After Supreme Court punts, it’s NYT’s Risen against the Justice Department

The Supreme Court today delivered a setback to New York Times reporter James Risen and to the media industry, as it declined to intervene in a case in which Risen was subpoenaed to testify about a confidential source. The Washington Post’s Robert Barnes reports that the court made no comment in connection with its decision.

The court’s refusal to get involved in the case sets up a clash between Risen and the Justice Department, which has sustained a great deal of criticism over the past year for its handling of media outlets. In May 2013, the Associated Press reported that its phone records had been seized without its knowledge as part of a leak investigation; around that time, too, The Post reported that Justice had secured a search warrant for the personal e-mails of Fox News reporter James Rosen in connection with a leak investigation.

Following those cases, the Justice Department promulgated new guidelines for approaching news organizations in such situations. And just last week, Attorney General Eric Holder told a group of journalists, “As long as I’m attorney general, no reporter will go to jail for doing his job.”

Ted Boutrous, a partner at the law firm of Gibson, Dunn & Crutcher LLP who filed an amicus curiae brief in the case on behalf of the International Women’s Media Foundation, said that Holder’s proclamation may have “taken the wind out of the sails” of Risen’s attempt to secure Supreme Court review. And that’s too bad, he insists: It was 1972, after all, when the controlling Supreme Court case for journalist testimony — Branzburg v. Hayes, a decision that has prompted conflicting interpretations — was decided. “Forty-two years is long enough,” says Boutrous.

As explained before in this space, the legal wrangling in the Risen situation stems not from his work for the New York Times but rather from his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.” A chapter therein provides details on a strange CIA plot — Operation Merlin — to recruit a former Russian scientist to pass along flawed nuclear weapons plans to Iran. The feds took note: Four years later, in 2010, the Justice Department indicted former CIA agent Jeffrey Sterling for leaking national security secrets to Risen for publication in “State of War.”

In a May 2011 trial subpoena, the Justice Department sought testimony from Risen in the case, specifically to “directly identify Sterling” as his source. Risen protested, setting off a judicial rollercoaster: District court Judge Leonie Brinkema ruled in Risen’s favor, stating that there was no “free pass for the government to rifle through a reporter’s notebook.” A 4th Circuit appeals court later overruled that decision on appeal, with Judge William Byrd Traxler Jr. writing, “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”

How could the courts disagree on something so fundamental? The explanation rests in part on Branzburg, a 5-4 ruling that includes this passage: “Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.”

That seems pretty definitive, yet a concurring opinion by Justice Lewis Powell preached moderation: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

In a dissent in the 4th Circuit appeals case, one judge proclaimed that the “lessons of Branzburg [are] about as clear as mud.”

As Boutrous’s amicus curiae brief notes, the various circuits have splintered on “meaning and scope” of Branzburg. The fourth and ninth circuits, he argues, differ with the third on one key aspect, and the second and D.C. circuits can’t even agree internally certain aspects of the law. “This lack of any uniform federal standard has spawned uncertainty among sources and journalists, and has raised the specter of incarceration and other harsh penalties for reporters who do not know what they can promise their sources when engaged in constitutionally protected newsgathering activity,” notes the brief.

Another amicus brief, filed on behalf of ABC, The Washington Post and others, virtually placed the problem on Google Maps:

In this case, for example, Risen has been authoritatively informed by the Fourth Circuit that he has no lawful ability to protect the identities of his confidential sources in response to a subpoena issued by a federal court sitting in Virginia. If that same subpoena had been issued by a federal court in Delaware, less than 120 miles to the north, he would have enjoyed a presumptive privilege grounded in federal common law as construed by the Third Circuit. And, if the subpoena had been issued by a federal court in Georgia, some 300 miles to the south, he would have been presumptively protected by the First Amendment-based privilege recognized in the Eleventh Circuit.

Today’s Supreme Court, however, declined to clean up the mess. If there’s a silver lining in the court’s restraint, it’s that it didn’t jump in and affirm the appeals ruling against Risen. “It means that we’re free to fight another day,” says attorney David Schulz of Levine, Sullivan, Koch & Schulz.

That applies to Risen, as well — at least in regard to prosecutors in the Sterling case. Last July, the Justice Department promulgated media policies clarifying that testimony from reporters should be sought “only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.” Judge Roger Gregory, who wrote a dissent in the appeals case, questioned just how essential Risen’s testimony is to the Sterling prosecution. He noted, as previously detailed here, that the government:

*Can show phone records demonstrating several calls between Risen and Sterling;
*Can offer evidence of e-mails between the two;
*Can “demonstrate that Sterling showed Risen’s book to Sterling’s then-girlfriend in a bookstore and, without so much as opening it, Sterling told her that chapter nine discussed his work at the CIA. The book itself reveals details about Classified Program No. 1 that tend to link Sterling to chapter nine. For example, sections of the chapter are told from the point of view of the case officer responsible for Human Asset No. 1 — which was Sterling’s responsibility — and the Government asserts that the chapter describes two classified meetings at which Sterling was the only common attendee.”

Should all that evidence be enough to get Risen out of testifying? What media outlets were seeking in Supreme Court review is clarity from the top on just such questions. That is, what’s the balancing test that courts should deploy in determining whether a reporter must testify about confidential sources? Because there’s no uniformity out there right now.

And relying on Holder and the country’s prosecutors is hardly cause for comfort. “A prosecutor has blinders on and is going to go to the limit” to seek evidence in a criminal case, says Schulz. “That’s why you need a privilege, so a court can strike the proper balance.”

To contextualize the power of the prosecution, think about the chronology in this case: Risen’s book was published in January 2006; a grand jury began investigating the disclosures in the book in March 2006; in January 2008, the government produced a grand jury subpoena for Risen; an indictment came down in 2010; a trial subpoena for Risen was issued in May 2011. He’s been fighting this thing for about six years, in other words — which is why Holder’s vow not to jail reporters for doing their jobs might not soothe the reporter. “Giving the Justice Department the power to push and push and push for a subpoena and then pull back and not jail the reporter — that in and of itself has a tremendous chilling effect and burden on the press,” says Boutrous.

In an e-mail to the Erik Wemple Blog, Risen reports, “I will continue to fight.”

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.
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