence of

courts. Cf. Landmark Communications, Inc. v. Virginia, 435

U.S. 829, 843 (1978) (“Deference to a legislative finding cannot

limit judicial inquiry when First Amendment rights are at

stake.”). Indeed, while the criminality of a leak and the

government’s decision to press charges might well indicate the

leak’s harmfulness—a central concern of the balancing

23

test—once prosecutors commit to pursuing a case they naturally

seek all useful evidence. Consistent with that adversarial role,

the Federal Rules of Evidence assign to courts the function of

neutral arbiter: “Preliminary questions concerning the

qualification of a person to be a witness, the existence of a

privilege, or the admissibility of evidence shall be determined by

the court.” Fed. R. Evid. 104(a) (emphasis added).

Accordingly, just as courts determine the admissibility of

hearsay or the balance between probative value and unfair

prejudice under Rule 403, so with respect to this issue must

courts weigh factors bearing on the privilege.

Moreover, in addition to these principles applicable to the

judicial role in any evidentiary dispute, the dynamics of leak

inquiries afford a particularly compelling reason for judicial

scrutiny of prosecutorial judgments regarding a leak’s harm and

news value. Because leak cases typically require the

government to investigate itself, if leaks reveal mistakes that

high-level officials would have preferred to keep secret, the

administration may pursue the source with excessive zeal,

regardless of the leaked information’s public value. Of course,

in this case a special counsel was appointed to exercise

independent judgment. Yet independent prosecutors, too, may

skew their assessments of the public interests implicated when

a reporter is subpoenaed. After all, special prosecutors, immune

to political control and lacking a docket of other cases, face

pressure to justify their appointments by bagging their prey. Cf.

Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J.,

dissenting) (noting “the vast power and the immense discretion

that are placed in the hands of a prosecutor with respect to the

objects of his investigation” and observing that “the primary

check against prosecutorial abuse is a political one”). To be

clear: I do not impugn the motives of this special counsel.

Indeed, as I conclude below, his pursuit of the reporters’

testimony appears reasonable. Nevertheless, these

considerations—the special counsel’s political independence, his

24

lack of a docket, and the concomitant risk of

overzealousness—weigh against his claim to deference in

balancing harm against news value.

Paralleling the special counsel’s argument about executive

discretion, my concurring colleague suggests that my approach

pays insufficient deference to Congress. See sep. op. at 8

(Henderson, J., concurring). “Branzburg,” she writes, “warns of

the risk inherent in the judicial assessment of the importance of

prosecuting particular crimes.” See id. Although it is true that

Branzburg cautioned against second-guessing the “legislative

judgment . . . of what conduct is liable to criminal prosecution,”

408 U.S. at 706, it did so in a passage rejecting a test of

governmental need that apparently “distinguish[ed] between the

value of enforcing different criminal laws,” deeming some

statutes “compelling” and others unimportant. See id. at 702,

705-06. The approach I propose entails no such judgment about

the value of the statute under which the government is

proceeding. Rather, my approach focuses on whether evidence

the government believes it needs, i.e., a reporter’s testimony

about a particular source, is privileged. To be sure, insofar as

the reporter’s testimony is critical in a particular case,

privileging the evidence may render that case unprovable. But

that risk accompanies any privilege or indeed any rule of

evidentiary exclusion. Had Congress believed that judicial

decisions excluding evidence interfered with its “legislative

judgment” regarding underlying crimes, it would hardly have

authorized recognition of common law privileges by enacting

Rule 501.

Furthermore, and perhaps even more important, Branzburg

addressed only a First Amendment privilege claim. See supra at

14. In that case, therefore, because Congress cannot overturn

constitutionally based decisions, recognizing the asserted

privilege would have permanently foreclosed punishment of any

crimes dependent on proof subject to the privilege. The

25

qualified privilege I would recognize, however, rests on Rule

501, not the Constitution. If Congress believes that this

approach overrides its judgment about what conduct should be

criminal, it may simply overturn the privilege and authorize use

of the evidence.

Next, the special counsel argues that waivers signed by

suspected sources represent an “additional factor” favoring

compulsion of the reporters’ testimony. Appellee’s Br. at 46.

As the reporters point out, however, numerous cases (including

persuasive district court decisions from this circuit) indicate that

only reporters, not sources, may waive the privilege. See, e.g.,

United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980);

Palandjian v. Pahlavi, 103 F.R.D. 410, 413 (D.D.C. 1984);

Anderson v. Nixon, 444 F. Supp. 1195, 1198-99 (D.D.C. 1978).

For the contrary proposition, the special counsel cites McKevitt

v. Pallasch, 339 F.3d 530 (7th Cir. 2003), but that case involved

a criminal defendant’s effort to obtain non-confidential records

from the biographers of a government witness, not waiver of

confidentiality by a previously unidentified source. See id. at

531, 533-34. Nor does Hutira v. Islamic Republic of Iran, 211

F. Supp. 2d 115 (D.D.C. 2002), help the special counsel. While

that decision indicated that “‘the absence of confidentiality may

be considered in the balance of competing interests as a factor

that diminishes the journalist’s, and the public’s, interest in non-

disclosure,’” id. at 120 (quoting Shoen v. Shoen, 5 F.3d 1289,

1295 (9th Cir. 1993)), it quashed the subpoena at issue,

reasoning that “the privilege for journalists shields both

confidential and nonconfidential information from compelled

disclosure,” id.

As this case law recognizes, a source’s waiver is irrelevant

to the reasons for the privilege. Because the government could

demand waivers—perhaps even before any leak occurs—as a

condition of employment, a privilege subject to waiver may,

again, amount to no privilege at all, even in those leak cases

26

where protecting the confidential source is most compelling.

Moreover, although the attorney-client and psychotherapist

privileges are waivable by clients and patients, respectively, see,

e.g., In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989)

(attorney-client); Jaffee, 518 U.S. at 15 n.14 (psychotherapist),

that is because those privileges exist to prevent disclosure of

sensitive matters related to legal and psychological counseling,

see, e.g., Swidler & Berlin, 524 U.S. at 407-08; Jaffee, 518 U.S.

at 10-11, a rationale that vanishes when the source authorizes

disclosure. In contrast, the reporter privilege safeguards public

dissemination of information—the reporter’s enterprise, not the

source’s.

Consistent with that purpose, the privilege belongs to the

reporter. Not only are journalists best able to judge the

imperatives of newsgathering, but while the source’s interest is

limited to the particular case, the reporter’s interest aligns with

the public, for journalists must cultivate relationships with other

sources who might keep mum if waiving confidentiality at the

government’s behest could lead to their exposure. Indeed, as

compared to counseling-related privileges, the privilege against

spousal testimony represents a better analogy. Just as under

Trammel’s waiver theory testifying spouses, regardless of the

other spouse’s wishes, may judge for themselves whether their

testimony will undermine “marital harmony,” see Trammel, 445

U.S. at 44-45, 52-53, so should journalists—the experts in

newsgathering—base the decision to testify on their own

assessment of the consequences, unconstrained by their source’s

waiver (provided other requirements of the privilege are met).

For their part, appellants insist that a qualified privilege

fails to provide the certainty their work requires because sources

are unlikely to disclose information without an advance

guarantee of secrecy. In particular, they argue that journalists

cannot balance a leak’s harm against its news value until they

know what information the source will reveal, by which time it

27

is too late to prevent disclosure. True enough, but journalists are

not the ones who must perform the balancing; sources are.

Indeed, the point of the qualified privilege is to create

disincentives for the source—disincentives that not only

promote the public interest, but may also protect journalists

from exploitation by government officials seeking publication

of damaging secrets for partisan advantage. Like other

recipients of potentially privileged communications—say,

attorneys or psychotherapists—the reporter can at most alert the

source to the limits of confidentiality, leaving the judgment of

what to say to the source. While the resulting deterrent effect

may cost the press some leads, little harm will result, for if the

disincentives work as they should, the information sources

refrain from revealing will lack significant news value in the

first place.

In any event, although Jaffee said that “[m]aking the

promise of confidentiality contingent upon a trial judge’s later

evaluation . . . [will] eviscerate the effectiveness of the

privilege,” 518 U.S. at 17, the clash of fundamental interests at

stake when the government seeks discovery of a reporter’s

sources precludes a categorical approach. See Zerilli, 656 F.2d

at 712 n.46 (rejecting arguments for greater “specificity” as to

the scope of the First Amendment privilege in civil litigation).

And as we explained in Zerilli, the “deterrence effect” on

beneficial newsgathering will be small if courts make clear that

the privilege is “overridden only in rare circumstances.” See id.

at 712 & n.46.

In short, the question in this case is whether Miller’s and

Cooper’s sources released information more harmful than

newsworthy. If so, then the public interest in punishing the

wrongdoers—and deterring future leaks—outweighs any burden

on newsgathering, and no privilege covers the communication

(provided, of course, that the special counsel demonstrates

necessity and exhaustion of alternative evidentiary sources).

28

III.

Applying this standard to the facts of this case, and

considering first only the public record, I have no doubt that the

leak at issue was a serious matter. Authorized “to investigate

and prosecute violations of any federal criminal laws related to

the underlying alleged unauthorized disclosure, as well as

federal crimes committed in the course of, and with intent to

interfere with, [his] investigation, such as perjury, obstruction of

justice, destruction of evidence, and intimidation of witnesses,”

see Letter from James B. Comey, Acting Attorney General, to

Patrick J. Fitzgerald, United States Attorney, Northern District

of Illinois (Feb. 6, 2004), the special counsel is attempting to

discover the origins of press reports describing Valerie Plame as

a CIA operative monitoring weapons of mass destruction. See

majority op. at 3-5. These reports appeared after Plame’s

husband, former Ambassador Joseph Wilson, wrote in a New

York Times op-ed column that his findings on an official mission

to Niger in 2002 cast doubt on President Bush’s assertion in his

January 2003 State of the Union address that Iraq “recently

sought significant quantities of uranium from Africa.” See id. at

3.

An alleged covert agent, Plame evidently traveled overseas

on clandestine missions beginning nearly two decades ago. See,

e.g., Richard Leiby & Dana Priest, The Spy Next Door; Valerie

Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct.

8, 2003, at A1. Her exposure, therefore, not only may have

jeopardized any covert activities of her own, but also may have

endangered friends and associates from whom she might have

gathered information in the past. Acting to criminalize such

exposure of secret agents, see 50 U.S.C. § 421, Congress has

identified that behavior’s “intolerable” consequences: “[t]he

loss of vital human intelligence which our policymakers need,

the great cost to the American taxpayer of replacing intelligence

resources lost due to such disclosures, and the greatly increased

29

risk of harm which continuing disclosures force intelligence

officers and sources to endure.” S. Rep. No. 97-201, at 10-11

(1981), reprinted in 1982 U.S.C.C.A.N. 145, 154-55.

The leak of Plame’s apparent employment, moreover, had

marginal news value. To be sure, insofar as Plame’s CIA

relationship may have helped explain her husband’s selection for

the Niger trip, that information could bear on her husband’s

credibility and thus contribute to public debate over the

president’s “sixteen words.” Compared to the damage of

undermining covert intelligence-gathering, however, this slight

news value cannot, in my view, justify privileging the leaker’s

identity.

Turning now to the classified material, I agree with the

special counsel that ex parte review presents no due process

difficulty. To be sure, grand jury secrecy is not absolute. As

Rule 6(e) itself provides, courts may “authorize disclosure . . .

of a grand jury matter . . . preliminarily to or in connection with

a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E). In addition,

as the reporters point out, even apart from United States v.

Dinsio, 468 F.2d 1392 (9th Cir. 1973), now superceded by

United States v. Mara, 410 U.S. 19 (1973), see majority op. at

19 (citing In re Braughton, 520 F.2d 765, 767 (9th Cir. 1975)),

the Second and Ninth Circuits have held that due process

requires an “uninhibited adversary hearing” in civil contempt

proceedings, see United States v. Alter, 482 F.2d 1016, 1024

(9th Cir. 1973) (internal quotation marks omitted); In the Matter

of Kitchen, 706 F.2d 1266, 1272 (2d Cir. 1983) (internal

quotation marks omitted), including “the right to confront all the

government’s evidence, both documentary and testimonial,

unless particular and compelling reasons peculiar to the grand

jury function require some curtailment of [that] right,” Kitchen,

706 F.2d at 1272.

In this circuit, however, we have approved the use of “in

camera, ex parte proceedings to determine the propriety of a

30

grand jury subpoena or the existence of a crime-fraud exception

to the attorney-client privilege when such proceedings are

necessary to ensure the secrecy of ongoing grand jury

proceedings.” In re Sealed Case No. 98-3077, 151 F.3d 1059,

1075 (D.C. Cir. 1998) (per curiam). Just as due process poses

no barrier to forcing an attorney to testify based on the court’s

examination of evidence, unseen by the lawyer, that the client

sought legal advice in pursuit of a crime, neither does it preclude

compulsion of a reporter’s testimony based on a comparable

review of evidence, likewise unseen by the reporter, that a

source engaged in a harmful leak. In fact, appellants’ protests

notwithstanding, ex parte review protects their interests, as it

allows the government to present—and the court to demand—a

far more extensive showing than would otherwise be possible

given the need for grand jury secrecy discussed in the court’s

opinion, see majority op. at 17-18.

That said, without benefit of the adversarial process, we

must take care to ensure that the special counsel has met his

burden of demonstrating that the information is both critical and

unobtainable from any other source. Having carefully

scrutinized his voluminous classified filings, I believe that he

has.

With respect to Miller, the special counsel seeks evidence

regarding two exchanges with I. Lewis “Scooter” Libby, Vice

President Cheney’s Chief of Staff and National Security

Adviser: first, an in-person meeting in Washington, D.C. on

July 8, 2003, and second, a telephone conversation on July 12,

2003. Before the grand jury, Libby testified that although he

had previously learned about Wilson’s wife’s employment, he

had forgotten it by July 8 and recalled no discussion of Wilson

during his meeting with Miller. (I-105, 134-35, 279.) As to the

July 12 conversation, Libby stated, “I said to her that, that I

didn’t know if it was true, but that reporters had told us that the

ambassador’s wife works at the CIA, that I didn’t know

31

anything about it.” (I-208.) Because other testimony and

evidence raises doubts about Libby’s claims, the special counsel

believes Miller’s testimony is “essential to determining whether

Libby is guilty of crimes, including perjury, false statements and

the improper disclosure of national defense information.”

(8/27/04 Aff. at 28; see also id. at 1-2.)

The special counsel’s argument is persuasive. As Libby

admits, in mid-June 2003, when reports first appeared about the

Niger trip, the vice president informed Libby “in an off sort of

curiosity sort of fashion” that the Niger envoy’s wife worked at

the CIA’s counterproliferation division. (I-50-55, 245-46.) In

addition, handwritten notes by Libby’s CIA briefer indicate that

Libby referred to “Joe Wilson” and “Valerie Wilson” in a

conversation on June 14. (8/27/04 Aff. at 12.) Nevertheless,

Libby maintains that he believed he was learning about Wilson’s

wife’s identity for the first time when he spoke with NBC

Washington Bureau Chief Tim Russert on July 10 or 11

regarding coverage of the Niger issue by MSNBC correspondent

Chris Matthews. (I-162-69; 8/27/04 Aff. at 9-10.) According to

Libby, Russert told him, “[D]id you know that Ambassador

Wilson’s wife works at the CIA? . . . [A]ll the reporters know

it.” (I-166.) Claiming to have been “a little taken aback by

that,” Libby testified, “I said, no, I don’t know that intentionally

because I didn’t want him to take anything I was saying as in

any way confirming what he said, because at that point in time

I did not recall that I had ever known, and I thought this is

something that he was telling me that I was first learning.” (I-

166.)

Russert recalls this conversation very differently. In his

deposition, describing Plame’s employment as a fact that would

have been “[v]ery” significant to him—one he would have

discussed with NBC management and potentially sought to

broadcast—Russert stated, “I have no recollection of knowing

that [Wilson’s wife worked at the CIA], so it was impossible for

32

me to have [told Libby] that.” (I-43, 32.) Asked to describe his

“reaction” to Novak’s July 14 column, Russert said, “Wow.

When I read that—it was the first time I knew who Joe Wilson’s

wife was and that she was a CIA operative. . . . [I]t was news to

me.” (I-433.)

Also contrary to Libby’s testimony, it appears that Libby

discussed Plame’s employment on several occasions before July

10. (See 8/27/04 Aff. at 11-12.) For example, then-White

House Press Secretary Ari Fleischer recalls that over lunch on

July 7, the day before Libby’s meeting with Miller, Libby told

him, “[T]he Vice-President did not send Ambassador Wilson to

Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e

was sent by his wife. . . . [S]he works in . . . the

Counterproliferation area of the CIA.” (II-545-47.) Describing

the lunch as “kind of weird” (II-590-91), and noting that Libby

typically “operated in a very closed-lip fashion” (II-592),

Fleischer recalled that Libby “added something along the lines

of, you know, this is hush-hush, nobody knows about this. This

is on the q.t.” (II-546-47.) Though Libby remembers the lunch

meeting, and even says he thanked Fleischer for making a

statement about the Niger issue, he denies discussing Wilson’s

wife. (I-108-09, 156, 226-27.)

As to the July 12 conversation, Libby testified that while

flying back from an event in Norfolk on Air Force Two, Vice

President Cheney dictated several statements relating to the

sixteen words controversy, some to be given to reporters on-the-

record, others on background and deep background. (I-193-

201.) After landing, Libby called several journalists, including

Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom

he reached first, asked him why Wilson claimed Cheney had

ordered the trip, to which Libby responded, “[Y]ou know, off-

the-record, reporters are telling us that Ambassador Wilson’s

wife works at the CIA and I don’t know if it’s true. . . . [W]e

don’t know Mr. Wilson, we didn’t know anything about his

33

mission, so I don’t know if it’s true. But if it’s true, it may

explain how he knows some people at the Agency and maybe he

got some bad skinny, you know, some bad information.” (I-

203-06.) According to Libby, Miller, too, said something that

“triggered” him to mention that “reporters had told us that the

ambassador’s wife works at the CIA.” (I-207-09.)

In contrast, in a deposition limited to Cooper’s contacts

with Libby (see II-32-33, 107), Cooper said that he (Cooper)

asked Libby “something along the lines of what do you know

about Wilson’s wife being involved in, you know, sending him

on this mission?” (II-53.) According to Cooper, Libby

responded, “[Y]eah, I’ve heard that too” (II-54), which Cooper

took as confirmation (II-81-91). Also, though Libby now claims

not to remember Cheney telling him to discuss Plame’s

employment, he told the FBI during a preliminary interview that

it was “possible” that he received such instructions. (I-201,

391.) Perhaps indicating the issue was on Cheney’s mind, the

vice president’s copy of Wilson’s op-ed, which Cheney cut out

and kept on his desk, carries the following handwritten note:

“[H]ad they done this sort of thing before[,] send an

ambassador to answer a question? [D]o we ordinarily send

people out pro bono to work for us? [O]r did his wife send him

on a junket?” (I-308-12.)

Given the evidence contradicting Libby’s testimony, the

special counsel appears already to have at least circumstantial

grounds for a perjury charge, if nothing else. Miller’s

testimony, however, could settle the matter. If Libby mentioned

Plame during the July 8 meeting—and Miller’s responses to the

documentary subpoena suggest she has notes from that

conversation (see 8/27/04 Aff. at 19-20)—then Libby’s version

of events would be demonstrably false, since the conversation

occurred before he spoke to Russert. Even if he first mentioned

Plame on July 12, as he claims, inconsistencies between his

recollection and Miller’s could reinforce suspicions of perjury.

34

What’s more, if Libby mentioned Plame’s covert status in either

conversation, charges under the Intelligence Identities Protection

Act, 50 U.S.C. § 421, currently off the table for lack of evidence

(see 8/27/04 Aff. at 28 & n.15), might become viable. Thus,

because Miller may provide key corroboration or contradiction

of Libby’s claims—evidence obviously available from no other

source—the special counsel has made a compelling showing that

the subpoenas directed at Miller are vital to an accurate

assessment of Libby’s conduct.

Regarding Cooper, the special counsel has demonstrated

that his testimony is essential to charging decisions regarding

White House adviser Karl Rove. (See 9/27/04 Aff. at 22-23).

Although uncontradicted testimony indicates that Novak first

learned Wilson’s wife’s place of employment during a meeting

on July 8 with Deputy Secretary of State Richard Armitage (see

8/27/04 Aff. at 18), Novak said in grand jury testimony that he

confirmed Plame’s employment with Rove (II-153-54), a

longstanding source for his columns (II-121-22). According to

Novak, when he “brought up” Wilson’s wife, “Mr. Rove said,

oh, you know about that too” (II-154) and promised to seek

declassification of portions of a CIA report regarding the Niger

trip, which Rove said “wasn’t an impressive piece of work or a

very definitive piece of work” (II-158). In an October 2003

column describing his sources, Novak identified Armitage’s

comment as an “offhand revelation” from “a senior

administration official” who was “no partisan gunslinger.” (II-

20.) He referred to Rove simply as “another official” who said,

“Oh, you know about it.” (II-20, 209-11.)

Upon reading Novak’s October column, Armitage

recognized himself as Novak’s source and, as he told the grand

jury, “went ballistic.” (II-859-60.) He contacted Secretary of

State Colin Powell to offer his resignation (II-862-64) and spoke

the next day with FBI and Justice Department officials

investigating the leak (II-878-79). “I was very unhappy at

35

myself,” Armitage testified, “because I had let the President

down, I’d let the Secretary down, and frankly, I’d let

Ambassador and Mrs. Wilson down. In my view inadvertently,

but that’s for others to judge.” (II-860.)

* * * * *[REDACTED] * * * *

36

37

In any event, as with the Miller subpoenas, the

evidence sought from Cooper appears essential to accurate

understanding of events and could obviously provide

information unavailable elsewhere. Thus, again, the special

counsel has shown that this evidence is crucial to accurate

decision-making by the grand jury.

38

As to the leaks’ harmfulness, although the record omits

specifics about Plame’s work, it appears to confirm, as alleged

in the public record and reported in the press, that she worked

for the CIA in some unusual capacity relating to

counterproliferation. Addressing deficiencies of proof regarding

the Intelligence Identities Protection Act, the special counsel

refers to Plame as “a person whose identity the CIA was making

specific efforts to conceal and who had carried out covert work

overseas within the last 5 years”—representations I trust the

special counsel would not make without support. (8/27/04 Aff.

at 28 n.15.) In addition, Libby said that Plame worked in the

CIA’s counterproliferation division (I-53-55, 245-46), and

Armitage’s testimony identifies a document referring to Plame

as a “WMD managerial-type,” wording Armitage considered

“strange,” though he “assumed she was another analyst” (II-

783-84, 809, 815-16). Most telling of all, Harlow, the CIA

spokesperson, though confirming Plame’s employment, asked

Novak to withhold her name, stating that “although it is very

unlikely that she will ever be on another overseas mission . . . it

might be embarrassing if she goes on foreign travel on her own”

(II-168-69), a statement that strongly implies Plame was covert

at least at some point. While another case might require more

specific evidence that a leak harmed national security, this

showing suffices here, given the information’s extremely slight

news value and the lack of any serious dispute regarding

Plame’s employment.

Finally, while it is true that on the current record the special

counsel’s strongest charges are for perjury and false statements

rather than security-related crimes, that fact does not alter the

privilege analysis. Insofar as false testimony may have impaired

the special counsel’s identification of culprits, perjury in this

context is itself a crime with national security implications.

What’s more, because the charges contemplated here relate to

false denials of responsibility for Plame’s exposure, prosecuting

perjury or false statements would be tantamount to punishing the

39

leak. Thus, given the compelling showing of need and

exhaustion, plus the sharply tilted balance between harm and

news value, the special counsel may overcome the reporters’

qualified privilege, even if his only purpose—at least at this

stage of his investigation—is to shore up perjury charges against

leading suspects such as Libby and Rove.

In sum, based on an exhaustive investigation, the special

counsel has established the need for Miller’s and Cooper’s

testimony. Thus, considering the gravity of the suspected crime

and the low value of the leaked information, no privilege bars

the subpoenas.

One last point. In concluding that no privilege applies in

this case, I have assigned no importance to the fact that neither

Cooper nor Miller, perhaps recognizing the irresponsible (and

quite possibly illegal) nature of the leaks at issue, revealed

Plame’s employment, though Cooper wrote about it after

Novak’s column appeared. Contrary to the reporters’ view, this

apparent self-restraint spares Miller and Cooper no obligation to

testify. Narrowly drawn limitations on the public’s right to

evidence, testimonial privileges apply “only where necessary to

achieve [their] purpose,” Fisher v. United States, 425 U.S. 391,

403 (1976), and in this case the privilege’s purpose is to promote

dissemination of useful information. It thus makes no difference

how these reporters responded to the information they received,

any more than it matters whether an attorney drops a client who

seeks criminal advice (communication subject to the crime-fraud

exception) or a psychotherapist seeks to dissuade homicidal

plans revealed during counseling (information Jaffee suggested

would not be privileged, see 518 U.S. at 18 n.19). In all such

cases, because the communication is unworthy of protection,

recipients’ reactions are irrelevant to whether their testimony

may be compelled in an investigation of the source.

Indeed, Cooper’s own Time.com article illustrates this

point. True, his story revealed a suspicious confluence of leaks,

40

contributing to the outcry that led to this investigation. Yet the

article had that effect precisely because the leaked

information—Plame’s covert status—lacked significant news

value. In essence, seeking protection for sources whose

nefariousness he himself exposed, Cooper asks us to protect

criminal leaks so that he can write about the crime. The greater

public interest lies in preventing the leak to begin with. Had

Cooper based his report on leaks about the leaks—say, from a

whistleblower who revealed the plot against Wilson—the

situation would be different. Because in that case the source

would not have revealed the name of a covert agent, but instead

revealed the fact that others had done so, the balance of news

value and harm would shift in favor of protecting the

whistleblower. Yet it appears Cooper relied on the Plame leaks

themselves, drawing the inference of sinister motive on his own.

Accordingly, his story itself makes the case for punishing the

leakers. While requiring Cooper to testify may discourage

future leaks, discouraging leaks of this kind is precisely what the

public interest requires.

IV.

I conclude, as I began, with the tensions at work in this

case. Here, two reporters and a news magazine, informants to

the public, seek to keep a grand jury uninformed. Representing

two equally fundamental principles—rule of law and free

speech—the special counsel and the reporters both aim to

facilitate fully informed and accurate decision-making by those

they serve: the grand jury and the electorate. To this court falls

the task of balancing the two sides’ concerns.

As James Madison explained, “[A] people who mean to be

their own Governors must arm themselves with the power which

knowledge gives.” See In re Lindsey, 148 F.3d 1100, 1109

(D.C. Cir. 1998) (quoting Letter from James Madison to W.T.

Barry (Aug. 4, 1822), in 9 The Writings of James Madison 103

41

(Gaillard Hunt ed., 1910)). Consistent with that maxim, “[a]

free press is indispensable to the workings of our democratic

society,” Associated Press v. United States, 326 U.S. 1, 28

(1945) (Frankfurter, J., concurring), and because confidential

sources are essential to the workings of the press—a practical

reality that virtually all sta

This text is long and has been trimmed here. Open the source document for the complete record.