Court: Court of Appeals for the D.C. Circuit; February 14, 2005; Federal Appellate Court
An investigative reporter for the New York Times, the White House correspondent for Time magazine, and Time, Inc. are appealing a District Court ruling that found them in civil contempt for refusing to provide evidence to a grand jury in a case led by Special Counsel Patrick J. Fitzgerald. The appellants argue that their refusal is protected by a reporter’s privilege under the First Amendment or, alternatively, by federal common law privilege. The District Court determined that neither the First Amendment nor federal common law protects journalists’ confidential sources during a grand jury investigation. The appellate court agrees with this conclusion, asserting that any potential common law privilege is not absolute and has been superseded by the Special Counsel's filings. The court also dismisses other errors raised by the appellants as without merit and affirms the District Court's decision.
The underlying controversy stemmed from President George W. Bush's 2003 State of the Union Address, which included a claim about Saddam Hussein seeking uranium from Africa. Former Ambassador Joseph Wilson publicly disputed this claim in a New York Times op-ed, stating he found no credible evidence of such a pursuit. Subsequently, columnist Robert Novak reported that administration officials indicated Wilson's wife, Valerie Plame, a CIA operative, had a role in his mission to Niger. Following this, additional media reports, including one by appellant Matthew Cooper for Time.com, confirmed that government officials had identified Plame's involvement in the matter.
Two senior White House officials allegedly disclosed the identity and occupation of CIA agent Valerie Wilson to six journalists, prompting a Department of Justice investigation into potential violations of federal law regarding unauthorized disclosures of covert agents' identities (50 U.S.C. § 421). As the inquiry progressed, the Attorney General recused himself, delegating authority to the Deputy Attorney General, who appointed Patrick J. Fitzgerald as Special Counsel. A grand jury investigation commenced in January 2004.
On May 21, 2004, a subpoena was issued to journalist Matthew Cooper for testimony and documents related to two articles he wrote in July 2003. Cooper refused to comply and moved to quash the subpoena, which was denied by the District Court. A similar subpoena was later issued to Time, Inc., which also moved to quash but was denied. Both Cooper and Time were found in civil contempt for noncompliance. After negotiations, Cooper agreed to testify regarding a source who consented to the release, leading to the vacating of the contempt order.
On September 13, 2004, a new subpoena requested all documents related to conversations involving Cooper and sources discussing Wilson and her CIA affiliation, along with another subpoena to Time for materials related to Cooper's articles. Cooper and Time again moved to quash, but their motion was denied on October 7, 2004, and they were subsequently held in contempt for refusing to comply with the subpoenas.
On August 12 and 14, grand jury subpoenas were issued to Judith Miller for documents and testimony concerning her conversations with a government official about Valerie Plame Wilson and Iraqi uranium acquisition from July 6 to July 13, 2003. Miller refused to comply and sought to quash the subpoenas, but the District Court denied her motion and held her in civil contempt. Miller appealed the ruling, with co-appellants presenting four arguments for reversal:
1. They claimed that the First Amendment grants journalists a constitutional right to protect confidential sources from grand jury subpoenas.
2. They asserted an evidentiary common law privilege for journalists to conceal sources, arguing that even if this privilege were qualified, it had not been overcome by the United States.
3. They contended that their due process rights were violated by the Special Counsel's ex parte and in camera submission of evidence to the court.
4. They maintained that the Special Counsel did not follow Department of Justice guidelines for issuing subpoenas to journalists, which they argued warranted reversal of the contempt ruling.
The court found no basis for relief under the First Amendment, due process, or the DOJ guidelines, affirming the District Court's judgment. The Chief District Judge indicated that a reporter has no First Amendment protection when testifying before a grand jury regarding confidential information, referencing the Supreme Court's ruling in Branzburg v. Hayes, which rejected similar First Amendment privilege claims in a comparable context.
Petitioner Branzburg faced a subpoena to testify before a Kentucky grand jury regarding drug use and sales, following an article he published after two weeks of interviews with drug users. He moved to quash the subpoena, arguing that being compelled to disclose informant identities would harm his effectiveness as a journalist. The Kentucky courts denied his claim of First Amendment privilege. Similarly, petitioner Pappas, a Massachusetts television newsman, was subpoenaed after gaining access to the Black Panther Party headquarters under the condition of confidentiality. He refused to disclose information from inside the headquarters, claiming First Amendment protection, but the Massachusetts trial court ruled he had no constitutional privilege to withhold such information. Both Branzburg and Pappas sought certiorari from the Supreme Court. Additionally, the Court reviewed the Ninth Circuit's decision in Caldwell v. United States, which recognized a qualified testimonial privilege for journalists. In that case, a reporter claimed protection while investigating the Black Panthers amidst serious criminal allegations. All cases presented to the Supreme Court involved journalists asserting confidentiality for their sources, with no significant factual differences among them.
Sufficient allegations exist to justify a grand jury inquiry into whether one or both journalists received information about the identity of a covert U.S. operative from government employees who unlawfully disclosed it. In the Branzburg case, the Supreme Court rejected the notion of a First Amendment reporter’s privilege, emphasizing that the grand jury's authority to subpoena witnesses is essential to its functions. The Court established that the only testimonial privilege rooted in the Federal Constitution is the Fifth Amendment privilege against self-incrimination, explicitly refusing to create a First Amendment testimonial privilege for journalists that others do not possess. The Court asserted that the First Amendment does not protect a journalist’s agreement to conceal criminal conduct or evidence thereof, nor does it prioritize potential future news over the public interest in prosecuting crimes. It further stated that agreements to conceal relevant information about criminal activity serve little public policy interest. While acknowledging the press's right to withhold information, the Court clarified that this right does not exempt journalists from the duty to provide relevant information to a grand jury. No distinctions have been presented between the current case and Branzburg, affirming that the Supreme Court has definitively ruled that journalists are not exempt from testifying before a grand jury, regardless of any promises made to sources. This ruling remains unchallenged.
Appellants argue that the District Court erred by concluding that journalists subpoenaed to testify before federal grand juries do not have First Amendment protection, despite the Supreme Court's definitive ruling in Branzburg. They reference Justice Powell's concurring opinion and the case Zerilli v. Smith, asserting that these provide a basis for a constitutional privilege. The appellants claim that because the Supreme Court's decision was 5-4, the least encompassing justice's opinion dictates the precedent. They argue that when a justice is necessary for a majority, their separate opinion should define the majority opinion's scope. However, the court counters that Justice Powell's concurrence does not serve to redefine the majority opinion authored by Justice White, which stands as authoritative precedent rejecting the asserted privilege. The government contends that Justice Powell's opinion merely allows for a motion to quash subpoenas in cases where the journalist's testimony relates tenuously to the investigation or implicates confidential sources without a legitimate law enforcement need. Thus, Justice Powell's concurrence does not create a new privilege, but rather clarifies limited circumstances under which a journalist may seek protection.
The United States argues that Justice Powell, while agreeing with the majority on the absence of a constitutional privilege for reporters, emphasized First Amendment protection in cases involving bad faith investigations. Appellants counter that Justice Powell intended to provide reporters with greater protection than other citizens, but they fail to clarify this belief. The Constitution protects all citizens equally, and there is no indication that Justice Powell sought to prioritize journalists. The only federal constitutional testimonial privilege recognized is the Fifth Amendment privilege against self-incrimination. Justice Powell's agreement with the majority led to a decision that rejected First Amendment privilege for reporters testifying before a grand jury, applicable to the current case and indistinguishable from *Branzburg*. The appellants’ reliance on *Zerilli*, which suggests a reporter's privilege in civil cases, is misplaced, as this is not a civil case and does not alter the precedent established in *Branzburg*. The Supreme Court has not overruled *Branzburg*, and thus it remains binding authority.
Regarding the common law privilege, appellants argue for the recognition of a privilege under federal common law. They contend that significant changes since *Branzburg* warrant either an absolute or at least a qualified privilege for reporters. However, the court is divided on this issue, with Judge Sentelle opposing the existence of such a privilege, Judge Tatel supporting it, and Judge Henderson suggesting that it is unnecessary to address the question.
Privilege, if it exists, is not absolute and can be overridden with sufficient justification. Citing Judge Tatel's separate opinion, it is concluded that any applicable privilege has been overcome, negating grounds for reversal. The appellants argue that if their privilege is conditional, then due process is violated due to the Special Counsel and District Court's refusal to grant access to secret evidentiary submissions related to subpoena enforcement. This argument lacks merit, as the circuit has established that district courts can maintain grand jury secrecy through sealed or ex parte filings. The principle of grand jury secrecy is well-documented, with the grand jury serving as a buffer between the government and the populace, and its function relies on confidentiality. The historical precedent for grand jury secrecy spans over four centuries and is aimed at encouraging witness cooperation, preventing intimidation, and safeguarding the integrity of the indictment process. The appellants have not presented any compelling reasons to deviate from this established rule or substantiate their due process claims, relying instead on a case from another circuit that is outdated and factually distinguishable.
In United States v. Dinsio, 468 F.2d 1392 (9th Cir.1972), the court found that a defendant held in contempt for refusing to provide fingerprint and palm print exemplars was denied due process when the district court barred her from reviewing an ex parte affidavit that justified the grand jury's request. The Ninth Circuit later clarified that Dinsio had been superseded by subsequent rulings in United States v. Mara and United States v. Dionisio, which established that courts are not required to permit witnesses to challenge the reasonableness of grand jury requests during proceedings. The court emphasized that Dinsio was never the binding law of the circuit and reiterated that nothing mandates interrupting grand jury proceedings for such challenges.
The use of in camera and ex parte proceedings by the District Court, while possibly debatable under the general rule of grand jury secrecy, is supported by precedent in privilege analysis, particularly in cases involving the attorney-client privilege. The court noted the appropriateness of protecting grand jury secrecy in the context of potential reporter-source privileges.
Regarding the appellants' argument about noncompliance with Department of Justice (DOJ) guidelines for subpoenas issued to news media, the District Court deemed the guidelines non-enforceable but found that the Special Counsel had complied with them. The guidelines, outlined in 28 C.F.R. § 50.10 and the United States Attorney’s Manual, require Attorney General approval for media subpoenas, a requirement that was deemed irrelevant here since the Special Counsel had delegated authority from the Attorney General. The court ultimately affirmed the District Court's decision to maintain grand jury secrecy.
In criminal cases, subpoenas issued to the news media must be based on reasonable grounds indicating that a crime has occurred and that the requested information is crucial for the investigation, particularly concerning guilt or innocence. Subpoenas should not seek peripheral or speculative information (28 C.F.R. § 50.10(f)(1)). Efforts should be made to obtain information from alternative sources before issuing a subpoena (Id. at § 50.10(b), § 50.10(f)(3)). Subpoenas should focus on a narrow subject matter and time frame, avoiding large volumes of unpublished materials, and provide reasonable notice (Id. at § 50.10(f)(6)). Their usage should be restricted to verifying published information and surrounding circumstances that relate to its accuracy, except in exigent situations (Id. at § 50.10(f)(4)).
When contemplating a subpoena to the media, the government should negotiate with the relevant organization to balance the interests of the grand jury and the media, clearly communicating its needs and willingness to address media concerns (Id. at § 50.10(c)). However, these guidelines do not create legally enforceable rights for individuals, a position upheld by several federal courts. Specifically, courts have ruled that the Department of Justice (DOJ) guidelines serve only as internal directives for discretion in subpoena issuance, without conferring substantive rights upon media personnel (In re Special Proceedings, 373 F.3d 37, 44 n. 3; In re Grand Jury Subpoena American Broadcasting Companies, Inc., 947 F.Supp. 1314, 1322). The guidelines are not mandated by any constitutional or statutory provisions and do not allow reporters to enforce them through motions to quash subpoenas (In re Shain, 978 F.2d 850, 853). Differentiating from other cases, such as Morton v. Ruiz, the guidelines do not require public directives regarding privileges and benefits, thus limiting their applicability in contesting subpoenas.
The Supreme Court invalidated a Bureau of Indian Affairs attempt to impose an unpublished eligibility requirement on general assistance benefits, emphasizing that the publication requirement was designed to protect potential beneficiaries. However, this rationale does not apply to the current guidelines. Prosecutorial discretion is a fundamental aspect of the executive function, and courts typically refrain from reviewing the exercise of this discretion. Federal prosecutors possess broad authority to enforce criminal laws as they act as delegates of the President, who is tasked with ensuring the faithful execution of laws. The guidelines in question do not confer enforceable rights upon individuals but serve to direct prosecutorial discretion. Consequently, there is no need to assess the Special Counsel's adherence to the guidelines, leading to the affirmation of the District Court's decision.
