Opposition Brief — Miller v. United States

CXC,

Nos. 04-1507 and 04-1508

Jn the Supreme Court of the Gnited States

JUDITH MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

MATTHEW COOPER AND TIME INC., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PATRICK J. FITZGERALD

Special Counsel

Counsel of Record

JAMES P. FLEISSNER

DEBRA RIGGS BONAMICI

KATHLEEN M. KEDIAN

Deputy Special Counsels

Office of Special Counsel

1400 New York Ave., N.W.

9th Floor

Washington, D.C. 20530

(202) 514-1187

QUESTION PRESENTED

Whether, if there is a qualified reporter’s privilege in

the grand jury context, as the court of appeals assumed

for purposes of resolving this case, the court of appeals

properly found that the privilege was overcome on the

facts of the case.

(I)

TABLE OF CONTENTS

Page

GET SROIIOD cisessccisentinnceensnsmnsneanntennsnsneninensnnstenesniahestnennintininetsn l

IID tisnictiisttariciinnnentennntensinenenasentenretninienneienenaeiasieinteiennnne 2

STD cecssermnssestneemesmesmmeseneesnnee sineentnetiniopnnenpensnduertataitinnatin 2

Argument .........ccccccseeee EI Ie es See TT RCO ET 10

STINE ‘ucetieclnsutabiestessbunistustsisincsntsiinienieneninienntnasieaiteniiitinianininetaneunictinsinns 29

TABLE OF AUTHORITIES

Cases:

Air Courier Conference of Am. v. Am. Postal

Workers Union, 498 U.S. 517 (1991) ........cccccccecceceseeseeees 13

Baker v. F&F Inv., 470 F.2d 778 (2d Cir. 1972) ............... 26

Bartnicki v. Vopper, 532 U.S. 514 (2001) 0... ceceecceeeeee 28

Branzburg v. Hayes, 408 U.S. 655 (1972) ..0........ccccccceceeees 5, 8,

22, 23, 24, 25, 26, 27

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ............. 22

Douglas Oil Co. v. Petrol Stops Northwest,

eS COE endirernrsnnitncsnntsennesnnnesineennsiinniataninateenerinene 19

Grand Jury Proceedings, In re, 5 F.3d 397 (9th Cir.

1993), cert. denied, 510 U.S. 1041 (1994) 2... eee 26

Grand Jury Proceedings, In re, Storer Communi-

cations, 810 F.2d 580 (6th Cir. 1987) ...........cccccceceeceeeseseeee 26

Greene v. McElroy, 360 U.S. 474 (1959) .......c.cccccccceseseseeee i7

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) ..0.00............. 18

Herb v. Pitcairn, 324 U.S. 117 (1945) ..............ccscecssceceseseees 14

International Union, UMWA v. Bagwell, 512 US.

FS CRIED cccensessssenemcsecanastnnenensnnsenasendnsnnecbasteatnnsnessentecnensauneneenes 18

Jaffe v. Redmond, 518 U.S. 1 (1996) .........ccccccsesseseseseees 13, 14

Kitchen, In re, 706 F.2d 1266 (2d Cir. 1983) .................0. 20, 21

Letellier, In re, 578 A.2d 722 (Me. 1990) ............ccccceecsseceeeses 28

New York Times v. Gonzales, No. 04 Civ. 7677 (RWS)

2005 WL 427911 (S.D.N.Y. Mar. 2, 2005) ..............cccceseseeee 21

Oliver, Im re, 333 U.S. 257 (1948) ...........ccc.cscscssscsserecececeseseses 17

Petroleum Prods. Antitrust Litig., In re, 608 F.2d 5

(2d Cir.), cert. denied, 459 U.S. 909 (1982) .........ceeeeeeee 27

(IIT)

Cases—Continued:

Rutledge v. United States, 517 U.S. 292 (1996) ................

Saxbe v. Washington Post, 417 U.S. 843

COED scenniesisiisrigistiiiiniitaiiaeealieiiiiabiniiaiak

Sealed Case No. 98-3077, In re, 151 F.3d 1059 (D.C.

Cir. 1998) ..... _

Special Proceedings, In re, 373 F.3d 37 (1st Cir.

TTT nceneseiiiittnceiiariisihiiattinmeiiib atts aciibiciiiahibiaine

Tunis Bros. Co., Inc. v. Ford Motor Co.,

poe Gf ee

Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) .............

United States v. Alter, 482 F.2d 1016 (9th Cir.

SITE cecnnnunnsensssncsnsenenynsssnsiensnnnntateensannenniianetmiatinenbanagenicnesingeinetnne

United States v. Dionisio, 410 U.S. 1 (1978) ........ececeseeee

United States v. Mara, 410 U.S. 19 (1973) ..........cccccssseeeee

United States v. Procter & Gamble Co., 356 U.S.

677 (1958) .........

United States v. R. Enterprises, Inc., 498 U.S.

292 (1991) ....

University of Pa. v. EEOC, 498 U.S. 182 (1990) ..............

Williams, In re, 766 F. Supp. 358 (W.D. Pa. 1991),

aff’d by an equally divided court, 963 F.2d 567

(3d Cir. 1992)

Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) .............

Zurcher v. Standford Daily, 436 U.S. 547 (1978) ............

Constitution, statute, regulation and rules:

Ci CHAIR: RATES ectciciinaiinisereintnstnntiiniiidibimnibiinnainatianianin

D.C. Code § 16-4701 et seq.

28 C.F.R. 50.10

Fed. R. Evid. 501 .......

Sup. Ct. R. 10

Miscellaneous: Page

Stephen Bates, The Reporter’s Privilege, Then and

Now (Research Paper R-23) (Apr. 2000) <http://www.

ksg.harvard.edu/presspol/Research_Publications/

Papers/Research_Papers/R23.pdf> .0........sceccesssssssssessseeoses 25

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

(July 17, 2003) <http://www.time.com/time/nation/

article/),8599,465270,00.AtmI> ou... .cecceccessesssessccsessesseesseseees 3

Kathryn M. Kase, Note, When a Promise is Not a

Promise: The Legal Consequences for Journalists

Who Break Promises of Confidentiality to Sources,

12 Hastings Comm. & Ent. L.J. 565 (1990) ceccccccccosccssoseees

Monica Langley & Lee Levine, Broken Promises,

Col. Journalism Rev., July-Aug. 1998 .......ccccccsccscssssesssessee. 25

S

Jn the Supreme Court of the United States

No. 04-1507

| JUDITH MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

No. 04-1508

MATTHEW COOPER AND TIME INC., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Miller Pet. App.

la-77a; Cooper Pet. App. la-85a) is reported at 397 F.3d

- 964. The opinions of the district court denying petition-

ers’ motions to quash (Miller Pet. App. 8la-86a, 87a-97a;

Cooper Pet. App. 86a-97a, 101a-107a, 111a-115a) are re-

ported at 332 F. Supp. 2d 26, 338 F. Supp. 2d 16, and

346 F. Supp. 2d 54. The orders of the district court

holding petitioners in civil contempt (Miller Pet. App.

78a-79a; Cooper Pet. App. 108a-110a) are unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

February 15, 2005. A petition for rehearing was denied

on April 19, 2005 (Miller App. 98a-103a; Cooper Pet.

App. 116a-122a). The petition for a writ of certiorari in

No. 04-1507 was filed on May 9, 2005, and the petition

for a writ of certiorari in No. 04-1508 was filed on May

10, 2005. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

1. During the spring and summer of 2003, a contro-

versy arose concerning a statement made by President

George W. Bush during the State of the Union address

delivered on January 28, 2003. Miller Pet. App. 3a. In

that address, President Bush stated: “The British gov-

ernment has learned that Saddam Hussein recently

sought significant quantities of uranium from Africa.”

Ibid.

The accuracy of this statement, later colloquially re-

ferred to as the “16 words,” was called into question by

a series of articles, including an op-ed piece by Joseph

C. Wilson IV, a retired career State Department offi-

cial, which was published in the New York Times on

July 6, 2003. Miller Pet. App. 3a, 183a-187a. In the op-

ed piece, Wilson asserted that he had taken a trip to

Niger in 2002 at the request of the Central Intelligence

Agency (CIA) to investigate a report that Iraq had

sought or obtained uranium from Niger, and that he

had reported to the CIA upon his return his conclusion

that it was “highly doubtful that any such transaction

had ever taken place.” Jd. at 183a-184a. Wilson as-

serted that “some of the intelligence related to Iraq’s

nuclear weapons program was twisted to exaggerate

the Iraqi threat.” Jd. at 183a.

3

Eight days later, on July 14, 2003, syndicated colum-

nist Robert Novak published a column in the Chicago

Sun-Times in which he asserted that “two senior ad-

ministration officials” told him that Wilson had been

selected for the Niger trip at the suggestion of Wilson’s

wife, whom Novak described as a CIA “operative on

weapons of mass destruction.” Miller Pet. App. 188a-

189a.

After Novak’s column was published, it was reported

that other reporters had been told by government offi-

cials that Wilson’s wife worked at the CIA monitoring

weapons of mass destruction, and that she was involved

in her husband’s being sent to Africa. Miller Pet. App.

4a. Among the articles that related this information

was an article contributed to by Matthew Cooper and

published by Time.com on July 17, 2003, and later in

print. /bid. The 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 destruc-

tion * * * [and] have suggested that she was involved

in her husband’s being dispatched to Niger to investi-

gate 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

(July 17, 2003), available at http://wwwtime.com/time/

nation/article/0,8599,465270,00.html. In addition, on

September 28, 2003, the Washington Post reported

that, in the July 2003 time frame, “two top White House

officials called at least six Washington journalists and

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

Miller Pet. App. 4a.

2. In the fall of 2003, the government began an in-

vestigation into whether federal law had been violated

in connection with the unauthorized disclosure by gov-

4

ernment employees of information concerning the iden-

tity of a purported CIA employee. Miller Pet. App. 4a.

In late December 2003, the Attorney General recused

himself from the investigation, and delegated his

authority in connection with the investigation to Dep-

uty Attorney General James B. Comey as Acting At-

torney General. /d. at 4a, 192a-193a. Deputy Attorney

General Comey, in turn, appointed Patrick J. Fitz-

gerald, United States Attorney for the Northern Dis-

trict of Illinois, as Special Counsel, and delegated full

authority concerning the investigation to him. I[bid.

The grand jury investigation began in January 2004.

Id. at 4a.

During the period January through May 2004, the

grand jury conducted an extensive investigation.

Miller Pet. App. 5a. Beginning in May 2004, it was de-

termined that it was necessary to obtain testimony and

documents from a limited number of reporters, includ-

ing Matthew Cooper of Time Inc. (Time), and Judith

Miller of the New York Times, in connection with the

investigation. Gov’t C.A. Br. 3, 7-8, 10. In accordance

with Department of Justice guidelines on the issuance

of subpoenas to members of the news media, 28 C.F .R.

50.10, the Special Counsel first sought Cooper’s and

Miller’s voluntary cooperation. However, the reporters

refused to provide the requested information voluntar-

ily. Gov't C.A. Br. 3.

3. a. On May 21, 2004, a grand jury subpoena was is-

sued to Matthew Cooper seeking testimony and docu-

ments related to articles published on July 17, 2003 and

July 21, 2003 to which he had contributed. Miller Pet.

App. 5a. 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.

5

Ibid. On June 3, 2004, Cooper moved to quash the sub-

poena. /bid. In response, the government argued that

the law did not support the application of a reporter’s

privilege in the context of a good faith grand jury in-

vestigation and that, even if the court were to apply a

qualified privilege, compliance with the subpoena would

be required. Gov’t C.A. Br. 4. Although the govern-

ment took the position that it was not legally required

to make any factual showing prior to demanding com-

pliance with the subpoenas, in order to assure the dis-

trict court that the subpoenas were appropriate, the

government submitted, ex parte and under seal, de-

tailed summaries of evidence gathered during the

course of the investigation, with specific references to

grand jury witness testimony, and materials identified

as “classified.” bid.

On July 6, 2004, the district court denied Cooper’s

motion and, on July 20, 2004, it issued a written opinion

and order. Miller Pet. App. 87a.’ In the July 20, 2004

opinion, the district court concluded that this Court, ir

Branzburg v. Hayes, 408 U.S. 665 (1972), had rejected

any reporter’s privilege rooted in the First Amendment

or common law in the context of a grand jury acting in

good faith (Miller Pet. App. 90a), and that, even were

the court to determine that the reporters did possess a

qualified privilege, the Special Counsel’s ex parte evi-

dentiary submission “would be able to meet even the

most stringent of balancing tests” (id. at 96a). In addi-

tion, the distriet court held that, while it was not con-

vinced that the Department of Justice guidelines

1 Cooper’s motion was decided with a motion to quash filed by

NBC correspondent Tim Russert. Miller Pet. App. 87a. Russert

elected to comply with the subpoena directed to him after his mo-

tion to quash was denied.

6

“vested any right” in the reporters, the guidelines were

“fully satisfied” by the facts presented by the Special

Counsel. bid.

A subpoena was issued to Time for the same docu-

ments requested from Cooper. Miller Pet. App. 5a.

Time moved to quash the subpoena, and its motion was

denied on August 6, 2004. Jbid.

Despite the denial of their motions to quash, Cooper

and Time refused to comply with the subpoenas. Miller

Pet. App. 5a. On August 9, 2004, after a hearing, the

district court found that Cooper and Time had refused

to comply with the subpoenas without just cause, and

held them in civil contempt of court. Cooper Pet. App.

98a.

After being held in contempt, and after filing notices

of appeal, Cooper and Time agreed to comply with the

subpoenas, as limited by the Special Counsel, with the

Special Counsel explicitly reserving the right to seek

additional testimony and documents from Cooper and

Time, if necessary. Miller Pet. App. 5a. Cooper indi-

cated that his rationale for agreeing to provide testi-

mony and documents pursuant to this agreement was

the fact that the source had stated that he had no objec-

tion. /bid. After Cooper and Time fulfilled their obliga-

tions under the agreement, the district court’s con-

tempt order was vacated, and Cooper’s and Time’s no-

tices of appeal were voluntarily dismissed. /bid.

b. On September 13, 2004, the grand jury issued a

second set of subpoenas to Cooper and Time seeking

testimony and decuments relating to “conversations be-

tween Matthew Cooper and official source(s) prior to

July 14, 2003, concerning in any way: former Ambassa-

dor 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 Ambas-

7

sador Wilson); and/or any affiliation between Valerie

Wilson Plame and the CIA.” Miller Pet. App. 5a-6a.

Cooper and Time moved to quash these subpoenas

and, on October 7, 2004, after briefing and a hearing,

the district court denied their motions. Cooper Pet.

App. 108a. In a memorandum opinion dated November

10, 2004, the district court relied on the grounds stated

in the court’s July 20, 2004 opinion, and on the addi-

. tional ground that the new subpoenas “stem[med] from

legitimate needs due to an unanticipated shift in the

grand jury’s investigation,” were not issued in an at-

tempt to harass, and thus were not unreasonable or op-

pressive. /d. at 1lla-115a. On October 13, 2004, after a

hearing, the district court held Cooper and Time in civil

contempt of court based on their refusal to comply with

the subpoenas. /d. at 108a-110a.

4. On August 12 and August 20, 2004, grand jury

subpoenas were issued to reporter Judith Miller and

the New York Times, seeking documents and testimony

related to conversations between Miller and a specified

government official occurring between on or about July

6, 2003 and on or about July 13, 2003, “concerning Vale-

rie Plame Wilson,” whether referred to by name or by

description, “concerning Iraqi efforts to obtain ura-

nium.” Miller Pet. App. 115a-119a. Miller refused to

comply with the subpoenas and, instead, moved to

quash them on the same grounds previously asserted

by Cooper and Time. /d. at 6a. The New York Times

indicated that it was in possession of no documents re-

sponsive to the subpoena. Gov’t C.A. Br. 10.

After briefing and a hearing, the district court denied

Miller’s motion to quash, on the grounds set forth in its

July 20, 2004 opinion. Miller Pet. App. 80a-86a. Like

Cooper and Time, Miller persisted in refusing to comply

with the subpoenas, and the district court therefore

ee ee RT ee ee ee a ee ee ee ee

8

held her in civil contempt of court as well. Jd. at 78a-

79a.

5. Cooper, Time and Miller brought a consolidated

appeal to the United States Court of Appeals for the

District of Columbia Circuit. On February 15, 2005, a

panel of the court of appeals affirmed the orders of the

district court, with all three members of the panel vot-

ing to affirm. Miller Pet. App. la-77a.

The panel was unanimous in its rejection of petition-

ers’ claimed First Amendment privilege in the grand

jury context. In the opinion for the court authored by

Judge Sentelle, the panel thoroughly analyzed Branz-

burg v. Hayes, supra, and, finding no material distinc-

tion between the facts of Branzburg and those of the

case before the court of appeals, held that Branzburg

foreclosed petitioners’ claim of protection based on a

reporter’s privilege rooted in the First Amendment.

Miller Pet. App. 7a-15a.

With respect to petitioners’ request that the court

recognize an absolute reporter’s privilege rooted in fed-

eral common law, the panel was unanimous in ruling out

the existence of such a privilege. Miller Pet. App. 15a,

76a-77a. With respect to petitioners’ alternative argu-

ment for a qualified privilege, the panel was “not of one

mind” concerning the existence of such a privilege.

Miller Pet. App. 15a. The court explained that Judge

Sentelle “would hold that there is no such common law

privilege,” that Judge Tatel “would hold that there is

such a common law privilege,” and that Judge

Henderson “believes that we need not, and therefore

should not, reach that question.” Jbid.

The panel also unanimously agreed that, using the

formulation of a qualified common law privilege sug-

gested by Judge Tatel, the privilege was overcome and,

therefore, that the district court’s decision should be

9

affirmed. Miller Pet. App. 15a, 22a, 31a, 77a. Judge

Tatel, who alone favored recognition of a common law

reporter’s privilege, applied the standard he had for-

mulated to the facts of the case and determined, after

“carefully scrutiniz[ing] [the special counsel’s] volumi-

nous classified filings,” that, “based on an exhaustive

investigation, the special counsel has established the

need for Miller’s and Cooper’s testimony,” and that,

“considering the gravity of the suspected crime and the

low value of the leaked information, no privilege bars

the subpoenas.” Miller Pet. App. 64a, 75a.

Finally, the panel unanimously rejected petitioners’

claim that the district court had improperly considered

the government’s ex parte submissions of grand jury

material, much of which was classified. Miller Pet. App.

18a. The court held that the procedure employed by

the district court was necessary to protect grand jury

secrecy, and was fully consistent with binding prece-

2 As “the controlling decision of the court,” Judge Henderson’s

concurring opinion made clear that the Court had assumed, but not

decided, that a qualified common law reporter’s privilege exists

and the “standard [that] would govern its application if it did.”

Miller Pet. App. 100a. Thus, future panels of the court were “free

to recognize any privilege (or no privilege).” Ibid.

3 Judge Tatel’s opinion described in detail the facts that led him

to conclude that the privilege had been overcome. Because that

portion of his opinion refers to classified grand jury information

from the ex parte submissions, it is redacted from the court’s pub-

lished opinion. It is our understanding that the redacted portion of

Judge Tatel’s opinion is available to this Court from the Deputy

Marshal, through the Department of Justice Litigation Security

Section Security Specialist.

OI

10

dent of the District of Columbia Circuit and this Court.

Id. at 16a-18a.*

6. By October 2004, when the appeal was filed, the

factual investigation—other than the testimony of

Miller and Cooper and any further investigation that

might result from such testimony—was for all practical

purposes complete. Gov’t C.A. Br. in Opp. to Pet. for

Rh’g 3. After the court of appeals issued its decision,

the parties agreed to a stay of its mandate, and to the

expedited filing of the certiorari petitions and briefs in

opposition thereto, in order to afford this Court the op-

portunity to consider the petitions before its summer

recess. Pet. C.A. Mot. for Stay of Mandate 1.

ARGUMENT

1. Cooper and Time contend that “[t]his Court’s

guidance is necessary to determine the existence and

scope of a reporter’s privilege.” Cooper Pet. 8. Miller

likewise contends that this Court should grant “plenary

review” to decide “(t]he scope—indeed the existence—

of a reporter’s privilege.” Miller Pet. 20. It is the gov-

ernment’s position, as stated in the court of appeals

(Gov’t C.A. Br. 33-41), that no federal common law re-

porter’s privilege should be recognized in the context of

a good faith grand jury investigation. However, the

court of appeals assumed that petitioners prevailed on

their claim that a qualified privilege exists, and as-

sumed that the privilege has the broadest possible

scope. The court merely held that any such privilege

has been overcome on the particular facts of this case.

Whether the court of appeals erred in applying the le-

gal principle advocated by petitioners to the specific

4 The court of appeals also held that the Department of Justice

guidelines, 28 C.F.R. 50.10, were not judicially enforceable. Miller

Pet. App. 18a-21a.

ll

facts of this case is not a question that warrants this

Court’s review. See Sup. Ct. R. 10.

In an attempt to surmount this difficulty, petitioners

contend that their due process rights were violated by

the procedure employed by the court of appeals in re-

viewing the facts—namely, the consideration of ex

parte materials. Miller Pet. 27-29; Cooper Pet. 27-29.

Certiorari is not warranted on that issue either. The

court of appeals correctly rejected petitioners’ due

process claim, and, as Judge Tatel correctly recognized

in his opinion concurring in the denial of rehearing en

banc (Miller Pet. App. 102a-103a), the court of appeals’

decision on that point does not conflict with any deci-

sion of this Court or any other court of appeals.

a. In reaching its unanimous holding affirming the

finding that Miller, Cooper, and Time were in contempt

of court for refusing to provide evidence to a grand

jury, the court of appeals assumed arguendo the exis-

tence of a qualified reporter’s privilege. The court then

analyzed the evidentiary submissions of the Special

Counsel, and, applying the assumed qualified privilege

to the facts, unanimously concluded that the privilege

had been overcome. Indeed, the court concluded that

the government’s affidavits and exhibits overcame even

the special version of the privilege for “leak” cases fa-

vored by Judge Tatel, which required not only show-

ings of the essentiality of the evidence sought and the

exhaustion of alternative sources, but the court’s bal-

ancing 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.” Miller Pet. App. 58a.

The portion of Judge Tatel’s opinion joined by the en-

tire panel “carefully scrutinized [the Special Counsel’s]

voluminous classified filings” and concluded that he had

12

“met his burden of demonstrating that the information

is both critical and unobtainable from any other

source.” Miller Pet. App. 66a. The opinion concluded

that the Special Counsel had not only established the

need for Miller’s and Cooper’s testimony, but had satis-

fied what Judge Tatel viewed as the appropriate bal-

ancing test for “leak” cases: “[C]Jonsidering the gravity

of the suspected crime and the low value of the leaked

information, no privilege bars the subpoenas.” /d. at

75a. Judge Tatel’s opinion concluded: “Because identi-

fying [petitioners’] sources * * * appears essential to

remedying a serious breach of public trust, I join in af-

firming the district court’s orders compelling their tes-

timony.” Jd. at 77a.

Thus, although the court of appeals was “not of one

mind on the existence of a common law privilege,” the

court was unified in concluding, “for the reasons set

forth in the separate opinion of Judge Tatel, that if such

a privilege applies here, it has been overcome.” Miller

Pet. App. 15a. As Judge Henderson’s controlling opin-

ion stated:

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 fed-

eral common-law reporter’s privilege may erect.

Id. at 3la. —

Cooper and Time call the conclusion of the court of

appeals “deeply flawed” because (they say) “it makes no

sense to deem the privilege ‘overcome’ without having

defined the privilege.” Cooper Pet. 25 n.7. This ignores

13

the fact that the court of appeals reached its holding by

assuming the existence of a reporter’s privilege the

contours of which are described in great detail in Judge

Tatel’s opinion. See Miller Pet. App. 54a-64a (Scope of

the Privilege). Indeed, as Judge Henderson observed

(id. at 35a-38a), the version of the privilege formulated

by Judge Tatel, with its balancing of the harm of the

leak against the leaked information’s value, erects a

higher hurdle for the government than the privilege

recognized by the District of Columbia Circuit in civil

cases like Zerilli v. Smith, 656 F.2d 705, 713-714 (1981),

which requires only showings of essentiality of the in-

formation and exhaustion of alternative sources. And it

was the Zerilli version of the privilege that petitioners

advocated in the court of appeals. Pet. C.A. Br. 42.°

° Petitioners also claim that the decision of the court of appeals

conflicts with this Court’s decision in Jaffee v. Redmond, 518 U.S.

1 (1996), which recognized a psychotherapist/social worker privi-

lege under Rule 501 of the Federal Rules of Evidence. Petitioners

claim that the court of appeals “simply declined to engage in the

analysis mandated by Jaffe” (Miller Pet. 26) and “misapplied Jaffe,

in declining to recognize a common law [reporter’s] privilege”

(Cooper Pet. 19). Petitioners’ contention thus appears to be that

the court of appeals was mandated by Jaffee to decide whether

there is a common law reporter’s privilege (and decide that there

is), even in a case where the court could assume the existence of

such a privilege because it did not need to reach the issue to re-

solve the case before it. Petitioners’ contention is without merit.

Judge Henderson correctly concluded that the “doctrine of judicial

restraint provides a fully adequate justification for deciding [the]

case on the best and narrowest ground available.” Miller Pet. App.

32a n.1. (quoting Air Courier Conference of Am. v. American

Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., con-

curring in the judgment). In any event, in light of the court of ap-

peals’ conclusion that any privilege is overcome on the facts of this

case, petitioners would be in the same position even if the court

had explicitly recognized the privilege. This Court sits “to correct

14

b. In light of the court of appeals’ decision, petition-

ers could prevail in this Court only if (1) there is an ab-

solute reporter’s privilege; (2) there is a qualified re-

porter’s privilege broader in scope than that assumed

to exist by the court of appeals; (3) the assumed quali-

fied reporter’s privilege was not overcome on the facts

of this case; or (4) the court of appeals applied an im-

preper procedure in deciding that the assumed qualified

privilege was overcome. Petitioners do not make any of

the first three arguments, and even if they did, none

would provide a basis for certiorari.

In the court of appeals, in their joint reply brief and

at oral argument, petitioners clarified that they were

advocating (in the alternative) that the court create an

absolute reporter’s privilege protecting confidential

sources. Pet. C.A. Reply Br. 15 n.7. The court of ap-

peals unanimcusly rejected that argument: “[AJll be-

lieve that if there is any such privilege, it is not absolute

and may be overcome by an appropriate showing.”

Miller Pet. App. 15a. Judge Tatel, the only member of

the panel who favored adoption of a qualified privilege

based on the approach outlined in Jaffee v. Redmond,

518 U.S. 1 (1996), concluded that an absolute privilege

would not be in the public interest:

Leaks similar to the crime suspected here (exposure

of a covert agent) apparently caused the deaths of

several 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 mili-

tary strike—could be even more damaging. causing

wrong judgments, not to revise opinions.” Herb v. Pitcairn, 324

U.S. 117, 126 (1945).

15

harm far in excess of their news value. In such

cases, the reporter’s 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.

Miller App. 56a.

Petitioners do not advocate an absolute reporter’s

privilege in this Court, nor could they persuasively do

so. While a very small number of jurisdictions have

adopted statutory reporter’s privileges that appear, on

their face, to give absolute protection to confidential

sources, see, ¢.g., D.C. Code § 16-4701 et seq., local ju-

risdictions do not have responsibility for investigating

crimes implicating national security, and reason and

experience strongly counsel against adoption of an ab-

solute reporter’s privilege in the federal courts. In any

event, no court has recognized an absolute reporter’s

privilege as a matter of federal common law.

As for the possibility of a qualified privilege broader

than the version of the privilege that the court of ap-

peals assumed to exist, petitioners did not suggest the

existence of such a privilege in the lower courts, and

they do not do so in this Court. Indeed, in the lower

courts, petitioners advocated a narrower version of the

qualified privilege than the one assumed to exist by the

court of appeals, and it is hard to conceive of a broader

version.

Nor do petitioners argue that, in holding that any

qualified privilege has been overcome, the court of ap-

16

peals relied on erroneous factual findings or misapplied

the assumed privilege to the facts of this case. In any

event, this Court does not grant certiorari to review

factual findings or decide whether a legal standard was

correctly applied to the facts of a particular case.

ce. Petitioners do argue that the lower courts em-

ployed an improper procedure in applying the assumed

qualified privilege to the facts of the case—namely, the

consideration of ex parte submissions that contained a

detailed description of much of the evidence previously

gathered by the grand jury. Miller Pet. 27-28; Cooper

Pet. 27-29. Petitioners contend that they were entitled

to uecess to the submissions as a matter of due process.

That contention is without merit.

i. Applying the assumed qualified privilege to the

facts necessitated an evaluation by the lower courts of

information concerning the full scope and breadth of the

ongoing grand jury investigation. Although the gov-

ernment took the position that it was not legally re-

quired to do so, it provided the district court with a de-

tailed description of the progress of the investigation,

including extensive references to sensitive and classi-

fied grand jury information, such as the identities of

witnesses, the substance of grand jury testimony, and

the strategy or direction of the investigation. As the

court of appeals correctly determined, the consideration

of ex parte submissions was uniquely appropriate in

that it “ensure[d] the secrecy of ongoing grand jury

proceedings,” Miller Pet. App. 18a (quoting Jn re Sealed

Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998)

(per curiam)), and at the same time permitted the court

to consider “a detailed showing by the government that

it has satisfied the criteria for overcoming the privi-

lege,” id. at 101a (Tatel, J., concurring in denial of re-

hearing en banc). In the latter respect, as Judge Tatel

17

observed, “far from violating due process,” considera-

tion of ex parte materials “affords a critical protection

to journalists.” Jbid.

The court of appeals also correctly rejected petition-

ers’ suggested alternative procedures, such as disclo-

sures to their counsel. Such procedures would have

provided insufficient protection for grand jury secrecy,

and would have inappropriately “engage[d] the district

court and the prosecutor in lengthy collateral proceed-

ings and in so doing divert{ed] the grand jury from its

investigation.” See Jn re Sealed Case No. 98-3077, 151

F.3d at 1072. In any event, the mere existence of alter-

native procedures is insufficient to establish that peti-

tioners’ rights were not fully protected by the lower

courts’ careful scrutiny of detailed ex parte submissions,

or that the court of appeals erred in ruling that the dis-

trict court did not abuse its discretion in accepting ex

parte submissions. Miller Pet. App. 18a, Géa, 101a.

ii. Contrary to petitioners’ contention (Miller Pet.

28; Cooper Pet. 27-28), the lower courts’ consideration

of the ex parte materials was not barred by any decision

of this Court. As Judge Tatel noted in his opinion con-

curring in the denial of rehearing en banc (Miller Pet.

App. 102a-103a), the cases relied upon by petitioners

involve situations far removed from the compulsion of

grand jury testimony due to the rejection of a claim of

privilege. See Jn re Oliver, 333 U.S. 257 (1948) (sum-

mary contempt proceeding arising from finding that a

witness had testified evasively or falsely before judge

sitting as “one-man grand jury,” in which the witness

had no right te the assistance of counsel, no time to

prepare a defense, and no right to call witnesses or

cross-examine the single witness against whose testi-

mony the witness’s testimony was being measured);

Greene v. McElroy, 360 U.S. 474 (1959) (denial of ac-

18

cess, in challenge to revocation of contractor’s security

clearance, to information upon which revocation was

based); Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) (plu-

rality opinion) (challenge to American citizen’s classifi-

cation and detention as an “enemy combatant” for a pe-

riod of more than two and one half years without

meaningful opportunity to contest detention).

Although this Court held that the litigants in each of

those cases were entitled to examine and challenge the

evidence against them, the disputed evidence in each

case was limited and related to the litigant’s own con-

duct. Moreover, in those cases, the potential conse-

quences of the litigant’s conduct was the central issue in

the case before the Court. In this case, petitioners

faced a coercive penalty of civil contempt because they

refused to obey a lawful order to give evidence, rather

than a penalty for past actions. The evidence contained

in the ex parte submissions related to the government’s

conduct of the grand jury investigation. As Judge Tatel

commented, “(t]o avoid incarceration, [petitioners] need

not persuade the district judge that any accusation

against them is false; they need only abandon their un-

lawful resistance and testify before the grand jury.”

Miller Pet. App. 102a-108a (citing International Union,

UMWA v. Bagwell, 512 U.S. 821, 828 (1994)). No case

holds that a recalcitrant grand jury witness may not be

held in contempt unless he or she first is provided with

disclosure of all the other evidence gathered by the

grand jury to date.

In fact, the procedure employed by the lower courts

is fully consistent with, and supported by, this Court’s

decisions. As Judge Tatel noted (Miller Pet. App. 103a),

this Court approved the use of ex parte proceedings to

determine the reasonableness and enforceability of

grand jury subpoenas in United States v. R. Enter-

19

prises, Inc., 498 U.S. 292 (1991). Although the wit-

nesses could have been exposed to coercive measures

upon a denial of their motion to quash, this Court ob-

served that, “to ensure that subpoenas are not rou-

tinely challenged as a form of discovery, a district court

may require that the Government reveal the subject of

the investigation to the trial court in camera, so that

the court may determine whether the motion to quash

has a reasonable prospect for success before it discloses

the subject matter to the challenging party.” Jd. at 302.

This Court also has made clear in other contexts that

recalcitrant grand jury witnesses are not entitled to ex-

tensive discovery. See, e.g., United States v. Dionisio,

410 U.S. 1, 16-17 (1978) (holding grand jury witness not

entitled to showing of reasonableness before being

compelled to give voice exemplar, and stating “[a]ny

holding would saddle a grand jury with minitrials and

preliminary showings would assuredly impede its in-

vestigation and frustrate the public’s interest in the fair

and expeditious administration of the criminal laws”);

United States v. Mara, 410 U.S. 19, 22 (1973) (no show-

ing necessary to obtain handwriting exemplars from

grand jury witness).

Moreover, as the lower courts found, the use of ex

parte submissions was necessary to protect the secrecy

of an ongoing grand jury investigation, and therefore

was fully consistent with this Court’s numerous deci-

sions that emphasize that “the proper functioning of our

grand jury system depends upon the secrecy of grand

jury proceedings.” Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211, 218-219 (1979). See also

United States v. Procter & Gamble Co., 356 U.S. 677

(1958). As Judge Tatel correctly noted:

20

Telling one grand jury witness what another has

said not only risks tainting the later testimony (not

to mention enabling perjury or collusion), but may

also embarrass or even endanger witnesses, as well

as tarnish the reputations of suspects whom the

grand jury ultimately declines to indict. Strong

guarantees of secrecy are therefore critical if grand

juries are to obtain the candid testimony essential to

ferreting out the truth.

Miller Pet. App. 101a-102a.

iii. Petitioners are also mistaken in their-contention

(Miller Pet. 27-28; Cooper Pet. 28-29) that the court of

appeals’ decision conflicts with decisions of the Second

and Ninth Circuits. As Judge Tatel correctly noted in

his opinion concurring in the denial of rehearing en

banc, the cases relied upon by petitioners involved

situations that do not “remotely resemble[]” the situa-

tion here. Miller Pet. App. 102a. See In re Kitchen, 706

F.2d 1266 (2d Cir. 1983) (holding that witness whose

claimed memory loss was challenged in a contempt pro-

ceeding based on the testimony of a second witness was

entitled to examine and confront the testimony of the

second witness); United States v. Alter, 482 F.2d 1016

(9th Cir. 1973) (ordering evidentiary hearing concern-

ing a grand jury witness’s refusal to testify based on

alleged illegal surveillance and alleged inadequacy of

immunity). Neither case involved a refusal to testify

based on a claimed testimonial privilege,® and neither

6 Indeed, the witness in Kitchen did not refuse to testify at all,

but rather claimed not to remember details regarding which he

was questioned. As Judge Tatel noted, the situation in Kitchen

was “more akin to punishment for perjury than evaluation of a

privilege claim,” and the court in Kitchen recognized the “need for

‘heightened’ procedural protection ‘[w]hen a case is in the grey

21

involved a demand for-access to grand jury materials

nearly as broad as the demand made by petitioners in

this case.’

d. Even if the court of appeals had endorsed the

Special Counsel’s position that there is no reporter’s

privilege rooted in federal common law in the context of

a good faith grand jury investigation, review by this

Court would still be unwarranted, because, contrary to

petitioners’ contention (Miller Pet. 21-26; Cooper Pet:

14-16), there is no circuit conflict on that issue. No

court of appeals has recognized a federal common law

reporter’s privilege in the grand jury context. Peti-

tioners rely (Miller Pet. 26; Cooper Pet. 15) on In re

Williams, 766 F. Supp. 358 (W.D. Pa. 1991), aff’d by an

equally divided court, 963 F.2d 567 (3d Cir. 1992), but

the Third Circuit’s decision in that case is an affir-

mance, without opinion, by an equally divided en banc

court, and thus lacks precedential value, see Rutledge v.

United States, 517 U.S. 292, 304 ( 1996); Tunis Bros. Co.

v. Ford Motor Co., 763 F.2d 1482, 1501 (3d Cir. 1985).

2. In addition to holding that any common law re-

porter’s privilege has been overcome on the facts of this

area between contempt and perjury.” Miller Pet. App. 102a

(quoting Kitchen, 706 F.2d at 1272).

7 Whereas the ex parte submission in this case covered the full

breadth and scope of the grand jury’s ongoing investigation, the

contempt findings at issue in Kitchen and Alter turned on discrete

factual determinations requiring (in Kitchen) the disclosure of the

testimony of a single witness and (in Alter) the disclosure of no

- grand jury materials whatever.

8 Petitioners also rely (Miller Pet. 26; Cooper Pet. 15) on a sec-

ond district court decision, New York Times v. Gonzales, No. 04

Civ. 7677 (RWS), 2005 WL 427911 (S.D.N.Y. Mar. 2, 2005), but a

conflict between court of appeals decisions and district court deci-

sions is not a basis for certiorari. See Sup. Ct. R. 10.

22

case, the court of appeals held that there is no First

Amendment reporter’s privilege in the context of a

good faith grand jury investigation. Petitioners also

seek review of that holding. But as the court of appeals

correctly recognized (Miller Pet. App. 7a-15a), this

Court has already held in Branzburg v. Hayes, 408 U.S.

665 (1972), that there is no First Amendment reporter’s

privilege in the grand jury context. Contrary to peti-

tioners’ contention, moreover, there is no conflict

among the courts of appeals on that question. And this

would not be an appropriate case to reconsider the is-

sue, because any First Amendment privilege would be

no broader than the common law privilege whose exis-

tence the court of appeals assumed, and it would thus

be overcome on the facts of this case for the same rea-

sons the common law privilege was overcome.

a. In Branzburg, the Court held that journalists, like

other citizens, must “respond to relevant questions put

to them in the course of a valid grand jury investiga-

tion.” 408 U.S. at 690-691; see Cohen v. Cowles Media

Co., 501 U.S. 663, 669 (1991) (citing Branzburg for the

proposition that “the First Amendment [does not] re-

lieve a newspaper reporter of the obligation shared by

all citizens to respond to a grand jury subpoena and an-

swer questions relevant to a criminal investigation,

even though the reporter might be required to reveal a

confidential source”); University of Pa. v. EEOC, 493

U.S. 182, 201 (1990) (Branzburg “rejected the notion

that under the First Amendment a reporter could not

be required to appear or to testify as to information ob-

tained in confidence without a special showing that the

reporter’s testimony was necessary”). The Court re-

jected the suggestion that courts should conduct a case-

by-ease balancing of interests each time a reporter is

subpoenaed by a grand jury. Instead the Court struck

23

a one-time balance: the state’s interest in “law en-

forcement and in ensuring effective grand juries” justi-

fies the “burden on First Amendment rights” when

“reporters [are required] to give testimony in the man-

ner and for the reasons that other citizens are called.”

Branzburg, 408 U.S. at 690, 700. The Court refused to

grant news sources a privilege not granted to law en-

forcement informants in criminal cases. Id. at 698.

In striking this balance, the Court carefully analyzed

the competing interests. The reporters claimed that

newsgathering would be significantly impeded, 408 U.S.

at 680, but the Court concluded that requiring testi-

mony from reporters in cases where news sources are

“implicated in crime or possess information relevant to

the grand jury’s task” would not seriously impede

newsgathering, id. at 691. The Court observed that

many news sources have a “symbiotic” relationship

with the press “which is unlikely to be inhibited by the

threat of subpoena.” Jd. at 694. N oting that predictions

of a constricted flow of news were to “a great extent

speculative” and that such predictions often are made

by persons with “professional self-interest,” the Court

stated that “the evidence fails to demonstrate that

there would be a significant constriction of the flow of

news to the public if this Court reaffirms the prior

common-law and constitutional rule regarding the tes-

timonial obligations of newsmen.” Id. at 693. The

Court concluded that “the lesson history teaches us” is

that “the press has flourished” without special privi-

leges. Id. at 698, 699.

The Court also weighed the claimed adverse effect on

newsgathering against the public interest in law en-

forcement. The Court concluded that, even if some

news sources were deterred, it could not “accept the

argument that the public interest in possible news

24

about crime from undisclosed and unverified sources

must take precedence over the public interest in pur-

suing and prosecuting those crimes reported to the

press by informants and in thus deterring the commis-

sion of such crimes in the future.” 408 U.S. at 695. The

Court also stated that case-by-case balancing of ister-

ests would embroil the courts in “preliminary factual

and legal determinations” that would “present practical

and conceptual difficulties of a high order.” Jd. at 704,

705.

At the end of its opinion in Branzburg, the Court

noted that “news gathering is not without its First

Amendment protections.” 408 U.S. at 707. The Court

stated that, in cases where grand jury investigations

are being conducted in bad faith, without legitimate law

enforcement purposes, or to harass the press or disrupt

relationships with news sources, a court would be

authorized to grant a motion to quash on First Amend-

ment grounds. [bid.°

Justice Powell, who joined the Court’s opinion, wrote

a brief concurring opinion underscoring the point made

by the Court in the concluding portion of its opinion.

408 U.S. at 701-710. The best reading of Justice Pow-

ell’s concurring opinion, and the only reading that rec-

onciles his opinion with the fact that he joined the

opinion of the Court, is that he was elaborating on the

se. of courts in cases of bad faith investigations. Jus-

tice Powell’s references to a “claim to privilege” and

“case-by-case” balancing should thus be read as limited

9 That the Court grounded its admonition against harassment

in the First Amendment is not surprising inasmuch as Branzburg

involved several consolidated state cases. Only the Constitution

could provide the basis for this Court to require the states to rec-

ognize a basis for a motion to quash.

25

to cases of alleged harassment. Jd. at 710. Justice

Powell’s later opinions are fully consistent with this in-

terpretation of his concurring opinion in Branzburg.

See Zurcher v. Stanford Daily, 436 U.S. 547, 570 n.3

(1978) (Powell, J., concurring); Saxbe v. Washington

Post, 417 U.S. 848, 859 (1974) (Powell, J., dissenting).

There is nothing to suggest that Justice Powell in-

tended to transform the clear language of the Court’s

opinion, and, as the court of appeals observed, “what-

ever Justice Powell specifically intended, he joined the

majority.” Miller Pet. App. 14a.

'° Petitioners suggest (Miller Pet. 9; Cooper Pet. 25-26) that the

number of subpoenas to reporters has increased, with potential

negative effects on newsgathering. Petitioners offer the selfsame

arguments and evidence that were advanced in Branzburg, in-

cluding claims of an unprecedented assault on the press (408 U.S.

at 699) and affidavits from members of the press predicting the

drying up of sources and seriously diminished news gathering (id.

at 693, 694). Events since 1972 continue to teach the same lesson

that history taught the Court in Branzburg—namely, that the lack

of a federal reporter’s privilege in the grand jury context has not

had the negative effects that were predicted. Petitioners’ claim of

adverse effects on news gathering amounts to an argument that

proves too much: “If newsmen’s confidential sources are as sensi-

tive as they are claimed to be,” as Branzburg observed, “it would

appear that only an absolute privilege would suffice.” Id. at 702.

In fact, confidential sources may be disclosed in a variety of ways,

including by the reporters themselves. See, e.g., Stephen Bates,

The Reporter's Privilege, Then and Now 11 (Research Paper R-23)

(Apr. 2000), available at http://www.ksg.harvard.edu/presspol/

Research_Publications/Papers/Research_Papers/R23.pdf; Kath-

ryn M. Kase, Note, When a Promise is Not a Promise: The Legal

Consequences for Journalists Who Break Promises of Confidenti-

ality to Sources, 12 Hastings Comm. & Ent. L.J. 565, 576-577

(1990); Monica Langley & Lee Levine, Broken Promises, Col.

Journalism Rev., July-Aug. 1998, at 21. Indeed, as a result of self-

regulation by the Department of Justice, through its guidelines for

the issuance of media subpoenas (a factor considered by the Court

26

b. Petitioners contend (Miller Pet. 11-20; Cooper

Pet. 21-23) that there is a conflict in the circuits re-

garding the existence of a reporter’s privilege grounded

in the First Amendment. But no court of appeals has

recognized a First Amendment reporter’s privilege in

the circumstances of a grand jury investigation con-

ducted in good faith. To the contrary, every federal

court of appeals to address the issue, consistent with

the court of appeals’ decision in this case, and consistent

with Branzburg, has refused to recognize a First

Amendment reporter’s privilege in that context. See

In re Grand Jury Proceedings, 5 F.3d 397, 403 (9th Cir.

1993), cert. denied, 510 U.S. 1041 (1994); In re Grand

Jury Proceedings, Storer Communications, 810 F.2d

580, 584-585 (6th Cir. 1987). See also In re Special Pro-

ceedings, 373 F.3d 37, 44, 45 (1st Cir. 2004) (holding that

Branzburg precludes recognition of a First Amendment

reporter’s privilege in connection with special prosecu-

tor’s investigation, a context the court found analogous

to a grand jury investigation). As noted above, the

Third Circuit decision upon which petitioners rely

(Miller Pet. 14; Cooper Pet. 21), In re Williams, 766 F.

Supp. 358 (W.D. Pa. 1991), aff’d by an equally divided

court, 963 F.2d 567 (3d Cir. 1992), is an affirmance,

without opinion, by an equally divided en banc court,

and thus lacks precedential value.

In applying a reporter’s privilege in contexts other

than a grand jury investigation, the courts of appeals

have distinguished Branzburg, and expressly acknowl-

edged that Branzburg precludes recognition of a First

Amendment privilege in the context of a good faith

in Branzburg, 408 U.S. at 706-707), the subpoenas attributable to

federal grand jury investigations and prosecutions represent a

small minority of the subpoenas identified in the petitions.

27

grand jury investigation. See, e.g., Zerilli, 656 F.2d at

711 (distinguishing Branzburg on the ground that the

Supreme Court “justified the decision by pointing to

the traditional importance of grand juries and the

strong public interest in effective criminal investiga-

tion”); Baker v. F&F Investment, 470 F.2d 778, 784-785

(2d Cir. 1972) (“the Court’s concern with the integrity

of the grand jury as an investigating arm of the criminal

justice system distinguishes Branzburg from the [civil]

case before us”); In re Petroleum Products Antitrust

Litigation, 680 F.2d 5, 9 (2d Cir.) (“we are dealing here

with a civil action rather than questioning by a grand

jury”), cert. denied, 459 U.S. 909 (1982). As these deci-

sions correctly recognize, this Court’s decision in Bran-

zburg turned on the unique and vital role of the grand

jury in our criminal justice system. As the Court ob-

served in Branzburg:

The prevailing constitutional view of the newsman’s

privilege is very much rooted in the ancient-role of

the grand jury that has the dual function of deter-

mining if there is probable cause to believe that a

crime has been committed and of protecting citizens

against unfounded criminal prosecutions.

408 U.S. at 686-687 (footnote omitted). The Court’s

holding clearly articulated the importance of the grand

jury’s role, and the paramount public interest in law en-

forcement:

We are asked to create another [testimonial privi-

lege for unofficial witnesses] by interpreting the

First Amendment to grant newsmen a testimonial

privilege that other citizens do not enjoy. This we

decline to do. Fair and effective law enforcement

aimed at providing security for the person and

property of the individual is a fundamental function

28

of government and the grand jury plays an impor-

tant, constitutionally mandated role in this process.

Id. at 690 (footnote omitted). By distinguishing the

grand jury from other legal contexts, the courts of ap-

peals have consistently, and correctly, followed Bran-

zburg’s teaching.

ec. Cooper and Time argue that, “even if the D.C.

Circuit’s reading of Branzburg were correct, the change

in First Amendment law since that time makes this

case uniquely appropriate for this Court’s review.”

Cooper Pet. 24 (citing Turner Broad. Sys. v. FCC, 512

U.S. 622 (1994), and Bartnicki v. Vopper, 532 U.S. 514

(2001)). But neither of the decisions cited in the peti-

tion addressed the balancing of First Amendment in-

terests against interests related to the historically

unique role of grand juries in the investigation of

crimes. In any event, this case would not be a suitable

vehicle for reconsidering Branzburg even if the Court

were inclined to do so, because a First Amendment

privilege would be no broader than the common law

privilege assumed to exist by the court of appeals, and

thus would be overcome in this case for the same rea-

sons the assumed common law privilege was over-

come."

'! Petitioners also rely (Miller Pet. 19-20 & n.19; Cooper Pet. 21-

22 & n.6) on decisions of state courts. All but two, however, involve

application of a First Amendment reporter’s privilege in contexts

other than the grand jury, and only one of those two was decided

after Branzburg. That case, Jn re Letellier, 578 A.2d 722 (Me.

1990), was wrongly decided. It misconstrued Branzburg and relied

upon prior decisions of the First Circuit applying a reporter’s

privilege in civil proceedings. Jd. at 724-726. This would not be an

appropriate case for resolving any conflict between the lone state

decision cited by petitioners and the decisions of the federal courts

29

3. The Special Counsel seeks to bring the ongoing

investigation, which he began in December 2003, to as

swift a conclusion as possible. By fall 2004, the Special

Counsel’s investigation was for all practical purposes

complete except for the testimony of Miller and Cooper.

The unsuccessful negotiations with petitioners and the

litigation on the motions to quash and the contempt ci-

tations has proceeded in the months since then. The

Special Counsel has endeavored to expedite the pro-

ceedings to the extent possible. After rehearing was

denied in the court of appeals, the Special Counsel

agreed to stay the mandate upon the agreement of peti-

tioners to a schedule that would allow the filing of the

certiorari petitions, the briefs of amici, the brief in op-

position, and petitioners’ reply briefs in time for this

Court to consider the petitions before its summer re-

cess. The Special Counsel respectfully requests that

the Court deny the petitions at its earliest possible op-

portunity, so that the investigation can be brought to a

close.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

PATRICK J. FITZGERALD

Special Counsel

JAMES P. FLEISSNER

DEBRA RIGGS BONAMICI

KATHLEEN M. KEDIAN

Deputy Special Counsels

MAY 2005

of appeals, however, because any First Amendment privilege

would be overcome in this case.