Should Reporters Go to Jail for Protecting Sources from the Valerie Plame Grand Jury?:
The Unfolding Scandal over Who Revealed the CIA Agent's Identity Raises First Amendment Issues

By JULIE HILDEN
julhil@aol.com
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Friday, Aug. 20, 2004

Lately, the scandal over the government leak that revealed the identity of CIA operative Valerie Plame to the media has only grown. Meanwhile, its legal ramifications have grown, too.

The leak itself violated federal criminal laws - as John Dean discussed in an earlier column for this site. Now, the investigation of that leak is testing the Constitution itself - in particular, the First Amendment.

Recently, two journalists, Time magazine reporter Matthew Cooper and NBC Washington Bureau Chief Tim Russert Earlier, made headlines when they challenged subpoenas issued to them by a special grand jury investigating the leak. But Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia ruled against them, based on Supreme Court precedent. And he did so even though, according to his opinion, the grand jury may "delve into alleged conversations each reporter had with a confidential source."

Russert decided to testify, with NBC issuing a statement that his limited testimony did not reveal any information "learned in confidence." But Cooper is still holding out, has been held in contempt of court, and is facing jail time - pending an appeal.

Meanwhile, on August 13, the New York Times revealed that the grand jury had also subpoenaed one of its reporters, Judith Miller. The Times has vowed to fight the subpoena; but given Chief Judge Hogan's decision, there is little doubt that it will lose at the district court level. In addition, it has been reported that Walter Pincus of the Washington Post has also been subpoenaed - and the Post, too, intends to fight the subpoena. (By the time this column appears, other reporters, too, may also have been subpoenaed.)

To make good on their vow, the Times and Post lawyers would then have to appeal - all the way up to the Supreme Court, if necessary. They could well be joined by other news organizations whose reporters have yet to be subpoenaed.

After all, according to the Washington Post, "two top White House officials called at least six Washington journalists" in what appears to be a campaign to destroy Plame and her husband. Among them was syndicated columnist Robert Novak - who originally printed the leak. As of this writing, it is not yet clear if Novak, too, has received a subpoena - but if he has not yet, he is very likely to.

Could such an appeal eventually succeed? Perhaps - but only if the Court can be convinced to overrule, or dramatically modify, a key 1972 First Amendment decision.

The Underlying Controversy: A Vicious Act of Political Revenge Via the Media?

Before addressing the First Amendment questions raised here, it's worth briefly going over the background of the scandal itself.

On July 6, 2003, the New York Times published an article by former U.S. ambassador Joseph Wilson charging that President Bush, in his 2003 State of the Union address, had "twisted" intelligence relating to Iraq's purported nuclear program. This weighty charge came in the midst of the scandal surrounding the failure of the Administration to unearth any weapons of mass destruction in Iraq.

A little over a week later, on July 14, Novak published a column identifying Wilson's wife, Valerie Plame, as a CIA agent. He implied that "two senior [Bush] administration officials" were his sources for the information.

Their disclosure may have put Plame's very life in jeopardy - and might also have endangered her CIA contacts. (For this reason, in my view, Novak has gotten far too little flak for his decision to publish - and the same is true for the media outlets that published his column, which included the Washington Post.)

After much delay, in December 2003, the Department of Justice finally appointed a special counsel to investigate the matter. (For more detail on the special counsel, Patrick Fitzgerald, see John Dean's prior column.) And when the special counsel convened a grand jury, the reporters' subpoenas began to issue.

The Branzburg Decision, and Chief Judge Hogan's Ruling

This brings us to Chief Judge Hogan's decision -- holding the subpoenas enforceable even if reporters were required to tell the jury information about confidential sources. His decision was based on the Supreme Court's 1972 ruling in Branzburg v. Hayes.

Branzburg held that the First Amendment does not allow reporters to resist a grand jury subpoena. In addition, it suggests that this general rule applies even if it means that appearing before the grand jury would require journalists to reveal confidential sources. In a nutshell, Branzburg suggested that there is no place for the First Amendment when it comes to grand jury questions to reporters.

Grand Jury Secrecy Does Not Defeat the First Amendment Argument

At first blush, this holding might seem reasonable. Grand jury proceedings are secret - and breaches of that secrecy are illegal, and can be sanctioned. So can't reporters reveal sources to grand juries without betraying their confidential sources very much - trading one kind of secrecy for another?

Unfortunately, the answer is no. For one thing, leaks from grand juries, especially in high-profile investigations like this one, do occur.

For another thing, even without a leak, sources' identities may well be betrayed - again, especially in a case like this one. If a particular administration official gets indicted by this grand jury, he or she - and the public -- can be pretty sure it's because a reporter gave up his identity (just as the official, ironically, gave up the identity of Valerie Plame.)

And from the point of view of many First Amendment thinkers - though not of the Branzburg Court - reporters' need to protect confidential sources is a very big deal indeed. It is intimately related both to the freedom of speech, and the freedom of the press.

After all, the press is supposed to function as the Fourth Estate in our society - the watchdog of the government and other powerful institutions. But without confidential sources, it's hard for it to do that in certain crucial cases.

Confidential sources are typically insiders at these very institutions, or at least persons who are vulnerable to them - and they are reasonably afraid of recriminations if their anonymity is not preserved. If the person known as Deep Throat - who has still not come forward - had thought that Woodward and Bernstein would have to give up his anonymity, there might never have been a Watergate investigation.

More broadly, how can the press function as a check on - and watchdog of -- the government, if it cannot protect confidential government sources when such protection is merited?

Confidential sources can be integral to making sure the press is well-informed on issues crucial to our democracy. And whether the press is well-informed, in turn, affects how informed we all are.

So those who support First Amendment rights ought to care deeply about the protection of confidential sources. They may not maintain that this protection has to be absolute. But they should favor at least making the revelation of sources' identity difficult - not virtually automatic, any time a subpoena is issued.

Why Branzburg Should Be Overruled or Modified

In other words, the need to protect confidential sources should at least sometimes trump the investigative needs of the grand jury. After all, the grand jury has broad power to subpoena virtually anyone. Shouldn't reporters with confidential sources be last - not first - on the list? Or, if possible, shouldn't they be left off the list entirely?

That leads to a key question: When, exactly, should First Amendment press rights trump the grand jury's need to know?

Branzburg's answer: Virtually never. (The exceedingly rare exception it established is in the event a bogus subpoena with no "legitimate law enforcement purpose.")

Branzburg's view was that reporters' interests don't really count at all when subpoenas are legitimate, because prosecutors' interests in law enforcement always so heavily outweigh the interests of the press.

By ruling that way, the Branzburg Court went too far. In effect, it read the First Amendment out of the Constitution.

A Better Solution than Branzburg's: A Balancing Test

In my opinion, the proper test for whether a reporter must answer a given grand jury question ought to balance law enforcement needs against the need for source confidentiality.

I can imagine a case when a confidential source must be revealed - for instance, to prevent great harm. But I can also imagine many cases when a confidential source should be protected - when allowing anonymity in such circumstances will serve a strong social good, and encourage sources to rely on reporters' promises of confidentiality and anonymity in the future.

So I believe a balancing test is the right answer. Perhaps the test could be coupled with what the law calls an "exhaustion" requirement - forcing the grand jury to try to get the information it wants from everyone under the sun except reporters, before it resorts to subpoenaing reporters. (This kind of requirement is often imposed in civil actions - such as libel suits in which reporters rely for their allegedly libelous claims on confidential sources.)

Might the Supreme Court Overrule Branzburg?

Attorneys for the reporters subpoenaed in the Plame case tried to convince Judge Hogan that Branzburg allows just this kind of balancing test. But in a persuasive opinion, Hogan countered that Branzburg is much more absolute - and pro-subpoena enforcement - than that. So for such a test to exist, it seems Branzburg would have to be overruled - or at least modified, to render its pronouncements less absolute.

Could that happen? It's certainly possible. And it's therefore well worth the Times's and Post's making good on their vow to fight the subpoenas, to take this issue all the way up to the Supreme Court if necessary.

The five-Justice majority that decided Branzburg was made up of Justices White, Burger, Blackmun, Powell and Rehnquist. (Powell also wrote a separate concurrence.) In dissent were Justices Douglas, Stewart, Brennan and Marshall. Even then, if Justice Blackmun - unusually conservative on this issue -- had switched sides, the Court's ruling would have been different.

On the current court, a five-Justice majority in favor of a balancing test- which is ultimately a moderate, compromise solution to this issue -- might be easier to assemble. Certainly, strong First Amendment Justices Souter, Ginsburg, Breyer, and Kennedy would likely be in the majority.

Who would be the fifth majority justice? Don't count out Justices Thomas or O'Connor as possibilities. Justice Scalia, too, may be convinced. Only Chief Justice Rehnquist - who already sided with the grand jury, and against the press, on this one - seems absolutely certain to adhere to Branzburg.

A Balancing Test Might Still Require Some Testimony By Reporters

What if the Court did modify or overrule Branzburg - and create a balancing test such as the one I have suggested? Ironically, even if the Times, with its appeals, were to win this war on behalf of itself and all of the press, it could still lose this one battle. Reporters such as Judith Miller might still have to reveal confidential sources with respect to the Plame grand jury.

Consider how the balancing test might play out:

First, let's look at the government's interest in getting the reporters' testimony. There's a real law enforcement need to find out who committed this crime. And it doesn't seem that the perpetrators' identities have been revealed in the discovery the Special Counsel has already received from the White House. So it is likely that only the subpoenaed (or soon-to-be-subpoenaed) reporters know who exposed Plame as a CIA agent.

Second, let's look at the First Amendment interest here. The confidential sources were likely willful perpetrators committing a federal felony - not morally-compelled whistleblowers who violated government secrecy rules along the way. And that's a very important distinction.

We need whistleblowers for the press to function. Deep Throat, depending on who he or she was, might have broken some laws, or violated attorney-client privilege, to talk to Woodward and Bernstein. But if so, it was to serve the greater social good - revealing corruption at the highest levels.

What we don't need is willful perpetrators like those who seem to have been behind the Plame leak. What social purpose was served by outing a CIA agent? Here, the sources seem to have served not the social good or the functioning of democracy, but a personal vendetta - punishing former Ambassador Wilson by putting his wife in danger. And it's not just Valerie Plame who was placed in jeopardy: It's all those whom she protected in her service as a CIA agent.

The sources' disclosure was the crime here, and that is exactly what is being investigated. The sources didn't report a crime by speaking out - they committed one by talking to reporters. So protecting the disclosure, protects the crime.

Meanwhile, it's worth noting, too, that the journalists who published Plame's CIA agent identity may well have committed the same crime as their sources (unless there is a First Amendment exception to the criminal law). Their choice to publish the information also arguably aided and abetted their sources' crimes (again, possibly subject to a First Amendment exception).

With all this criminal activity either marring or virtually replacing the reporter-source relationship, where's the First Amendment value in all this?

Another, reason the First Amendment interest here is relatively weak is that instead of confiding in a few trusted reporters - Deep Throat-style - the confidential sources themselves apparently did little to protect their own confidentiality. Indeed, they bandied about their information to what appears to have been at least six separate journalists in their campaign to ruin Plame and her husband.

That's not a confidential source-reporter relationship; it's a broad-scale attack campaign.

For our democracy to work, sources do need to be able to trust reporters. But we don't need to support criminal smear campaigns that may cause great harm to innocent people with the very strongest of First Amendment protections.

So suppose the Court were to overrule Branzburg, and endorse and apply a balancing test. For the reasons I've cited the grand jury subpoenas still might be held enforceable. But in that instance, the subpoenas would be enforced then for the right reasons - because a balance had been thoughtfully stuck, not just because of Branzburg's knee-jerk assumption that prosecutors should get whatever they want when they are investigating.

For the same reasons I believe the First Amendment claim here is not very strong, if I were a journalist with confidential sources in this case, I wouldn't be doing prison time for this one. The journalists were apparently manipulated into aiding an attack on a CIA agent. Now, will they be manipulated right into jail to protect the attackers? Their sources, by all accounts, are perpetrators - not whistleblowers.

If Cooper and others do end up in jail, they may want to mull over, while serving time, whether they are really serving the First Amendment by protecting their sources. They may also want to ask themselves who has really been in the driver's seat here, throughout this scandal and the ensuing investigation: The press, or the source? They also should not call themselves First Amendment martyrs: accomplice is a better word.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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