Justice Department urges SCOTUS to pass up reporter's privilege case

By JOSH GERSTEIN  4/25/14

The Obama Administration is urging the Supreme Court not to take up New York Times reporter James Risen's plea to consider overturning a ruling that he must testify about his confidential sources for his reporting about a Central Intelligence Agency effort to undermine Iran's nuclear program.

In a filing Friday afternoon, the Justice Department urged the court not to take up the opportunity to declare a reporter's privilege against testifying in criminal cases and argued that even if the justices are inclined to consider such a privilege, Risen's situation is not a good one in which to do so.

"While the question presented does not warrant this court's review, this case is a particularly unsuitable vehicle," the government declares in its new brief (posted here).

Risen was subpoenaed by the prosecution to testify at a planned federal trial of Jeffrey Sterling, a former CIA officer who was charged with illegally disclosing classified information including information that appeared in Risen's book, "State of War." After Risen objected, a district court judge ruled his testimony was protected by a reporter's privilege recognized in many state courts but less frequently in federal court.  A three-judge panel of the U.S. Court of Appeals for the 4th Circuit reversed that decision in a 2-1 ruling last year.

If the Supreme Court does not take up Risen's appeal, he could be held in contempt in district court and might be sent to jail or fined if he refuses to identify his sources or testify about other details of his reporting. He has said repeatedly that he will not divulge details about his sources. That could place President Barack Obama in the awkward position of presiding over the jailing of a journalist in an administration the president has vowed to make the most transparent in history.

The Justice Department could head off such a showdown by cutting a plea deal with Sterling, dropping the case altogether, or electing to proceed without Risen's testimony—something prosecutors once seemed willing to do.

In the brief filed Friday, the Justice Department repeatedly says there is no reason for the Supreme Court to disturb or review Branzburg v. Hayes, a case it decided in 1972 finding no privilege for journalists called as grand jury witnesses in a good-faith criminal investigation.

"Branzburg left no doubt that it rejected any first Amendment claim in the criminal context in order to ensure that society’s interest in law enforcement could be vindicated," the brief said. "Nothing has changed since Branzburg that would justify revising the longstanding common-law rule that reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources."

The Justice Department brief is unflinchingly hostile to the idea of the Supreme Court creating or finding protections for journalists, but acknowledges that the Obama Administration is working with Congress to do just that and that the Justice Department recently tightened internal guidelines which limit subpoenas to journalists.

"A common-law reporter’s privilege, if fashioned by the courts to protect sources who are engaged in criminal conduct, lacks merit as a matter of first principles," Solicitor General Donald Verrilli Jr. and other senior attorneys wrote. "Judicially-created privileges in criminal cases may be recognized or expanded 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth'…. A reporter’s privilege broad enough to cover persons in petitioner’s situation would not meet that standard."

Although nearly every state affords journalists some protection from subpoenas, the Justice Department argues that those efforts are of little relevance to cases like Risen's where national security secrets are at issue.

"Although many States recognize a reporter’s privilege of some sort in some circumstances, no 'consensus' exists about who qualifies for such a privilege, what types of communications are covered, and the circumstances in which it may be invoked," the brief says.

"Importantly, none of the state laws or decisions petitioner cites addresses the uniquely federal interest in preventing the unlawful disclosure of classified national-defense information."

More than 20 news organizations and press groups have signed onto an amicus brief urging the justices to take up Risen's petition and make clear the existence of a reporter's privilege.

The Justice Department brief argues that one reason Risen's case is not well-suited to considering such a privilege is that most courts consider it to be a qualified privilege that can be overcome, particularly in criminal cases. The 4th Circuit panel found no such privilege exists but that even if it did, the government had overcome the privilege by making a sufficient showing of need for Risen's testimony.

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