Saturday, April 02, 2005

CJR: Attack At The Source: Why the Plame case is so scary

and who is "Scooter" Libby?*

Columbia Journalism Review
Attack At The Source
Why the Plame case is so scary
Douglas McCollam

In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal, spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish. The resulting article, THE HASH THEY MAKE ISN'T TO EAT, ran in the paper’s November 15 edition. In it Branzburg, a graduate of Harvard Law School and Columbia University’s Graduate School of Journalism, revealed that he had changed the men’s names to protect their identity. The article was meant, Branzburg’s lawyer would later say, to inform readers about the views of “hippies and dissidents” who were becoming an increasingly influential presence in American life. For their part, “Larry” and “Jack” said the main reason they let Branzburg do the story was to “make the narcs mad.”

Mission accomplished. Shortly after the story ran, Branzburg was subpoenaed by the Jefferson County district attorney to appear before a state grand jury investigating the local drug trade. He was asked twice to name the men he had observed in possession of marijuana. He refused to answer and was held in contempt of court. Undaunted, Branzburg later wrote another exposé, this time detailing pot use in Frankfort, Kentucky’s capital city. He was again hauled before a grand jury and asked about the criminal acts he had observed. He again refused to testify.
During the next two years Branzburg’s appeal wound its way up to the United States Supreme Court and became the lead case in a series of disputes concerning what was then called the “newsman’s” privilege: the right of reporters not to reveal the sources for their stories, even if those sources were observed engaging in criminal conduct. It was the first time the Court had squarely faced the issue, and in vigorous questioning of Branzburg’s lawyer, Edgar Zingman, the justices struggled to outline the scope of the privilege they were being asked to recognize.

Wasn’t Branzburg asking for the right to exist above the law? Justice Potter Stewart wondered. And, if the privilege was based on the First Amendment’s free speech guarantee, couldn’t any citizen claim the same right to refuse to testify? Who qualified for the privilege? wondered Chief Justice Warren Burger. Would it cover a private citizen who investigated a crime and then wrote a letter to the editor about it? How about pamphleteers? Would the authors of the Federalist Papers have qualified as “newsmen”?

Zingman bobbed and weaved, arguing for a broad privilege unless there was cause to believe the reporter had specific information about ongoing threats to national security, or a person’s life or liberty, and there was no other way to obtain the information. The Court rejected the argument. In a 5-4 decision, the Court found that there was no constitutional basis for a reporter to refuse to answer questions before a grand jury about sources, provided the investigation was in good faith. “From the beginning of our country the press has operated without constitutional protection for press informants,” Justice Byron “Whizzer” White wrote for the majority, “and the press has flourished.”

I thought about White’s conclusion as I sat on a wooden bench in federal court last December, rereading the decision and waiting for arguments to begin in what many consider to be the most important test case on press freedoms since Branzburg was handed down more than thirty years ago.

Was the press still flourishing? Just a few feet away Judith Miller, of The New York Times, and Matthew Cooper, of Time magazine, stood nervously chatting with small knots of supporters in a courtroom well stocked with Washington’s fabled media elite — many of whom appeared almost as antsy as Miller and Cooper. Both reporters were appealing prison sentences of up to eighteen months for refusing to testify before a federal grand jury investigating who in the Bush administration revealed the identity of the CIA agent Valerie Plame to the press, presumably in violation of the Intelligence Identities Protection Act. (Conspicuously absent was Robert Novak, the syndicated columnist who actually outed Plame in print.) Though Miller’s and Cooper’s cases have drawn the most attention, they are hardly the only reporters recently to run afoul of the law.

  • In Rhode Island the investigative reporter James Taricani is serving six months of house arrest for refusing to say who gave him an incriminating videotape made in connection with a corruption investigation.

  • In Washington a federal judge is holding five reporters in contempt for refusing to name their sources in stories about Wen Ho Lee, the nuclear scientist named by the press as suspected of passing secrets to the Chinese.
  • In California FBI agents raided the home of Victor Conte, not to gather evidence for the government’s case against Conte’s BALCO labs, the company alleged to have provided designer steroids to star athletes, but to discover who leaked grand jury testimony from the case to the San Francisco Chronicle.

In addition to leading the investigation into the Plame case, Special Counsel Patrick Fitzgerald is also seeking the phone records of Miller and her fellow Times reporter Philip Shenon in an investigation into an Islamic charity suspected of being tied to terrorism.

The Justice Department has also been asked to launch an investigation into who leaked details of a secret satellite program, code-named “Misty,” to The Washington Post.

When those cases are viewed together, many see them as constituting a moment of peril for journalism. Reporters have never been popular, but there has long been a sense that most Americans understood, in the words of Justice Stewart, that though the press could be “abusive, untruthful, arrogant, and hypocritical,” it was nonetheless necessary to the health of the republic. No more. The reason given for this attitudinal shift depends largely on where a person stands on the ideological spectrum. Liberals see the change as an inevitable result of the reactionary acid drip that has been eroding public esteem for the press since at least the civil rights movement. Conservatives view the switch as an overdue comeuppance for a smug bunch of elitists who appointed themselves as a praetorian guard of American civic life. A more neutral perspective may chalk up the change to a predictable backlash to the proliferation of invasive media in the information age. Whatever the reason, all sides agree that public regard for journalism is at a low ebb. As Ken Auletta recently put it in a piece in The New Yorker about how the White House views the media, the press is now seen as “simply another interest group, and, moreover, an interest group that’s not nearly as powerful as it was.”

Part of the frustration for critics of the press has historically been its thick insulation from liability. First Amendment guarantees make libel actions costly and difficult to win, particularly for public figures. But as Branzburg made clear, those First Amendment protections may guard the final product but don’t necessarily extend to newsgathering. In the 1990s, corporations began exploiting that vulnerability, challenging journalists not so much on the truth of what they wrote or broadcast, but over how they obtained their information. Thus reporters might find themselves accused of “tortious interference with contract” for “inducing” an employee to breach a confidentiality agreement, or sued for fraud if they lied on job applications to go to work for a company undercover. These claims were not slam-dunk winners in court, but for a press that increasingly was a small appendage of a corporate conglomerate, the danger of having to record large judgments on a balance sheet had the desired chilling effect. The key to the threat, of course, was the conviction that the public (read jurors) hated the media even more than it hated big corporations.

In the new century, government and private lawyers seem to have taken their cue from corporations, and begun their own attacks on newsgathering. In particular, they have homed in on the right of reporters to keep sources confidential. “This is by far the most activity I’ve ever seen attacking journalists’ sources,” says Nathan Siegel, a Washington lawyer who represents several media companies. “If you’d told me five years ago I’d be spending the majority of my time fighting over whether reporters could keep sources confidential, you could have knocked me over with a feather.”

Not everyone is clanging the alarm. Jack Shafer, the media critic for Slate, thinks the current run of cases are significant but have received inflated coverage because they involve a lot of prominent Washington reporters. “There is a little bit of hysterical nonsense going on here,” says Shafer. “The fact is, prosecutors demand sources all the time.” Geoffrey Stone, a law professor at the University of Chicago, says that by not testifying about an illegal leak Miller and Cooper are trying to put themselves beyond the reach of the law. “There is no legitimate interest in shielding criminal conduct,” says Stone. “It’s an awkward case to be asserting a privilege on.” Bob Woodward, perhaps the preeminent investigative reporter of his time, believes in supporting journalists who are protecting sources. Yet he sees the use of confidentiality in this case — to hide the sources who identified Valerie Plame — as a weak reed to lean on. “I use confidential sources more than most anyone,” Woodward concedes, “but it has to be worth the risk involved. I don’t think outing Plame was worth the risk.”

To Judith Miller, however, focusing on the significance of the Plame leak misses the larger issue of whether the government should be able to compel a reporter’s testimony about sources. “I’ve always been the same reporter,” Miller told me. “I’m fanatical about protecting sources because I think they are crucial to reporting and investigative reporting in particular.” In this she has the clear backing of the Times brass. “We didn’t choose this fight, but we’ve got a reporter who feels honor bound and there is a risk she could go to jail,” says Bill Keller, the Times’s executive editor. “That’s not something we can stand by and watch.” Publisher Arthur Sulzberger Jr. is even more adamant, placing the Plame case alongside other landmark legal stands the paper has taken on freedom of the press. “We know Washington works on the basis of confidential sources,” Sulzberger says. “If we can’t protect those people we’ll be filling our paper with press releases and agency reports.”

OUT OF AFRICA Of the current cases winding through the justice system, it is Plame that poses the most immediate threat to journalism. To understand why, a quick review of the background of the case is useful. On July 6, 2003, former Ambassador Joseph Wilson (Valerie Plame’s husband) wrote a long op-ed piece for The New York Times critical of the Bush administration. In February 2002 Wilson had been sent to Africa by the CIA to check out information that Saddam Hussein had tried to buy enriched uranium from Niger to help make a nuclear bomb. The charge had been central to the administration’s case for a preemptive invasion of Iraq. But in his piece, “What I Didn’t Find in Africa,” Wilson largely debunked the story and essentially accused the administration of manipulating the evidence to help justify the invasion.

A week later the syndicated columnist Robert Novak, thought to have close ties to the administration, outed Plame in a column titled “The Mission to Niger.” The piece, which claimed that Plame had chosen her husband for the mission, was widely seen as payback by the administration against Wilson. (The column actually said several laudatory things about Wilson.) Figuring out what Novak has or has not told the grand jury about his sources on the story, identified in his piece only as “two senior administration officials,” is the Washington press corps’ favorite new parlor game. Novak has refused to speak on the matter and turned down my request for an interview, as did his lawyer, James Hamilton.

In the days following Novak’s column, a cry went up that not only had the Bush administration shivved a legitimate critic, but it had broken the law to do it. Under the Intelligence Identities Protection Act, a person who learns the identity of a covert agent like Plame from classified information can get ten years in jail for intentionally disclosing the agent’s identity. The law specifies that the leaker must have had access to classified information about the agent and knew that the agent was a covert operative. Despite those caveats a drumbeat began for a criminal investigation and the appointment of a special prosecutor. Among those baying the loudest for blood, it should be noted, were many of the very news organizations now at odds with the investigation.

On December 30, 2003, the Justice Department appointed Patrick Fitzgerald, the U.S. attorney in Chicago, as special counsel to investigate the Plame leak. Fitzgerald, forty-three, spent thirteen years in the U.S. attorney’s office in New York, prosecuting primarily organized-crime and terrorism cases. At the time of his appointment in Plame, Fitzgerald was already locked in a dispute with the Times over whether Philip Shenon, one of its reporters, had tipped off a Chicago-based Islamic charity in December 2001 about an impending FBI raid while reporting on a story. In September 2004, Fitzgerald told the Times he was seeking Shenon’s phone records in connection with that investigation as well those of Judith Miller on a related matter. “It’s really curious, if not suspicious, that the same prosecutor is going after confidential sources in a case that was dormant for two years until Plame perked up,” says George Freeman, the Times’s assistant general counsel.

In the months following his appointment in Plame, Fitzgerald conducted a series of interviews with top executive branch officials, including Condoleezza Rice, Colin Powell, Karl Rove, *I. Lewis “Scooter” Libby, and ultimately the president and vice president. He also employed an unusual tactic: he had government officials sign waivers of confidentiality regarding conversations they might have had with reporters regarding Plame. In the spring and summer of 2004, Fitzgerald issued grand jury subpoenas to at least four journalists who had reported on various aspects of the Plame leak: Miller, Cooper, Walter Pincus of The Washington Post, and Tim Russert of NBC News. A fifth reporter, Glenn Kessler of the Post, was not formally subpoenaed, but was asked to talk with Fitzgerald regarding Plame. Novak will not confirm or deny receiving a subpoena.

To those involved in the investigation it became clear that Fitzgerald was focused on Scooter Libby, Vice President Cheney’s chief of staff, as a likely source for the Plame leak. In an apparent effort to remove the crosshairs from his back, Libby released several reporters from their pledges of confidentiality. Russert and Kessler then agreed to give limited testimony to Fitzgerald, simply confirming that they had not discussed Plame in certain phone calls with Libby in July. Pincus also gave testimony exonerating Libby, after a different source on Plame okayed his talking with Fitzgerald. Matt Cooper talked with Fitzgerald at Libby’s urging, but balked at providing additional evidence about other sources when he was served with a second subpoena. Judith Miller, who had reported on the Plame leak but had never written a story, refused to give any testimony at all. In October, citing Miller’s and Cooper’s refusals, U.S. District Court Judge Thomas Hogan found both reporters in contempt and sentenced them to up to eighteen months in jail unless they complied with the subpoenas.

EVERY MAN’S EVIDENCE Two months later at their appeal, Miller and Cooper were both represented by Floyd Abrams, the New York attorney widely viewed as the dean of the First Amendment bar. But on this day Abrams wasn’t accorded much respect by the three-judge panel hearing the appeal. In particular, Judge David Sentelle repeatedly challenged Abrams to distinguish Miller’s and Cooper’s refusals to testify before the grand jury from Paul Branzburg’s similar refusal thirty-five years earlier. Abrams attempted to parry the challenge, noting that there had been significant developments in the reporter’s privilege since Branzburg. Sentelle appeared unimpressed. Judge David Tatel was less overtly hostile, but like Justice Burger in Branzburg, seemed to struggle with the question of who would qualify for a reporter’s privilege. If an Internet blogger was illegally leaked nuclear secrets and posted it on her Web site, would she be entitled to refuse to testify about her source? the judges wondered. Abrams soft-shoed a bit before conceding that, under the privilege he was seeking, she would. A collective flinch rippled through the establishment media in the gallery.

In Branzburg, the central question was whether the First Amendment’s guarantee of freedom of the press could be extended to protect the identity of those who give the press information. The answer was no. But a brief concurrence written by Justice Lewis Powell, the crucial fifth vote in the case, held out the hope that future developments in the law might give rise to a court-recognized privilege. And First Amendment advocates contend that the “developments” Powell foresaw have come to pass. In 1972 when Branzburg was decided, only seventeen states had reporter “shield laws,” protecting reporters from being forced to out their sources. Now thirty-one do, plus the District of Columbia. Eighteen other states have controlling cases that recognize some form of the reporter’s privilege (Wyoming is the lone holdout).

Moreover, during the past three decades, courts have proven willing to recognize that certain kinds of communication should be shielded from discovery. The most recent example came in 1996 when the Supreme Court ruled that communications between a patient and a therapist or social worker were privileged under federal law. Some see that as directly analogous to the reporter-source privilege.

But as a general rule courts believe they have the right to “hear every man’s evidence,” and privileges against testifying are not favored in the law. Over time only a few such exemptions have been endorsed, including the attorney-client privilege, the doctor-patient privilege, the priest-penitent privilege, the spousal privilege, and, most recently, the therapist privilege. The Constitution also forbids compelling people to testify against themselves.

In Plame, Miller and Cooper argue that the reporter’s privilege should now be added to that list, but fashioning a reporter’s privilege presents special challenges. Perhaps the most obvious model is the attorney-client privilege. But this privilege had a long pedigree before being formally recognized in law. In addition, the attorney-client privilege belongs exclusively to the client. If he or she waives the privilege, the attorney can be compelled to testify. In the Plame investigation, government lawyers sought to nullify the reporter’s privilege claim by getting preemptive waivers signed by potential sources. The reporters (quite rightly) viewed these form waivers as bogus and coerced — Who wouldn’t sign a waiver with a prosecutor breathing down his neck? — but Miller and Cooper are arguing that as a legal matter, a waiver by the source doesn’t really matter, that the privilege belongs to the reporter.

This position, which squares with many reporters’ idea of the privilege, would seem to make the reporter’s privilege more akin to the husband-wife privilege. There the right of confidentiality also resides with both parties to the information, and is grounded more in respect for privacy rights and the institution of marriage. It seems unlikely the federal courts will grant reporters and sources similar deference. All the other recognized privileges involve inherently private information given to members of accredited professions. Journalism, by comparison, trades in public information and is less a profession than an activity in which anyone can engage. As the courts in both Branzburg and Plame have asked, Who qualifies as a “journalist” for purposes of the privilege? Some First Amendment lawyers I spoke with see the issue as a red herring. “It’s a much simpler issue than people make it out to be,” says Ted Boutrous, a Los Angeles lawyer who represents ABC News and other media clients. “For years state legislatures have been developing this privilege and it’s never turned into a big problem.” Judith Miller agrees: “It’s an issue that courts and legislatures can decide. It shouldn’t negate the privilege just because people may disagree about it. That’s looking at the tail as opposed to the animal.”

Nonetheless, the difficulty in crafting the reporter’s privilege has led most states to grant only qualified protection to reporter-source communications. In general, all the privileges have certain exceptions, but a qualified privilege more closely resembles a straight balancing test — between the privilege and the state’s or a citizen’s interest in obtaining information — than a firm exemption. It would be as if a court could say, in effect, “Hey, we believe in the attorney-client privilege, but this was a really heinous crime, so I’m afraid your lawyer is going to have to testify against you.” Floyd Abrams argues that a qualified privilege is an arbitrary privilege, and thus isn’t enough. He asked the court to recognize an unqualified privilege, one vested with reporters, not with sources. This led Judge Sentelle to observe that Abrams was trying to give journalists a kind of superprivilege, stronger even than those afforded to lawyers, doctors, priests, or therapists. Many reporters and First Amendment advocates feel the chance of a court’s recognizing that kind of privilege is nil. “I’m not totally opposed to a reporter’s privilege,” says Michael Kinsley of the Los Angeles Times. “What upsets me is the absolutist position the New York Times people take. Arthur and Bill deny they are absolutist, but I’ve never seen any suggestion from them of what circumstances they could imagine the privilege not being granted.”

PRIVATE ACTS, PUBLIC CONSEQUENCES One concern about Plame I heard often was that it represents a breakdown of a tacit post-Branzburg truce between prosecutors and reporters that the government wouldn’t go after reporters’ sources. There is concern that the tactics used by Fitzgerald will be replicated by lawyers in other cases. That’s already happened in at least one instance. In October Thomas Connolly, a Washington lawyer representing the former army scientist Steven Hatfill, struck an unusual deal with the Department of Justice. Connolly submitted a list of about 160 news stories concerning the government’s investigation of Hatfill in connection with the anthrax letter attacks of 2001 and asked that waivers of confidentiality be given to potential sources for the stories. The waivers were reportedly circulated to more than a hundred people in the FBI and elsewhere. “I worry that if those kinds of waivers become commonplace tools of the government or employers it could potentially be a serious impediment for getting people inside large institutions to talk,” says Bill Keller of the Times. For his part, Connolly says he’s not after the reporters, but adds that he thinks reporters in recent years have far too often served as adjuncts to government power instead of acting as a check upon it. “In some regards the press is as bloated and arrogant as the institutions they are covering,” says Connolly. The lawyer says he plans to subpoena about a dozen reporters to testify about their sources in the Hatfill investigation.

Hatfill’s case against the government was brought under the Privacy Act, a 1974 law meant to prevent government agencies from releasing personal data about private citizens. Though the Plame leak has had more publicity, some First Amendment specialists and reporters think the Privacy Act cases pose a more meaningful long-term threat to newsgathering. In addition to Hatfill’s suit, the Privacy Act is being used by Wen Ho Lee to sue the government. In that case five journalists have been found in contempt for refusing to divulge their sources. Walter Pincus of The Washington Post, who has been served subpoenas in both the Plame and Wen Ho Lee matters, says the Privacy Act is being used improperly as an alternative for those who can’t win libel actions. Wen Ho Lee “was not libeled, and what we printed was accurate and he’s pleaded guilty,” says Pincus. (Lee pleaded guilty to a single count of illegally copying nuclear data.)
Brian Sun, Lee’s lawyer, says that despite the guilty plea, many allegations made against Lee, reported principally in stories written by Jeff Gerth and James Risen in The New York Times, were inaccurate. (In 2000 the Times ran a lengthy “Editors’ Note” saying aspects of its Wen Ho Lee coverage were flawed.) Like Connolly, Sun says he’s not really after the reporters, just the people who gave them information. But also like Connolly, Sun thinks the press was irresponsible regarding his client.

Needless to say, reporters see matters differently. Bob Drogin of the Los Angeles Times, one of the reporters held in contempt in the Lee case, thinks the way the law is being used in the Hatfill and Wen Ho Lee matters raises troubling questions. “Using the Privacy Act to get reporters to reveal their sources is a very insidious assault on the First Amendment,” Drogin says. “It’s not what Congress intended.” Drogin believes that if Wen Ho Lee’s suit succeeds, it could impact every police reporter who wants a suspect’s information. “It wouldn’t be a ‘chilling effect,’” Drogin says, “It would be a blizzard.”

THE ARMY YOU'VE GOT Though the Privacy Act cases will grind on for years, the Plame case should come to a head much sooner. On February 15, a three-judge panel of the D.C. circuit court rejected Miller’s and Cooper’s appeals. They were poised to ask for a rehearing from the full court of appeals and, failing that, to try to take the case to the Supreme Court (four justices must agree to take the case). That’s a prospect many in journalism view with alarm.

In fact, among the more than two dozen reporters, lawyers, and editors I talked to for this article there was a real concern that, far from enhancing the reporter’s privilege, the Plame case could put a stake through its heart. In part this stems from the seedy particulars of the story itself. Like the porno king who must be transformed into a First Amendment martyr, there is a sense that the Plame outing through Novak by his sources was the kind of sleazy Beltway maneuver that represents the worst use of confidential information. Moreover, as in Branzburg, any reporters getting the leaks may have directly witnessed a crime being committed, the hardest situation in which to assert a privilege. Nonetheless, with Miller and Cooper losing their appeal and facing a year and a half in jail, their publishers are forced to defend them. “It’s not like we’d have a lot of alternatives,” the Times’s counsel George Freeman told me before the appeals court decision was handed down.

Though reluctant to come right out and say so publicly, it is clear that many reporters and press advocates are upset that the Times has allowed Plame to develop into a potential seminal test of the reporter’s privilege. (Cooper and Time get a pass, because he initially tried to work with Fitzgerald.) The desire to avoid this outcome seems to have played a role, for example, in how The Washington Post dealt with the Plame investigation. Though neither Walter Pincus nor Glenn Kessler were prepared to testify about confidential communications, the paper worked to defuse the impasse with the special prosecutor and was willing to be somewhat flexible in its approach to answering the subpoenas. For example, after his source on Plame (not Libby) authorized him to talk to Fitzgerald, Pincus agreed to give a deposition in which he confirmed the time, date, and length of his conversation with the source but would not reveal the source’s identity. In general, Pincus says, privilege or no privilege, reporters should calibrate carefully before making promises of confidentiality. “I feel very strongly that we ought to distinguish between information that is meant to embarrass someone and is not attributed, and important classified information that could lose your sources their jobs or get them prosecuted,” says Pincus. Woodward, an assistant managing editor at the Post, agrees that confidential sources should be used only for important matters and clearly thinks the Plame matter didn’t meet that test. “This is not the Pentagon Papers,” Woodward dryly observes. “It’s not the case you’d choose to make law on.”

By contrast, in our interview Arthur Sulzberger directly invoked the Pentagon Papers case in justifying the Times’s hard stand in Plame. And if others are put out with Miller and the Times, it’s just as clear that Miller and the Times are less than thrilled with the tepid support they received from the Post, NBC — and Novak, who has refused any public comment on the case. “Every journalist has to live with his own conscience on this issue,” Miller says. “I don’t think it is helpful to divide the media at this point by criticizing others . . . . I’m not going to discuss what other people have decided to do.” Her lawyer is a bit more blunt: “People are right to be worried, but if they’re vexed, I’m vexed a bit by all the journalists who won’t stand with us,” Floyd Abrams says. “We’d have a lot stronger case right now if we had six in the dock instead of two.”

Sulzberger declined to “point fingers” at other media organizations, but said fear of losing the case was not a good reason not to fight it. “If you don’t stand for what you believe in, don’t risk a decision because you think you might lose, I think, quite frankly, that is a short-sighted approach.” For his part, Bill Keller says he’s not an absolutist on the reporter’s privilege and concedes that the facts in Plame aren’t ideal, but cops a line from Defense Secretary Donald Rumsfeld to explain the paper’s position: “Hey, you go to war with the army you’ve got,” Keller says.

While among First Amendment lawyers there is a lack of enthusiasm for Plame as a test case, there is also a divide over whether it will necessarily go to the Supreme Court and be precedent-setting. With the Court of Appeals reaffirming that there is no reporter’s privilege, the Supreme Court might be happy to take a pass, as it has done on several other post-Branzburg privilege cases. Since, however, the appeals court also split over the question of whether a common-law privilege has developed in the last thirty years, the Supreme Court may feel more obligated to clean up the discrepancies in the lower courts. If that happens, most lawyers think that the current Court, with its concern over privacy issues, would squarely come down on the side of the narrow reading of Branzburg. “It’s a dangerous time to take a privilege case to the Supreme Court,” says Charles Tobin, a Washington media lawyer who spent eight years as in-house counsel for Gannett Company. “I’m not optimistic. Federal courts increasingly see the administration of justice as the ultimate end that trumps all other interests.”

Several lawyers I spoke with point to a July 2003 decision by Judge Richard Posner as a potential harbinger for Plame. In that case Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, who has been called the most influential jurist in America, handed down a decision that many think unnecessarily gut-shot the reporter’s privilege. The case stemmed from the prosecution, in Ireland, of Michael McKevitt, a member of a violent splinter faction of the Irish Republican Army. He asked a federal court in Chicago to subpoena tape recordings made by some journalists working on a biography of a state witness in his prosecution, and the court agreed. The journalists asked the appeals court to block the trial court’s order, but the request was denied and the tapes were turned over. Then a month later Posner issued an opinion elaborating on the court’s reasoning. Posner wrote that “rather surprisingly” a large number of federal courts after Branzburg had decided that there was a reporter’s privilege, a conclusion Posner found “audacious.” Posner was dismissive of the notion that a reporter would have any basis to keep information confidential when the source did not object to its disclosure. Likewise, Posner found that courts that granted reporters a privilege on nonconfidential sources, in order to guard them from harassment or keep them from becoming an investigative adjunct to the government, were “skating on thin ice.” Rather, Posner thought, Branzburg indicated that subpoenas of journalists should be treated the same as subpoenas issued to anyone else.

Lucy Dalglish, executive director of the Reporter’s Committee on Freedom of the Press, was among several people I spoke to who found Posner’s decision gratuitous. “For thirty years things looked pretty rosy. Then Posner writes this opinion — no briefs, no oral argument — just him reading Branzburg to say the whole idea of a reporter’s privilege is ludicrous, there is no such thing.” Dalglish thinks Posner’s opinion was an ignition switch for subsequent attacks on the reporter’s privilege. Others give the case less importance, but no one doubts Posner’s towering influence and many fear McKevitt could serve as a preview to what the Supreme Court could do with Plame.

RAISING THE SHIELD For that reason several media companies and First Amendment advocacy groups are looking to head off a Court ruling through legislative action. A bill based on the Justice Department’s guidelines for subpoenaing a reporter’s records was introduced in the House of Representatives by Michael Pence of Indiana, a Republican, and Rick Boucher of Virginia, a Democrat. Richard Lugar, a Republican from Indiana, introduced the Senate version. Earlier, Christopher Dodd, a Connecticut Democrat, introduced a federal reporter’s shield law drafted with input from the Media Law Resource Center, the Reporters Committee, and in-house lawyers for several large media companies.

Dalglish and others say the media are united as never before in seeking to get a shield law through Congress. “One thing we have going for us is that there isn’t a single pol up there who hasn’t been a confidential source,” says Dalglish, who is actively lobbying for the bill. “They have a better understanding of what’s at stake than most citizens do.”

Of course, this isn’t the first time the idea of a federal shield law has been raised. In Branzburg the Court held that Congress was free to fashion a newsman’s privilege “as narrow or broad as deemed necessary.” After the decision many lawmakers attempted to do just that. By the following winter The Washington Post reported that ninety-one representatives and seventeen senators had either introduced or cosponsored press shield laws. Hearings were held, and reporters, lawyers, and publishers testified about the need for the law. But even with a heavily Democratic Congress, locked in its own Watergate-era battles with the Nixon administration, the bills failed to pass. So it may be fairly asked what chance does a shield law have three decades later with a ruling majority not noted for its regard for the press?

Much like Plame, Branzburg arrived during a time of peril for the press. During the first two years of the Nixon administration CBS and NBC alone were served more than fifty subpoenas by the government. This magazine warned at the time that a “subpoena epidemic” was overtaking American journalism, threatening to turn reporters into a “de-facto arm of the Attorney General’s office.” Though the Justice Department adopted stricter guidelines in 1970 on subpoenaing reporters, Branzburg seemed to accelerate the trend for a time. Lawyers for Vice President Spiro Agnew, a vociferous press critic, hit eight reporters with subpoenas over leaks in the government’s criminal investigation of his financial dealings (Agnew would resign in October of 1973 in a bribery scandal). So many reporters were either in jail or facing the prospect of going there for defying subpoenas that one editor quipped to The New York Times that a hacksaw was becoming a standard issue item in the modern journalist’s tool kit.
But it is also worth noting that Branzburg was handed down just twelve days before the break-in at the Watergate Hotel in 1972 that lead to the resignation of a president and perhaps the most triumphant moment in the history of the American press. And despite all the dire predictions after Branzburg, the decision did little to impede the reporting that Bob Woodward, Carl Bernstein, and others did for the story. When the Committee To Re-Elect the President (CREEP) sought to pry Watergate materials from the Post, the Times, and Time magazine, a federal judge quashed the subpoena, citing the “possible chilling effect the enforcement of these subpoenas would have on the flow of information to the press and, thus, the public.”

As for Paul Branzburg, after losing at the Supreme Court he was sentenced to six months in jail. He had moved on to Michigan to work for The Detroit Free Press, but Wendell Ford, Kentucky’s governor, personally lobbied Governor William Milliken of Michigan to extradite the reporter back to the Bluegrass state for sentencing. Milliken refused and Branzburg never returned to Kentucky or served a day in jail.

Journalists are hoping for a similar outcome in the Plame case. One of the ironies of the privilege debate is that whenever freedom of the press collides with criminal investigations, both reporters and lawyers invoke the “public’s right to know” as a justification for their stand. Judith Miller and the Times have done so often and loudly in the Plame case, and though Special Counsel Fitzgerald has refrained from making public comments, the words of the prosecutor seeking to jail Peter Bridge in New Jersey in the 1970s for refusing to testify before a grand jury, may sum up his feelings: “To deter grand jury investigation would prevent the body from properly performing its public duty and would subvert the very values which defendant purports to protect.”

Part of the clash between lawyers and journalists can be attributed to their shared populist bent. As Stephen Bates, a former prosecutor for Kenneth Starr in the Whitewater investigation and literary editor of The Wilson Quarterly, notes, both reporters and prosecutors are “professional snoops — curious, analytical, skeptical. Both pursue truth and . . . both believe that their work serves society, a belief (however justified) that sometimes engenders self-righteousness, obstinacy and hypersensitivity.”

Of course, there are some major differences as well. Prosecutors have the power to put people in jail, journalists don’t, at least not directly. The resurgence in willingness of the judicial and executive branches to attack the Fourth Estate at the source is as troubling now as it was three decades ago. And back then the decision in Branzburg was greeted with calls for increased press protections from the public and politicians of both parties. Would anyone expect a similar public outcry of support today for journalists if Judith Miller and Matt Cooper go to jail?

Didn’t think so.

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