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Reporters’ conundrum and the law

There’s lots of discussion about a Plamegate irony. Getting to the bottom of this may require one or more journalists to disclose their purported confidential sources. As a former reporter, I know this is something journalists abhor. As a lawyer who’s litigated the issue, though, I also know there’s a basis for forcing disclosure of sources. Here’s the scoop.

The District of Columbia (where the leak supposedly occurred) has a fairly strong “shield law” a law that offers certain protections against journalists being forced to reveal their sources. That won’t apply, though, because this is an investigation of potential violation of a federal law, which trumps state laws.

In 1972 the Supreme Court ruled on reporters being forced to testify about sources in grand juries in Branzburg v. Hayes. Basically, reporters have a “qualified” (defeatable) privilege not to disclose sources. In the grand jury context, the privilege appears to exist only if the journalist can establish harassment or bad faith. Outside the grand jury context, the courts have indicated the party seeking the information must show a compelling need for it.

Federal regulations set forth the Department of Justice’s policy regarding subpoenas to journalists. Interestingly, no subpoena can be issued to a member of the news media or for their telephone records without the “express authorization of the Attorney General.” This makes the Ashcroft-Rove connection that much more interesting.

The policy requires DOJ first make “all reasonable” attempts to obtain the information elsewhere and to negotiate with the media. Otherwise, the policy requires in criminal cases that there be

reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation — particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

Additionally, the use of subpoenas is to be limited, “except under exigent circumstances,” to “verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.”

Bottom line: If one of the “leakees” doesn’t roll over first, DOJ can probably force disclosure if it needs to or has the guts.

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