Reply Brief — Miller v. United States

(2) Supreme Court, U.S. i

JUN 7 - 2005

OFFICE OF THE CLERK |

No. 04-1508

IN THE

Supreme Court of the United States

MATTHEW COOPER AND TIME INC.,

Petitioners,

V.

UNITED STATES OF AMERICA, =

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

REPLY BRIEF FOR PETITIONERS

ROBIN BIERSTEDT MIGUEL A. ESTRADA

TM™E INC. Counsel of Record

1271 Avenue of the Americas THEODORE J. BOUTROUS, JR.

Room 38-45 JACK M. WEISS

New York, NY 10020 THOMAS H. DUPREE, JR.

(212) 522-3217 GIBSON, DUNN & CRUTCHER LLP

- 1050 Connecticut Avenue NW

RICHARD A. SAUBER Washington, DC 20036-5306

Counsel for Matthew Cooper (202) 955-8500

FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

1001 Pennsylvania Ave. NW

Washington, DC 20004

(202) 639-7000

Counsel for Petitioners

i

TABLE OF CONTENTS

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A. The Special Counsel’s Assertion That

He Would Be Able To Defeat Whatever

Reporter’s Privilege This Court Might

Recognize Is Irrelevant At The Certiorari

Stage And Baseless In Any Event. ............00..0........ 2

B. The Federal Common Law And First

Amendment Questions Warrant This

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C. The Due Process Question Warrants This

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TABLE OF AUTHORITIES

Pages

CASES

Branzburg v. Hayes, 408 U.S. 665 (1972)............0....... passim

Butterworth v. Smith, 494 U.S. 624 (1990) 0000000000000... ae

Delaney v. Superior Court, 789 P.2d 934

(Cal. 199) nnccccscss en 4

Greene v. McElroy, 360 U.S. 474 (1959) ...0........0..0ccccceceeeee 9

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) ...........00.00022.. 8,9

In re Grand Jury Proceedings, 5 F.3d 397

(Sth Cir. 19°00 :....:.c:. iy cae ene. 2 6

In re Grand Jury Subpoena of Williams, 766

F. Supp. 358 (W.D. Pa. 1991), aff'd by an

equally divided court, 963 F.2d 567

(3d Cir. 1990)... oo, een 4

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983) .......0.0.0.0........ 10

In re Letellier, 578 A.2d 722 (Me. 1990)................000:c0ccecee. 7

In re Oliver, S33 43. Bat Cp eae sdk teetetschtentss: 9

Jaffee v. Redmond, 518 U.S. 1 (1996) ...............cceececeeee. 1, 4,6

New York Times Co. v. Gonzales, 2005 WL

427911 (SDD. FRE, Bh vi datesncibnckecs snctesssvesns 6

Riley v. City of Chester, 612 F.2d 708

(3d Cir, BI inca ace eee ee aes 7

Swidler & Berlin v. United States, 524 U.S. 399

CRG) ooo cece cixiscks piste aaa adees isco 6

UMWA v. Bagwell, 512 U.S. 821 (1994)........00.cecceeeccee. 10

United States v. Alter, 482 F.2d 1016

CO Ce, ST assess ee ceed 10

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United States v. Calandra, 414 U.S. 338 (1974)

United States v. Cuthbertson, 630 F.2d 139

(3d Cir. 1980) ooo. ecccccccccccccccsecsecseeseesseseseeeesee:

United States v. Dionisio, 410 U.S. 1 (1973)........

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

United States v. R. Enters., Inc.,

498 U.S. 292 (1991) ooo coccccececeee cee ccceeee

CONSTITUTIONAL PROVISIONS

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N.M. STAT. ANN. § 38-6-7 000000.0..ccccceeeceeee eens

N.D. CENT. CODE § 31-01-06.2 ........0.0. cece

OTHER AUTHORITIES

Todd S. Purdum, “Deep Throat” Unmasks

Himself: Ex-No. 2 at F.B.I., N.Y. TIMES,

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REPLY BRIEF

The Special Counsel devotes most of his 29-page Oppo-

sition (“Opp.”) to arguing that the Court should deny certio-

rari because, even if petitioners are correct, and there exists a

federal reporter’s privilege, he thinks he will be able to defeat

it based on his ex parte evidentiary submission. Opp. 10-21.

The Special Counsel is incorrect—and a respondent’s claim

that he will win on the merits is not a basis for denying re-

view in any event—but the merits-based focus of the Special

Counsel’s brief is itself quite telling: By his silence in the

face of so many compelling reasons to grant review, the Spe-

cial Counsel effectively concedes that petitioners have satis-

fied the standards for obtaining certiorari.

Indeed, the Special Counsel fails to address, let alone

dispute, the fact that the federal courts are in utter chaos over

how to interpret this Court’s 5-4 decision 33 years ago in

Branzburg v. Hayes, 408 U.S. 665 (1972), or that the legal

landscape has changed dramatically since Branzburg in a

way that strongly supports recognition of confidential source

protection. Since Branzburg, an overwhelming state consen-

sus has developed recognizing confidential source protection;

since Branzburg, Congress has affirmatively directed the

federal courts to develop privileges under Rule 501; and

since Branzburg, this Court’s First Amendment jurispru-

dence has developed in a manner that has superseded

Branzburg’s approach. Nor can the Special Counsel muster

any response to petitioners’ argument that Rule 501 and Jaf-

fee v. Redmond, 518 U.S. 1 (1996), require recognition of a

federal common law reporter’s privilege.

The Special Counsel’s assertion that there is no need for

review under these compelling circumstances rings especially

hollow in light of the amicus brief filed by 34 States and the

District of Columbia. Relying on Jaffee, and emphasizing

that 49 States and the District have now adopted reporter’s

“shield laws,” the chief law enforcement officers of these ju-

risdictions urge this Court to grant review because the lack of

2

comparable federal protection—or “[u]ncertainty and confu-

sion” regarding the existence of such _ protection—

“undermines both the purpose of the shield laws, and the pol-

icy determinations of the State courts and legislatures that

adopted them.” States Br. 2-3.

The Special Counsel has no answer to any of these ar-

guments. He does not and cannot deny that this is a case of

national importance. And he fails in his attempt to distin-

guish decisions of this Court and two Circuits holding that

the Due Process Clause requires that defendants be afforded

the chance to review and challenge the evidence against them

before they may be imprisoned.

A. The Special Counsel’s Assertion That He Would

Be Able To Defeat Whatever Reporter’s Privi-

lege This Court Might Recognize Is Irrelevant At

The Certiorari Stage And Baseless In Any Event.

The Special Counsel’s main argument is that the court of

appeals “assumed” that a federal common law privilege ex-

ists and “merely held that any such privilege had been over-

come on the particular facts of this case.” Opp. 10. Accord-

ing to the Special Counsel, this ruling was correct and elimi-

nates any basis for granting certiorari because it demonstrates

that he will be able to defeat whatever privilege this Court

might recognize. Jd. at 11-16. The Special Counsel is wrong.

First, it is misleading to suggest that the court of appeals

simply “assumed” that a federal reporter’s privilege exists—

to the contrary, the panel members sharply disagreed on this

very issue, generating four separate opinions. Pet. App. 16a

(“The Court is not of one mind on the existence of a common

law privilege.”); id. 24a-34a (Sentelle, J., concurring) (argu-

ing against privilege and that only this Court can recognize

one in light of Branzburg); id. 35a-44a (Henderson, J., con-

curring) (rejecting Judge Sentelle’s view, but “declining to

decide whether a reporter’s privilege exists or to define its

contours”); id. 45a-85a (Tatel, J., concurring) (urging recog-

nition of a privilege). Far from making this the narrow, fact-

bound issue the Special Counsel seeks to portray, the stark

3

conflict among the panel members mirrors what has been

happening in the federal courts for three decades and power-

fully supports the need for this Court’s review. Pet. 8-21.

Second, while the panel did agree that “if [a common

law] privilege applies here, it has been overcome” by the

Special Counsel’s ex parte evidentiary proffer, Pet. App. 16a

(emphasis added), that hypothetical pronouncement based on

secret evidence cannot possibly obviate the need for this

Court’s review. The court’s reliance on the Special Coun-

sel’s ex parte submission as a basis to imprison and fine peti-

tioners itself raises an important due process question that

warrants review. Pet. 27-29; see also infra 9-10.

Moreover, because the court refused to decide whether a

common law privilege exists, it never defined the contours of

such a privilege; it is thus impossible to claim that the privi-

lege provides no protection in this case. Judge Tatel cor-

rectly observed that “we cannot resolve this case without

adopting some standard,” Pet. App. 51a, but that is exactly

what the court purported to do. Although Judge Tatel him-

self proposed a standard, Judge Henderson criticized it, and

“she never indicate[d] what standard she would apply.” /d.

Indeed, while Judge Henderson stated that “the Special

Counsel’s evidentiary proffer overcomes any hurdle, how-

ever high, a federal common-law reporter’s privilege may

erect,” Pet. App. 35a, she never assumed that a particular

standard applies let alone analyzed any alternative formula-

tions of the privilege. As Judge Tatel put it, “[w]ithout ruling

out all such plausible alternatives that would allow the re-

porters to prevail, how could one know that they cannot pre-

vail here? And without selecting some other test based on

Jaffee and Rule 501, how could one know that such alterna-

tives are plausible?” Jd. 51a-52a

The Special Counsel incorrectly suggests that petitioners

intended to limit their arguments as to the potential scope of ~

the privilege because they did not specifically ask the Court

to adopt a particular standard in their Petition. Opp. 15-16.

But petitioners did not discuss how to define the contours of

4

a common law or First Amendment privilege because those

are issues that go to the merits, not because they intended to

endorse or rule out any particular formulation.

In fact, there are numerous “plausible alternatives that

would allow the reporters to prevail.” Pet. App. S5la. For

example, this Court, much as it did in Jaffee, may decide to

“reject the balancing component of the privilege,” and hold

that the privilege generally protects confidential sources, sub-

ject to certain clearly defined exceptions designed to avert

serious and imminent future harm. See Jaffee, 518 U.S. at

17-18 & n.19 (“we do not doubt that there are situations in

which the privilege must give way, for example, if a serious

threat of harm to the patient or to others can be averted only

by means of a disclosure by the therapist”); see also Pet.

App. -119a (Tatel, J., concurring in denial of rehearing en

banc) (noting the possibility that reporters may hold a “quali-

fied privilege, that is, a privilege subject to exceptions, much

like the crime-fraud exception to the attorney-client privilege,

and the immuinent-harm exception for psychotherapist-patient

communications”) (citation omitted). Alternatively, this

Court could decide that there is a reporter’s privilege that ap-

plies unless protecting the source in the particular case would

‘cause a miscarriage of justice.’” Jd. 51a (citing N.D. CENT.

CODE § 31-01-06.2; MINN. STAT. § 595.024; N.M. STAT.

ANN. § 38-6-7).!

1 The Special Counsel incorrectly suggests that the choice this Court

will face is between an “absolute” privilege and a “qualified” privilege

that consists of a balancing test. In fact, the term “absolute” privilege is a

misnomer. Even States with ostensibly “absolute” reporter’s privileges,

e.g, Cal. Const. art. I, § 2(b), recognize exceptions. See Delaney v. Supe-

rior Court, 789 P.2d 934, 946-51 (Cal. 1990) (noting exception to- abso-

lute immunity provided by shield law where application jeopardizes

criminal defendant’s right to a fair tnal and applying balancing test in

such circumstances). Labels aside, the real choice is the one addressed in

Jaffee—between (1) a privilege, subject to exceptions and (2) a balancing

approach. As the Jaffee Court explained in choosing the former, “if the

purpose of the privilege is to be served, the participants in the confiden-

tial conversation “must be able to predict with some degree of certainty

——

5

The Special Counsel has offered no indication that he

can meet an imminent-harm, miscarriage-of-justice, or simi-

lar standard and defeat the privilege in this case. Nor have

petitioners been afforded the right to review and refute the

Special Counsel’s arguments and evidence for overriding any

qualified balancing test this Court might establish. Accord-

ingly, the Special Counsel’s belief that he would be able to

defeat, based on secret evidence, whatever federal privilege

might be recognized cannot overcome the compelling rea-

sons for granting certiorari in this case.

B. The Federal Common Law And First Amend-

ment Questions Warrant This Court’s Review.

1. Federal Common Law

The Special Counsel does not dispute petitioners’ de-

scription of the conflicts among the circuits regarding the ex-

istence of a federal common law reporter’s privilege under

Rule 501. See Pet. 14-16. His only response is to contend |

that “there is no circuit conflict on [the] issue” whether such

a privilege exists “in the context of a good faith grand jury

investigation.” Opp. 21. But he cites no other privilege

known to law that applies everywhere except in the grand

jury, and he ignores Federal Rule of Evidence 1101(c), which

expressly provides that “[t]he rule with respect to privileges

applies at all stages of all actions, cases, and proceedings”

(emphasis added); see also FED. R. EviD. 1101(d)(2) (provid-

ing that Federal Rules of Evidence do not apply to grand jury

proceedings “other than with respect to privileges”); United

States v. Calandra, 414 U.S. 338, 346 (1974); Pet. 16.

Under Rule 1101, the many decisions recognizing a re-

porter’s privilege in civil and criminal cases apply with equal

force in the grand jury context and therefore conflict with the

[Footnote continued from previous page]

whether particular discussions will be protected. An uncertain privilege,

or one which purports to be certain but results in widely varying applica-

tions by the courts, is little better than no privilege at all.” 518 U-S. at

17-18 (citation omitted).

6

ruling below and with other decisions rejecting the privilege

in connection with grand jury subpoenas. Compare United

States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)

(“journalists have a federal common-law qualified privilege

arising under Fed. R. Evid. 501 to refuse to divulge their con-

fidential sources”) with In re Grand Jury Proceedings, 5 F.3d

397, 399 (9th Cir. 1993) (rejecting common law reporter’s

privilege in case involving grand jury subpoena). Indeed,

courts have recognized the privilege in the grand jury context

by relying on decisions in civil and criminal cases. See, e.g.,

In re Grand Jury Subpoena of Williams, 766 F. Supp. 358,

371 (W.D. Pa. 1991), aff'd by an equally divided court, 963

F.2d 567 (3d Cir. 1992) (en banc); New York Times Co. v.

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

The Special Counsel does not even attempt to respond to

petitioners’ argument that Jaffee and Rule 501 virtually com-

pel recognition of a federal common law reporter’s privilege.

Pet. 16-20; see also States’ Br. 6 (“Here, as in Jaffee, a ‘con-

sistent body’ of policy determinations by State legislatures

reflects both ‘reason’ and ‘experience.’”’) (citations omitted).

To be sure, the Special Counsel argues that petitioners have

failed to produce sufficient proof that the absence of federal

protection of confidential sources will impair newsgathering

and thus the free flow of information to the public, Opp. 25

n.10 (citing Branzburg), but Branzburg’s apparent demand

for empirical proof of the need for a privilege squarely con-

tradicts Jaffee, 518 U.S. at 10, as well as Swidler & Berlin v.

United States, 524 U.S. 399, 410 (1998) (applying Rule 501

to hold that attorney-client privilege survives client’s death

despite finding the “empirical evidence . . . scant and incon-

clusive”). This contradiction among the Court’s decisions

further supports review. Pet. 20-21.

Moreover, the undisputed record in this case, decisions

of federal and state courts, as well as state legislatures, and

our nation’s history provide irrefutable proof that confiden-

tial sources are essential to effective news reporting. See

Brief Amici Curiae of ABC, Inc., et al. at 6, Pet. 9-10, 25-26;

see also, e.g., Todd S. Purdum, “Deep Throat” Unmasks

es

7

Himself: Ex-No. 2 at F.B.I., N.Y. TIMES, Jun. 1, 2005 at Al,

A15 (Carl Bernstein: “This is a case history and a case lesson

of why it is so important that we have confidential sources

There’s no way this reporting could have been done,

nor is there any way that good reporting at a lot of places can

be done, without anonymous sources.”).

2. The First Amendment

The Special Counsel argues at length, based on his read-

ing of Branzburg, that he is correct on the merits and that

there is no First Amendment-based reporter’s privilege. Opp.

22-25. But he does not dispute that federal courts, and state

courts of last resort, are sharply divided and confused regard-

ing what Branzburg means on this very issue. Pet. 21-25.

The Special Counsel simply takes one side in the debate that

has raged around the nation for more than 30 years, and dis-

regards the decisions that reject his interpretation.

Thus, for example, the Special Counsel relies on what he

calls the “best reading of Justice Powell’s concurring opin-

ion,” arguing that Justice Powell, whose vote was necessary

to the majority, was merely “elaborating on the role of courts

in cases of bad faith investigations.” Opp. 24. But numerous

circuit court decisions have taken precisely the opposite

view—that Justice Powell’s concurrence articulated his un-

derstanding that the Court intended to allow for development

of First Amendment-based protection of confidential sources.

Pet. 11-12; see, e.g., Riley v. City of Chester, 612 F.2d 708,

715-16 (3d Cir. 1979) (explaining that Justice Powell “cast

the deciding vote in Branzburg” and applying balancing test).

Likewise, when confronted with a clear conflict between the

decision below, rejecting a First Amendment privilege in the

grand jury context, and the decision of a state court of last

resort recognizing such a privilege, /n re Letellier, 578 A.2d

722, 726 (Me. 1990), the Special Counsel simply announces

that the latter “was wrongly decided.” Opp. 28 n.11. But the

issue at this stage, of course, is not which position is correct,

the relevant question is whether there is conflict in the courts,

8

and the Special Counsel’s merits-based argument is a glaring

acknowledgment that such conflict exists.

The Special Counsel again seeks to distinguish some de-

cisions on the basis that this case arises in the grand jury con-

text, Opp. 26, but privileges do not vary in federal court de-

pending on the nature of the proceedings. FED. R. EVID.

1101. And “grand juries are expected to ‘operate within the

limits of the First Amendment,’ as well as the other provi-

sions of the Constitution.” Butterworth v. Smith, 494 U.S.

624, 630 (1990) (quoting Branzburg, 408 U.S. at 708).

To the extent that some courts have felt constrained by

Branzburg from recognizing First Amendment protection for

confidential sources, it is time to revisit Branzburg because

recent trends in this Court’s jurisprudence fundamentally un-

dermine Branzburg’s rationale. Pet. 24. The Special Coun-

sel notes that the First Amendment cases cited by petitioners

did not involve grand jury proceedings, Opp. 28 & n.11, but .

he does not deny the more basic point—that Branzburg

clashes with this Court’s more recent decisions holding “that

generally applicable laws ... require heightened scrutiny

when they pose a genuine risk to First Amendment values.”

Br. Amici Curiae of American Society of Newspaper Editors,

et al. at 2; id. at 3-11 (canvassing case law). This Court

alone has the power to resolve the tension between

Branzburg and its modern First Amendment jurisprudence.

C. The Due Process Question Warrants This

Court’s Review.

The decision below directly conflicts with decisions

from this and other courts forbidding, as a matter of due

process, imprisonment based on secret evidence. Pet. 27-29.

The Special Counsel contends that this case is distinguish-

able because the privilege issue requires analysis of “the gov-

ernment’s conduct of the investigation” rather than “the liti-

gant’s conduct.” Opp. 18. But Hamdi v. Rumsfeld holds that

where the “most elemental of liberty interests—the interest in

being free from physical detention by one’s own govern-

ment” is at stake, due process requires that an imprisoned

9

person have received “notice of the factual basis for his [de-

tention], and a fair opportunity to rebut the Government’s

factual assertions before a neutral decisionmaker.” 124 S. Ct.

2633, 2646-48 (2004). Accord In re Oliver, 333 U.S. 257

(1948); Greene v. McElroy, 360 U.S. 474 (1959). Neither

Hamdi nor any other case recognizes the Special Counsel’s

purported distinction, which is baseless. The district court in

this case made rulings that resulted in an order of physical

detention. Under Hamdi, petitioners have a due process right

to know, and must be given the chance to rebut, the facts and

arguments that supposedly support the confinement order.

The Special Counsel concedes the availability of alterna-

tive procedures, such as disclosure to counsel under a protec-

tive order, but claims that any alternative “would have pro-

vided insufficient protection for grand jury secrecy.” Opp.

17. The Special Counsel provides no support for this bare

assertion, nor explains why this proceeding demands greater

secrecy than Hamdi and other enemy combatant cases, where

counsel have been allowed access to the evidence used to jus-

tify their clients’ confinement.2 Although the Special Coun-

sel faults petitioners for failing to “argue that . . . the court of

appeals relied on erroneous factual findings,” Opp. 15-16, the

entire point of petitioners’ due process challenge is that the

‘Special Counsel and the court have withheld the facts from

them. The fact that the confinement order arises from a con-

tempt proceeding raises special concerns, as this Court has

recognized that “[uJnlike most areas of law, where a legisla-

ture defines both the sanctionable conduct and the penalty to

2 The Special Counsel does not suggest that petitioners’ counsel would

not abide by a protective order issued under Fed. R. Crim. P. 6(e). More-

over, the Special Counsel exaggerates the importance of grand jury se-

crecy in characterizing it as an absolute, when witnesses are free to dis-

close their testimony, and the subject matter here is widely known to wit-

nesses, subjects and targets. Finally, although the Special Counsel sug-

gests that allowing petitioners access to its secret submission “risks taint-

ing .. . later testimony.” Opp. 20, he admits that other than the testimony

from Mr. Cooper and Ms. Miller, “the factual investigation” is “for all

practical purposes complete.” Opp. 10.

10

be imposed, civil contempt proceedings leave the offended

judge solely responsible for identifying, prosecuting, adjudi-

cating, and sanctioning the contumacious conduct.” UMWA

v. Bagwell, 512 U.S. 821, 831 (1994).

The Special Counsel contends that petitioners seek “ex

tensive discovery” and “disclosure of all the other evidence

gathered by the grand jury to date.” Opp. 18-19 (citing

United States v. Dionisio, 410 U.S. 1 (1973), and United

States v. Mara, 410 U.S. 19 (1973)), and on that basis seeks

to downplay the conflict between the ruling below and the

decisions in /n re Kitchen, 706 F.2d 1266 (2d Cir. 1983), and

United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). But

petitioners are not seeking discovery from the Special Coun-

sel. All they seek is access to the Special Counsel’s ex parte

submission, the contents of which were selected by the Spe-

cial Counsel to support his arguments for holding petitioners

in contempt and incarcerating Mr. Cooper.

The Special Counsel also asserts that this Court “ap-

proved” the use of secret evidence in United States v. R. En-

ters., Inc., 498 U.S. 292 (1991). Opp. 18-19. But in that

case, the Court addressed the reasonableness standard for

subpoenas under FED. R. CRIM. P. 17, and did not address the

question presented here—whether a witness asserting a privi-

lege is entitled to see the evidence and legal arguments

against him before he is imprisoned. This Court did not “ap-

prove” ex parte proceedings, but simply noted in dicta that a

court assessing the reasonableness of a subpoena may require

additional disclosures from the government. /d. at 302. Al-

though the Court noted that certain procedural protections are

limited in the grand jury context, id. at 297-99, privileges are

fully applicable. See FED. R. Evip. 1101. The Due Process

Clause simply will not tolerate the use of secret evidence to

incarcerate or fine witnesses who assert such privileges.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ROBIN BIERSTEDT MIGUEL A. ESTRADA

TIME INC. ; Counsel of Record

1271 Avenue of the Americas | THEODORE J. BOUTROUS, JR.

Room 38-45 JACK M. WEISS

New York, NY 10020 THOMAS H. DUPREE, JR.

(212) 522-3217 GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

R'_HARD A. SAUBER Washington, DC 20036-5306

Counsel for Matthew Cooper (202) 955-8500

FRIED, FRANK, HARRIS, SHRIVER

& JACOBSON LLP

1001 Pennsylvania Ave. NW

Washington, DC 20004

(202) 639-7000

Counsel for Petitioners

June 7, 2005