Fourth Circuit: Obama and Holder’s Talk Notwithstanding, No Reporter’s Privilege in Criminal Cases

Vol. 30 No. 1

By

George Freeman is of counsel at Jenner & Block LLP in New York, NY.

In June, after a wait of over a year, the U.S. Court of Appeals for the Fourth Circuit issued a split decision in United States v. Sterling,1 concluding that there was no applicable reporter’s privilege in criminal cases, thereby requiring that James Risen testify about his dealings with his confidential source(s) in the criminal prosecution of the alleged leaker Jeffrey Sterling. This long-awaited decision reversed the federal district court’s ruling that, for the most part, protected Risen from testifying.

As a matter of law, the majority’s decision is both novel and disheartening. First, it is the only federal court of appeals ruling that brazenly declares that there is no reporter’s privilege whatsoever in criminal cases. Second, in a more intriguing and nuanced analysis, it determined, reversing the lower court’s courageous opinion on this point, that even though the U.S. government had significant circumstantial evidence to prove its case against the defendant, Risen’s testimony was nonetheless critical to its case. The Fourth Circuit reasoned that because Risen’s direct evidence would be so much stronger than the circumstantial evidence already at the government’s disposal, Risen’s testimony was necessary.

The case is also fascinating because of its historical context and its somewhat bizarre timing. First, the comparisons between this case and the (in)famous case of Risen’s New York Times colleague Judith Miller are quite telling. But more important are the contrasts between the Fourth Circuit’s holding and the statements by President Barack Obama and Attorney General Eric Holder strongly supporting protection for reporters as pushback to the recent Associated Press phone records and James Rosen/Fox News scandals, where the government was generally seen as overplaying its hand and inappropriately, if not unconstitutionally, intruding upon the rights of journalists.

The Fourth Circuit Decision

Very briefly, a tour of the facts and prior proceedings: The case stems from a chapter in Risen’s book State of War, which focused on a “botched attempt by the CIA to have a former Russian scientist pass on fake and intentionally flawed nuclear blueprints to Iran.”2 The reporting was clearly based on confidential source(s) and “raised serious questions about the [CIA’s] competence” in gathering intelligence about Iran’s weapons of mass destruction capabilities.3 (Risen was at the time a New York Times reporter, and the Fourth Circuit’s opinion notes that after pleas from the government to the Times about the potential damage that publication would cause, the Times (for other reasons as well) did not publish the story.)4

The government’s criminal leak investigation concerning that chapter of the book followed, as did two separate grand jury subpoenas on Risen, “both of which sought testimony about [his] confidential source(s).” After one grand jury expired, the second subpoena was quashed by Federal District Judge Leonie Brinkema on the ground that Risen’s testimony would “simply amount to ‘the icing on the cake’ and that the Government could secure an indictment without [him].”5 As predicted, Sterling was indicted without Risen’s testimony; nonetheless, the government served Risen with a trial subpoena. The district court again largely granted Risen’s motion to quash. It applied the traditional three-part test—whether the information is relevant, whether the information is available from other sources, and whether the information is critical—and concluded that, on the whole, “the Government [had] failed to show that there were no reasonable alternatives to . . . Risen’s testimony” and “that it had a compelling need for [that] testimony.”6

Fourteen months after oral argument, in a very divided 2–1 decision, the Fourth Circuit reversed.7 The majority held that the U.S. Supreme Court’s ruling in Branzburg v. Hayes,8 as well as Fourth Circuit jurisprudence, foreclosed finding that there was any privilege “protect[ing] a reporter from being compelled to testify [at] a criminal [trial] about the identity” of—or his transactions with—confidential sources, and that, in any event, the government did have a compelling need for Risen’s testimony notwithstanding the circumstantial evidence linking Risen and Sterling.9

The court’s decision could not be any starker. In the first sentence of the section entitled “The First Amendment Claim,” the court was forceful and unambiguous:

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. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court “in no uncertain terms rejected the existence of such a privilege.”10

In a very spirited dissent, Judge Roger Gregory—noting that “freedom of the press is one of our Constitution’s most important and salutary contributions to human history” and calling the majority’s evisceration of the privilege “sad”—disagreed on almost every front.11 Underscoring the importance of reporters’ use of confidential sources to bring matters of public interest to light, Judge Gregory disagreed with the majority’s reading of both Branzburg and Fourth Circuit law and opined that the weight of the circumstantial evidence that the government had at its disposal minimized the need for Risen’s testimony. He noted:

Risen’s reporting on Iran’s nuclear capabilities [specifically the blundered American intelligence mission in Iran] is also particularly relevant given the criticism of the national press for its perceived failure to scrutinize United States intelligence regarding Iraq’s weapons capabilities. . . . Indeed, it is hard to imagine many subjects more deserving of public scrutiny and debate.12

He concluded that “[t]he majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.”13

Reliance on Branzburg and the Other Circuits

The Fourth Circuit’s repudiation of the privilege was based on both its controversial reading of Branzburg and its somewhat tortured interpretation of prior Fourth Circuit law.

The confusion wrought by the opinions in Branzburg is well known. Indeed, after analyzing Justice Lewis Powell’s “enigmatic concurring opinion,”14 Judge Gregory wrote that “Justice Powell’s concurrence and the subsequent appellate history have made the lessons of Branzburg about as clear as mud.”15 Yet, the Fourth Circuit opinion stuck rigidly to the five-vote majority in Branzburg, which concluded that reporters do not enjoy a testimonial privilege under the First Amendment other than where the government acted in bad faith. Risen, as well as dissenting Judge Gregory, pointed to Justice Powell’s concurring opinion (and his vote was necessary for the five-man majority), which emphasized that a reporter’s claim to privilege must be assessed on a “case-by-case basis” by balancing the “vital constitutional and societal interests” of freedom of the press and the obligation of citizens to give relevant testimony concerning criminal conduct.16 It is somewhat astounding that this confusion with respect to the ultimate meaning of Branzburg has now lasted over forty years without a true conclusion.

Shedding light on this debate, however, is the fact that the Second, Ninth, Eleventh, and D.C. Circuits have all applied the reporter’s privilege in criminal cases, such as Risen’s, that involved information obtained from confidential sources.17 Two other Circuits—the First and Third—have gone even further and applied the privilege in criminal prosecutions even when nonconfidential information was at issue.18 Furthermore, the Fifth and Seventh Circuits “have declined to recognize the privilege in criminal prosecutions in which nonconfidential information was at issue, while expressly recognizing that, if confidential source information were at issue, it might require a different result.”19

This was pretty much the law in the Fourth Circuit as well. Thus, in the Fourth Circuit, there have been two civil cases in which the court applied the reporter’s privilege in protecting testimony involving confidential sources.20 Complementing those rulings were two cases in the criminal context that did not involve confidential sources: the circuit declined to apply the balancing test while making “clear that a balancing of the interests [might well] be required [if] confidential sources were involved.”21

In light of these prior Fourth Circuit rulings, the strong trend in the other circuits, the admittedly contradictory interpretations of Branzburg, and the strong dissent of Judge Gregory, the majority’ s opinion eviscerating any application of the privilege in criminal cases appears brazen indeed.22

Circumstantial Evidence and Criticality of Risen’s Testimony

The more interesting debate presented by this case is the effect of the quite voluminous circumstantial evidence that the government has: Should its presence negate the need for Risen’s direct testimony under the second and third prongs of the three-part test assuming, contrary to the majority’s premise, that it is applicable?

The government could present to the jury testimony that Sterling told a girlfriend that chapter 9 of the book discussed his work at the CIA, that phone records demonstrated that Sterling and Risen called each other seven times during the month in question, that Sterling attempted to delete e-mails referencing meetings and shared information between Sterling and Risen, and that Risen and Sterling had a preexisting relationship with respect to the reporting of classified information, as well as other documentary and testimonial information.23 As Judge Gregory concluded, “[t]he Government’s efforts have yielded multiple evidentiary avenues that, when presented together, may be used to establish what the Government sought to establish solely with testimony from Risen—that Sterling leaked classified information, rendering Risen’s testimony regarding his confidential sources superfluous.”24

On the other hand, the majority took issue with the district court’s conclusion that circumstantial evidence of guilt “should serve as an adequate substitute for a direct, first-hand account of the crime” because “circumstantial evidence is no less probative than direct evidence.”25 It is hard to deny that a witness’s direct testimony (in this case, the only witness) is more powerful than circumstantial evidence. But the real question is whether it is so critical and necessary that it can pass the criticality prong of the three-part test. Although the majority concluded (in dicta, to be sure, because it held that there was no privilege and that the three-part test was not necessary) that “[t]he telephone records and e-mail messages, and the hearsay statements by witnesses who were in contact with Sterling” were not “reasonable alternatives to Risen’s first-hand testimony” and were “an obviously poor substitute,”26 it is still unclear, and the majority did not make the case, that the firsthand testimony is critical to the prosecution.

Perhaps the last word ought to be that of Judge Brinkema, who had noted in her opinion that the government never “pleaded that Risen’s testimony [was] necessary or critical . . . ; instead, it has argued that Risen’s testimony will ‘simplify the trial and clarify matters for the jury’ and ‘allow for an efficient presentation of the Government’s case.’” She said that “[a]n efficient and simpler trial is neither necessary nor critical to demonstrating Sterling’s guilt beyond a reasonable doubt.” Indeed, if efficiency were the test, she concluded, “there would hardly be a qualified reporter’s privilege.”27

Harassment Discounted

Another interesting aspect of the lengthy majority opinion is that its only mention of harassment was in the context of discounting harassment as an issue in this case. Under Justice Byron White’s majority opinion in Branzburg, harassment would be a valid reason to quash a subpoena on a journalist.28 This point is pertinent in Sterling because Risen and the government were hardly new to each other. Risen (and his colleague Eric Lichtblau) were the two Timesmen who wrote the series of articles about the Bush administration’s warrantless wiretapping procedures. Within days, President George W. Bush, Vice President Dick Cheney, and Attorney General Alberto Gonzales suggested that the New York Times could face prosecution over its publication of the NSA domestic surveillance story. In light of this history and the government’s clear dislike of Risen’s reporting on classified national security matters (and his winning a Pulitzer Prize for his efforts), it would appear that a harassment argument should be seriously considered.

Criticality: In re Judith Miller and Sterling Compared

Considering the issue of the criticality of Risen’s testimony, a comparison of Sterling and In re Grand Jury Subpoena, Judith Miller29 is apt. In the Miller case (in which I served as counsel for the New York Times), Special Prosecutor Patrick Fitzgerald spent over two years and millions of taxpayer dollars to require Miller to testify first before a grand jury and then at the trial of Vice President Cheney’s chief of staff, Scooter Libby.30

Looking back, it is absolutely clear that an indictment would have come down without Miller’s testimony. More important, in the end, she testified for about an hour at the trial; and given the amount of other evidence in the trial, including that of journalists who had not fought as long as she had, the guilty verdict would surely have been achieved without her testimony.

Although it is likely that Risen’s testimony will last longer than an hour, the paradigm is the same: a long and costly fight for a reporter’s testimony and the reporter’s ultimate quandary of giving testimony or going to jail (in Miller’s case, both). This scenario appears to be needless in the Miller and Risen cases because in both cases a conviction was and could be obtained without the reporter’s testimony. Compulsive prosecutorial i-dotting and t-crossing should not lead to the Hobson’s choice for a reporter between jail and reneging on his pledge of confidentiality. (Ironically, in the end, although Miller served eighty-five days in jail before being compelled to testify, Libby, who was convicted of a felony, served none because President Bush commuted his thirty-month sentence.)

Recent Scandals and DOJ Reform

All of the above is trumped, and the current state of play made far more intriguing as a real-world matter, by what was going on in Washington in and around the time of the Fourth Circuit’s decision.

It recently came to light that as part of leak investigations, the U.S. Department of Justice (DOJ) had secretly seized Associated Press (AP) phone records (without giving AP a chance to resist the procurement of the phone records in court) and had named Fox News reporter James Rosen a “co-conspirator” in violation of the Espionage Act in order to get a warrant to obtain journalistic e-mails. Due to the ensuing uproar caused by widespread criticism of these antipress actions, pressure on Attorney General Holder to amend DOJ guidelines was intense. Thus, just one week before the Fourth Circuit’s ruling, DOJ released its Report on Review of News Media Policies, which characterizes attempts to obtain reporters’ testimony as “an extraordinary measure,” one that should be taken “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.”31

Interestingly, even before the Fourth Circuit’s decision, Risen’s attorneys jumped into action to point out the contradiction between DOJ’s avowed new principles and its conduct in this case. Just a day before the decision came down, Risen attorney Joel Kurtzberg quoted liberally from DOJ’s report of a week earlier, noting that the report said that seeking evidence from or involving news media in a prosecution should be used only as a “last resort.” Kurtzberg concluded, “The standard that the DOJ now articulates in the report is the very same standard that the Government argues should not be applied to Mr. Risen by the Court in this case.”

One day later, the court ruled that journalists have no protection from the government in criminal cases—a conclusion totally contradictory to the new (and old) DOJ guidelines. After the decision, Risen’s attorneys continued to use DOJ’s stated philosophy to attack its actions. Thus, a week after the ruling, Risen attorney David N. Kelley pressed Holder to withdraw the Justice Department’s subpoena for Risen’s testimony. He suggested:

You may follow the route set forth in your new Guidelines, a route which would not always lead you to insist on the “most probative” testimony but only to require a journalist’s testimony when it was absolutely “essential” to do so. Such an approach would, we think, inevitably lead you to abandon the efforts to require Mr. Risen to testify.

A few weeks later, the Reporters Committee for Freedom of the Press, on behalf of scores of news organizations, supported that submission with a letter to the attorney general urging him to withdraw the Risen subpoena altogether. It will be interesting to see if “the new Holder [will] overrule the old Holder,” noted Steve Coll in the New Yorker.32

It seems pretty clear that Holder would love this dilemma to go away, but whether it will or not remains to be seen. In a case where the identity of the leaker is apparently known and the government has strong evidence to link the leaker with the reporter, it appears unreasonable to argue that a reporter’s testimony is necessary or critical. On the other hand, dropping the subpoena after fighting for years to reverse the lower court ruling that quashed it would undermine the government lawyers who have worked on the case and, to some degree, weaken the government’s position with respect to the prosecution of leakers, an area that the government has pressed with unusual fervor throughout the years of the Obama administration. Risen sought review en banc from the Fourth Circuit. It rejected his petition 13-1, with only Judge Gregory dissenting. The government, for its part and notwithstanding Holder's and Obama's statements, submitted papers fully supporting the Fourth Circuit panel’s decision. Risen's attorneys have asked for a stay from the Circuit's further proceeding while they prepare a petition for cert in the Supreme Court, which they plan to file soon.

Conclusion

How all of this will play out is, at this point, both unknowable and fascinating.

The final possible consequence is the scariest: Supreme Court review. In Practicing Law Institute lectures and elsewhere, I have long cautioned media lawyers against taking a reporter’s privilege case to the Supreme Court. Yet, in the Miller case, faced with our client going to jail, my colleagues and I ethically had no choice but to seek SCOTUS review. The only reason that I did not feel totally hypocritical was that I was confident that certiorari would be denied—and it was. In Sterling, Risen’s lawyers might face the same dilemma.

Regardless, reporters’ freedom and the ability of the press to use confidential sources to report on national security matters hang in the balance. So, too, of course, does the federal shield law, which has been debated in Congress as all of these other proceedings have ensued. A few years ago, the shield law seemed likely to be enacted, but the WikiLeaks disclosures led to its death knell. It would be ironic if in this go-round the shield law were to be enacted because of government overreaching in the AP and Fox News cases and the Fourth Circuit’s lack of respect for the role of investigative journalists in covering government incompetence in our democracy.

Endnotes

1. No. 11-5028, 2013 WL 3770692 (4th Cir. July 19, 2013).

2. Petition for Rehearing En Banc of Appellee James Risen, United States v. Sterling, No. 11-5028 (4th Cir. Aug. 2, 2013).

3. Id.

4. Sterling, No. 11-5028, slip op. at 9.

5. Petition for Rehearing, Sterling, No. 11-5028 (quoting United States v. Sterling, 818 F. Supp. 2d 945, 947 (E.D. Va. 2011)).

6. Id.

7. Sterling, 2013 WL 3770692.

8. 408 U.S. 665 (1972).

9. Petition for Rehearing, Sterling, No. 11-5028.

10. Sterling, 2013 WL 3770692, at *5 (quoting In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146 (D.C. Cir. 2006)).

11. Sterling, No. 11-5028, slip op. at 87, 112.

12. Id. at 110.

13. Id. at 86.

14. Id. (quoting Branzburg v. Hayes, 408 U.S. 665, 725 (1972) (Stewart, J., dissenting)).

15. Id. at 94 (Gregory, J. dissenting).

16. Petition for Rehearing En Banc of Appellee James Risen, United States v. Sterling, No. 11-5028 (4th Cir. Aug. 2, 2013) (quoting Branzburg, 408 U.S. at 710 (Powell, J., concurring)).

17. Id. (citing United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816 (1983); United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); Farr v. Pitchess, 522 F.2d 464, 467–68 (9th Cir. 1975); United States v. Capers, 708 F.3d 1283 (11th Cir. 2013); United States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000)).

18. Id. (citing United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980)).

19. Id. (citing United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998); McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003)) (emphasis in original).

20. Id. (citing LaRouche v. NBC, 780 F.2d 1134, 1139 (4th Cir. 1986); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000)).

21. Id. (citing In re Shain, 978 F.2d 850, 853 (4th Cir. 1992); United States v. Steelhammer, 539 F.2d 373 (4th Cir. 1976), adopted by the court en banc, 561 F.2d 539 (4th Cir. 1977)).

22. It also should be pointed out that Branzburg could—or should—be limited to its facts: a grand jury investigation, not a criminal trial. In the Judith Miller case, which involved a grand jury investigation, I remember questioning why the privilege should be weaker in the grand jury context; in this case, it is curious that the court relied so much on Branzburg and other grand jury cases despite the journalist’s emphasis that those were distinguishable from a criminal trial situation.

23. United States v. Sterling, No. 11-5028, slip op. at 103–05 (4th Cir. July 19, 2013) (Gregory, J. dissenting).

24. Id. at 105.

25. Id. (quoting United States v. Sterling, 818 F. Supp. 2d 945, 956 (E.D. Va. 2011) (quoting Stamper v. Muncie, 944 F.2d 170, 174 (4th Cir. 1991))).

26. Id. at 53.

27. Sterling, 818 F. Supp. 2d at 958 (quoting Motion in Limine at 5).

28. The Fourth Circuit did consider Risen’s argument that a reporter’s privilege ought to be recognized as a matter of federal common law. Relying on Fed. R. Evid. 501 (enacted three years after Branzburg) and Jaffee v. Redmond, 518 U.S. 1, 9 (1996), Risen contended that a state-by-state consensus recognizing the reporter’s privilege (thirty-nine states and the District of Columbia have shield laws, and ten more recognize it judicially) as well as the newly strengthened DOJ guidelines mandate its recognition and application. However, the majority held that Branzburg foreclosed any such recognition.

29. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006).

30. Id.

31. U.S. Dep’t of Justice, Report on Review of News Media Policies 2 (July 12, 2013).

32. Steve Coll, Talk of the Town, A Test of Confidence, New Yorker, Sept. 2, 2013, at 22, available at http://www.newyorker. com/talk/comment/2013/09/02/130902 taco_talk_coll.

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