Transition to Trump: Reporters must be allowed to protect their sources

In his first press conference since being elected, Donald Trump berated U.S. intelligence agencies for allowing classified documents to be leaked, saying it was something “Nazi Germany would have done,” and branded CNN as “fake news” for reporting on the documents that allege he has ties with Russia. Trump, who denies the allegations, also tweeted this month that he would order Congress to “investigate top secret intelligence shared with NBC prior to me seeing it,” in response to another leak allegation.

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The comments came the same week Senator Jeff Sessions said during his confirmation hearing for attorney general that he was unsure whether he would commit to following the stricter guidelines on subpoenaing a journalist’s records, adopted by Attorney General Eric Holder in 2015.

These comments are concerning for investigative reporters, who are already under pressure. Under Obama, the Department of Justice used the Espionage Act to prosecute leaks more times than all previous administrations and successfully argued in court against a broader reporter’s privilege in the case of a subpoena against New York Times journalist James Risen. Nearly all states recognize journalist privilege through court decisions or legislation that exists in at least 34 states to protect journalists from naming sources in state court. But the country lacks a federal shield law.

CPJ spoke with James Goodale, the First Amendment attorney who represented The New York Times in the landmark libel suit New York Times v. Sullivan and in the Pentagon Papers case, about whether the press will be at heightened risk of being subpoenaed under a Trump administration. Goodale, who wrote Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, told CPJ journalists have reason to be worried.

Goodale, a senior adviser to CPJ and former board chair, is familiar with the challenges reporters can face to protect their sources. He represented The New York Times in 1970 when the Justice Department, under Richard Nixon, sued reporter Earl Caldwell to try to gain access to his notes. A district court ruled that Caldwell did not need to give up his source, but said he needed to appear at a Grand Jury. It was a prospect that worried the reporter, who told the court such an appearance would sow distrust among his sources. Caldwell appealed, independently of The New York Times, and his case made it to the Supreme Court where it joined two analogous cases under the title Branzburg. It would end up being one of the most significant cases in U.S. history to decide on whether reporters can protect their sources, Goodale told CPJ. Conflicting interpretations of the case have divided courts on the issue of reporter’s privilege for years and set the stage for a patchwork of protections for journalists and their sources.

[This interview has been edited for clarity and length]

Nixon’s Justice Department won the Branzburg case in a 5-4 ruling that reporters generally have to respond when called to testify before a Grand Jury. The ruling seemed like a blow to the press, but it was softened by Justice Lewis Powell’s concurrence that emphasized that the press has a right to gather news under the First Amendment. What has been the impact of Powell’s concurrence and how has it been interpreted?

The later interpretation of Powell’s separate opinion proved to be more influential than the court’s main opinion in Branzburg. Powell was more influential because in the federal courts, the reporters were able to persuade federal judges that what Powell meant was they had a privilege not to testify under certain circumstances. It also had a major effect on state shield laws since states, one-by-one, followed Powell’s language and put it into statutes. Even when the states did not put [it] into statutes, state courts followed Powell’s opinion in case law. Bottom line: there have been more than 1,000 cases interpreting Branzburg and a majority have granted reporters a right not to respond fully to subpoenas.

In the Branzburg case, The New York Times filed an amicus brief arguing that reporters could be forced to testify only when there was a compelling state interest and that the material had to be highly material and relevant, and could not be obtained from other sources. Other publications wanted absolute reporter’s privilege. Should journalists settle for anything less than absolute privilege?

Reporters should, number one, always try to get an absolute privilege when state legislatures are trying to adopt shield laws, but [they] can philosophically accept a lesser-than-absolute privilege, namely a qualified privilege, since the base law of the First Amendment is that it is not absolute. And since the First Amendment is not absolute, the protection that reporters seek arguably should not be absolute either.

You talked about how the Powell concurrence was, in some ways, more influential than the main decision of the court in Branzburg. What happened to that legal consensus in 2004 when the Judith Miller case came up? [Editor’s Note: New York Times reporter Miller spent 85 days in jail after the U.S. Court of Appeals for the D.C. Circuit found her in contempt of court in 2005 for refusing to reveal the name of a source who leaked the name of a CIA operative.]

We have 50 state jurisdictions and, of all the federal circuit courts of appeal, in most the privilege can be applied. The Miller case represented one limited instance where, on the facts, the privilege was held not to apply. Most of the other federal jurisdictions have not followed Judith Miller and reporters are still protected, although there was one other notable loss in recent years in the Risen case in the Fourth Circuit.

In the Risen case the Department of Justice tried to compel the New York Times reporter to testify in a leak case. In a ruling to quash the subpoena, Judge Leonie Brinkeman relied on the Powell concurrence to argue for qualified reporter’s privilege, but this ruling was overturned by the Court of Appeals for the Fourth Circuit, based in Virginia. Ultimately, the Department of Justice dropped the subpoena, but what is the legacy of the case?

The legacy is two-fold. One: it shows that even within the federal jurisdiction that borders the Judith Miller jurisdiction (the District of Columbia), the argument that reporters are protected under Powell’s opinion still is a vital argument because it persuaded a district judge to follow it, even though the Court of Appeals, the appellate court, overturned it. Second, and more importantly, what the case proves since Risen never testified is that if reporters stand up to requests to testify under very important situations, they can indicate that if the subpoena is enforced, they will go to jail. The reason this is important is because that’s exactly what Risen did, and the federal government gave up and went away because it did not want to put Risen in jail.

Should we be concerned that it was overturned on appeal and the Supreme Court did not hear the case? Could a future administration use the Department of Justice’s arguments in the Risen case to defend themselves when demanding information from a reporter?

The risk to reporters under Trump and under a highly conservative attorney general, whoever that might be, is that the government will try to do to them what they did to Risen, and since Risen and the reporters in many cases might be in D.C., the Judith Miller jurisdiction, that is a large risk to those reporters. They will have to stand up and indicate that they will go to jail in order to test the government with respect to its ability and willingness to carry out the subpoena, and to seek jail time if it’s not complied with. I think with a conservative attorney general that this might happen frequently, and probably more often than it happened under Obama, who, by the way, was very bad on this.

Can you talk more about Obama’s press freedom record?

Obama was not good at protecting reporters’ rights. He screwed up a bill that was going to pass Congress with respect to protecting reporters, namely a federal shield law, by adding conditions to it that made it virtually impossible to apply to protect reporters, and the bill died. This is not a good part of Obama’s legacy. In addition, [his administration] indicted, sentenced, and convicted more leakers than any other president in history, and such action towards leakers implicates reporters because reporters are the other side of the leakers’ conversation. I don’t see that there’s anything good about Obama’s legacy.

You wrote in The Daily Beast in 2011 about the threat of prosecution of Julian Assange for WikiLeaks. Could that create a negative precedent?

One of the great risks under the Trump administration is the prosecution of those who carry out a journalistic function for cooperating or conspiring with their sources. If the Trump administration indicts and convicts Assange, there could be a huge risk for reporters who want to get classified information. The argument would be that under the Espionage Act the reporter had conspired with the source, and therefore could be convicted for such a conspiracy, even though the leaker is primarily at risk. Fox News reporter James Rosen was subject to such a penalty until the news broke the Justice Department was trying to do exactly what I said and the Justice Department backed off. But under Trump they just may not back off. [Editor’s Note: The FBI seized Rosen’s email records in a 2010 Espionage Act case against a State Department employee accused of leaking information about North Korea. The reporter was named as a co-conspirator in the FBI’s affidavit in support of the subpoena.]

Does the decision in the Pentagon Papers case offer protection for journalists in this scenario?

I don’t think it’s technically legal authority for journalists to protect sources, as the decision relates to publishers, but the fact that publishers ended up publishing information that was classified, without being stopped, generally creates an environment that’s helpful to reporters.

In 2015 Attorney General Eric Holder announced that the Justice Department would tighten guidelines for when it could subpoena a journalist’s records. In doing so, it adopted some of the language and standards that you had pushed for in terms of a reporters’ privilege. Does that help the legacy of the Obama administration?

Yes, it helps. But the attorney general only adopted guidelines, and those guidelines can be changed by a new attorney general who may not be as sympathetic to the issues raised as Holder. I don’t look at this being Obama’s achievement, but rather Holder’s. The real problem in this area is that the Justice Department has a special unit, which is devoted solely to finding leaks. This unit ran amok under Obama until–coincidentally about the time my book came out in 2013–there was a public uproar about what Obama had done, and all of a sudden the indictment of leakers stopped. There’s no guarantee under a new attorney general that he won’t resume indicting leakers, as Holder had in fact done until the public uproar.

In your book, Fighting for the Press, you write about Nixon’s anti-press rhetoric and his apparent vendetta against The New York Times. Nixon once said to his press secretary, “I want it clearly understood from now on, ever, no reporter from The Washington Post is ever to be in the White House.” In June, Trump tweeted, “Based on the incredibly inaccurate coverage and reporting of the record-setting Trump campaign, we are hereby revoking the press credentials of the phony and dishonest Washington Post.” Do you see parallels in these cases?

There’s two things to keep very separate: one is anti-press rhetoric and two is legal action against the press. I don’t think the press can complain about anti-press rhetoric because the speaker is entitled to say whatever the speaker wants to say, and the press can respond in kind.

That’s the way the ball game goes. But when such rhetoric is combined with legal action or with threatened legal action, as was the case of Nixon with actual litigation, that’s something else again. So I think the question is: will the Justice Department follow up with legal action that matches the rhetoric.

It may be or it may be not [be a prelude to legal action.] I don’t think that we can conclude that everything Trump says is everything that he does.

Vice President-elect Mike Pence pushed hard for the federal shield law when it first came up in 2007. Is that a cause for optimism?

I think it is a cause for optimism. He not only pushed for it, he got the House of Representatives to pass the federal shield law by huge margins. But one has to remember the traditional role of the vice president is to do nothing, and one who does nothing does not have much influence.

To get back to the core question: Will journalists be able to protect their sources in a Trump administration?

I think that journalists should be concerned as to their ability to protect their sources in federal courts when the Justice Department seeks those sources. This is true particularly in the jurisdiction, which I’ve called the Judith Miller jurisdiction, technically the D.C. Circuit. I would think there is a reasonable risk that there will be more subpoenas than there were before.

And the journalists will be facing a choice of going to jail or complying with a subpoena. In terms of the state courts I don’t think it is a risk, an enhanced risk. And with respect to those federal courts still looking at Branzburg giving protection to reporters, I’m not sure that the risk is enhanced in those courts. But I could hardly say that it’s diminished either.