Press Box

Thanks for That Subpoena!

The legal maneuver that may—unintentionally—end up expanding reporters’ rights.

Wen Ho Lee

When reporters bawl about their woes, the tears come in such profusion that they rely on 100-percent Egyptian cotton bath sheets, not hankies, to slurp up the mess. A round of high-profile sobbing commenced a couple of years ago as a number of journalists—Matthew Cooper, Walter Pincus, Judith Miller, Glenn Kessler, Bob Drogin, James Risen, Philip Shenon, et al.—received subpoenas demanding that they reveal their confidential sources. Quicker than you could say “chilling effects,” “the sanctity of the First Amendment,” and the “public’s right to know,” journalists were blubbering that unchecked subpoena power was poised to destroy the press.

The current crying jag could come to a halt, however, if the Supreme Court agrees to hear the elegant petition on behalfof Pierre Thomas. He is one of several journalists fighting subpoenas from Dr. Wen Ho Lee, whose civil suit against the federal government claims that it violated his rights under the Privacy Act.

At issue in Thomas’ petition for a writ of certiorari is what rights journalists have to fend off subpoenas—or to put it in legalese, what “privilege” the law accords them when someone seeks their testimony. The cornerstone precedent in this area of law is the perplexing 1972 Supreme Court decision Branzburg v. Hayes, a case about whether journalists must answer criminal grand jury subpoenas. I write “perplexing” because some lower courts have interpreted Branzburg to say that some sort of legal privilege exists for reporters. But others have cited the decision to say that absolutely no such privilege exists.

The inconsistent application of Branzburg over the last two decades has bedeviled lawyers and the lower courts, none of them more so than Judge Richard Posner, the legal logic machine on the U.S. Court of Appeals for the 7th Circuit. Posner straightened out Branzburg’s kinks to his satisfaction in an influential 2003 decision that essentially said that when Branzburg said there is no privilege for journalists, it really meant no privilege. The appeals court that validated the grand jury subpoenas issued to Matthew Cooper and Judith Miller in the Valerie Plame investigation echoed Posner’s hard line. The Supreme Court, which has not revisited Branzburg since 1972, declined to hear the journalists’ argument.

The Wen Ho Lee subpoenas differ from the Plame subpoenas in that Lee is a civil case, Plame a criminal one. The petition by Thomas’ lawyers—Theodore B. Olson and Theodore J. Boutrous Jr. of Gibson, Dunn, & Crutcher—capitalizes on that difference, pointing out that the legal precedents governing reporters’ privilege in the civil context (where prosecutions of dastardly crimes are not potentially at stake) are not as rigid as those outlined in Branzburg. Like monkeys prying termites out of a hole with a stick, Thomas’ lawyers also exploit the lower-court chaos over Branzburg to urge the Supreme Court to hear their argument so it can rethink its views on reporters’ privilege in criminal cases, too.

First, a brief Wen Ho Lee refresher: The federal government investigated the former Department of Energy scientist in the late 1990s based on the suspicion that he was spying for China. Officials apparently fed fruits of the investigation to the press, and Lee alleges that the stories contained information the government had released in violation of the Privacy Act. Reporter Thomas, then at CNN and now at ABC News, started covering the Lee story a month after the government publicly named Lee as a suspect. Here are the three Thomas stories on CNN cited by Lee’s attorneys: April 28, 1999; a second one from April 28, 1999; and a third, Oct. 14, 1999.

The government never proved the spying charge against Lee, though the scientist pleaded guilty to a felony related to the downloading of classified research files. He then sued the government under the Privacy Act. His attorneys subpoenaed Thomas and four other journalists in 2002, hoping to find the officials, i.e., the confidential sources, who Lee thinks violated his rights. (The other subpoenaed reporters were James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, and H. Josef Hebert of the Associated Press. Gerth’s subpoena was tossed out of court. The other reporters’ attorneys have filed a separate petition to the Supreme Court that sounds most of the legal themes found in the Thomas complaint. The Supremes should decide by late spring whether to hear the arguments.)

Driving their sleek argument like a Buick Roadmaster over a fresh stretch of interstate, Olson and Boutrous take advantage of the ridiculous overreach of the Thomas subpoena, writing:

A reporter on the periphery of this litigation has been dragged into a discovery battle and ordered to reveal his confidential sources on pain of contempt, even though the truthful information he reported concerning a matter of significant public interest has no direct relevance to the claims in the underlying lawsuit. Thomas’s reporting was not mentioned in the complaint, even as amended. Moreover, Lee made little to no effort to obtain the information from other sources. Indeed, none of Lee’s interrogatories or requests for admission concerned Thomas’s reporting.

Moving to the constitutional issues, Thomas’ lawyers point to the Supreme Court rulings, chiefly in Bartnicki v. Vopper, that have established that privacy interests can’t “trump the strong First Amendment interests in ensuring the free flow of truthful information about matters of public concern,” as Thomas’ attorneys write. In other words, if Lee’s beef with the government ends up forcing Thomas to give up his sources, the public will suffer when future confidential sources clam up.

A few years after Branzburg, in 1975, Congress passed Federal Rule of Evidence 501, which instructed federal courts to recognize new privileges—not solely for journalists—by interpreting common-law principles in light of “reason and experience.” Courts have relied on Rule 501 to extend privilege to psychotherapists, spouses, cleric-communicants, and others.

At the time of Rule 501’s passage, only 17 states recognized any privilege for reporters. Today, 49 states and the District of Columbia extend some form of privilege to reporters. That leaves out only one state (what’s the matter with you, Wyoming!?)  and the federal government. If Lee had brought his lawsuit in D.C. Superior Court rather than federal court, the complaint notes, Thomas probably could have beaten the subpoena. Last year, 35 state attorneys general, including the one for the District of Columbia, asked the Supreme Court to recognize some version of a reporter’s privilege. The statutory landscape had tilted in reporters’ favor since Branzburg, they argued, and the lack of a parallel protection in federal court undercuts the state efforts to shield reporters.

Give us clarity, the AGs bitched. Under the current legal mess, reporters who properly observe state law and promise confidentiality to a source may see that promise obliterated overnight by discovery in a federal lawsuit.

Given the facts, it’s not hyperbole to suggest that if Thomas is forced to surrender his sources in this privacy case, no confidential source’s identity will be safe from civil litigation.

The beauty of the Thomas petition is that it gives the Supreme Court plenty of room to rethink elements of Branzburg without having to even consider overturning it. The Supreme Court—like the pope—hates more than anything to admit it was wrong, because doing so undermines the court’s infallibility. As a civil matter, the Wen Ho Lee case is nowhere near as explosive for the Supreme Court to handle as the Cooper-Miller case would have been.

Teary-eyed reporters can only hope that the court will hear the arguments presented on behalf of Thomas and the other journalists. Maybe—just maybe—the justices will avail themselves of facts in this case, the confusion generated by Branzburg, and various post-Branzburg legal ingredients to discover the beginnings of a reporter’s privilege worth having.


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