Trump’s Attempts to Plug White House Leaks Could Result in Broader Protection for Reporters
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By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Public University
Since Donald Trump’s inauguration on January 20, 2017, a nearly daily stream of improper disclosures or leaks to the press from within the new administration and other parts of the government has plagued the seven-month-old presidency.
In a series of speeches and postings on Twitter, Trump has demanded that these leaks stop. He cites the damage done not only to his ability to govern, but also to the potential threat to national security from the improper disclosure and publication of sensitive government information or internal conversations.
Given the real or perceived damage caused by the leaks, President Trump hired hard-charging, former Wall Street financier Anthony Scaramucci as White House Communications Director. Scaramucci’s job was to plug the leaks.
In a phone call laced with profanities, Scaramucci demanded that New Yorker magazine reporter Ryan Lizza disclose the identity or source of the leak of information about Scaramucci’s financial disclosure forms. Scaramucci also wanted to know who revealed his dinner with the President and other media personalities the evening before the phone call.
Despite Scaramucci’s persistent attempts to get Lizza to disclose his sources, the reporter refused. In doing so, Lizza sought to educate Scaramucci on the so-called reporter’s privilege, a concept derived from common law and codified in statute by most states.
That law shields reporters from being required to disclose their sources in certain limited situations. While Lizza successfully invoked the reporter’s privilege, his New Yorker article led to Scaramucci’s termination days later.
The episode provides an opportunity to review the state of the reporter’s privilege at the federal level.
Individuals Face Termination and Possible Criminal Prosecution For Leaks; Reporters Receive State Law Protection
After Scaramucci’s termination, another series of leaks rocked the Trump administration, including the release of transcripts of private conversations between Trump and several world leaders during the first days of Trump’s administration. In response, Attorney General Jeff Sessions announced at an August 4, 2017 news conference that the Trump administration would crack down on leaks.
Specifically, Sessions said he had ordered an investigation of those government employees engaging in leaks. The investigation would include the Department of Justice’s internal policies regarding the treatment of reporters who publish leaked information from a government source. The Attorney General’s news conference sparked a series of media articles, which alleged that a possible change in the federal government’s treatment of journalists was an attack on freedom of the press.
People who disclose confidential, classified or top secret information face a host of penalties, ranging from termination of employment to imprisonment. But reporters, who are often the recipients of improperly disclosed information, often argue that the First Amendment protects them from disclosing their sources. Reporters in the print and broadcast media cite a collection of state laws known as “reporter shield laws” that protect them from revealing their sources.
Reporter Shield Laws Do Not Exist at the Federal Level
No shield law exists to protect reporters at the federal level, despite years of advocacy from journalists for just such a law.
Rather than serving as ironclad protection for journalists, the case law upon which the reporter’s privilege rests is murky at best at the federal level. It may provide reporters with little protection in certain circumstances.
Instead of a federal shield law, the United States Attorney’s Office created a series of internal, non-binding procedures that discourage the prosecution of reporters who refuse to reveal their sources. These procedures encourage prosecutors to use alternative means to obtain the source of leaked information.
These procedures are the internal rules that Attorney General Sessions hinted at during his news conference; they could change in response to the wave of recent leaks. The argument that an alteration of the Department of Justice’s internal rules would infringe on reporters’ First Amendment protection. But such an argument ignores an established Supreme Court precedent regarding reporter’s privilege at the federal level.
The Reporter’s Privilege at the Federal Level Is an Evidentiary Rather Than a Constitutional Privilege
Despite the fact that most states have passed reporter shield laws, the United States Supreme Court has addressed the reporter’s privilege at the federal level on only one occasion: Branzburg v. Hayes in 1972.
Paul Branzburg wrote several articles for the Louisville Courier-Journal reporting on drug deals. His reporting included his eyewitness accounts of watching drug users in action. When Branzburg was subpoenaed to testify regarding criminal activities that he had witnessed, he refused to name his sources.
In Branzburg, the Supreme Court held in a 5-4 decision that reporters who witness federal crimes in the course of their work cannot avoid testifying at a grand jury by citing the First Amendment’s press freedom clause. In a concurrence to the majority’s decision, Justice Lewis F. Powell Jr. held that members of the press possessed an evidentiary, but not a constitutionally based, privilege in certain circumstances in criminal cases.
Evidentiary privileges, like the spousal and attorney-client privileges, govern the admissibility of certain types of evidence in court proceedings. While evidentiary privileges might prevent the testimony of witnesses, they derive from common law and statutes rather than from protections contained in the Constitution. Unlike constitutional protections, testimonial privileges are subject to several exceptions.
Branzburg’s Murky Precedent Remains the Law of the Land
Courts since the Branzburg case have created a series of balancing tests governing when the evidentiary privilege afforded to reporters in federal criminal proceedings should apply, as well as the exceptions to the privilege.
However, the various balancing tests have been cast in doubt by the Court of Appeals for the Fourth Circuit in a recent 2 to 1 decision. In United States v. Risen, New York Times reporter James Risen, who based his reporting in large part on classified documents disseminated by an intelligence officer, argued that the First Amendment protected him from disclosing his source.
The Court of Appeals held that a reporter who allegedly receives secret information from a government source about alleged governmental wrongdoing cannot successfully invoke the reporter’s privilege based on the First Amendment. Because the Supreme Court denied Risen’s writ of certiorari, the Supreme Court left unchallenged its 1972 decision in Branzburg.
(The Tech Law Journal defines a writ of certiorari as “the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The U.S. Supreme Court still uses the term certiorari in the context of appeals.)
Reporters May Face Contempt of Court Charges in Some Circumstances
Despite the fact that most states have enacted strong reporter shield laws, reporters who witness federal crimes or are recipients of unlawfully disclosed federal information cannot invoke the First Amendment privilege if they are called as witnesses in a criminal proceeding or a grand jury investigation. In fact, a failure to either testify or cooperate in such criminal investigations may subject reporters to contempt of court proceedings.
For example, a federal judge held former New York Times reporter Judith Miller in contempt for failing to disclose the source of a leak of the identity of an undercover CIA operative in 2005. If the Trump administration actively pursues the prosecution of leakers, journalists could become hostile witnesses before grand juries and criminal trials.
Renewed Interest in the Reporter’s Privilege May Result in Legal Changes
Given the high priority that the Trump administration has placed on stemming leaks and the possibility that Attorney General Sessions might alter internal policies regarding the treatment of journalists, it is likely that the reporter’s privilege will feature prominently in future news coverage.
If the Trump administration decides to take a more aggressive stance regarding reporters, the courts – including the Supreme Court – might have the opportunity to revisit Branzburg and the reporter’s privilege at the federal level.
Alternatively, renewed controversy over the reporter’s privilege could result in congressional legislation such as the passage of a federal reporter’s shield law. Ironically, the Trump administration’s attempt to stem leaks might ultimately result in further protections for reporters at the federal level.
About the Author
James Barney is an associate professor of Legal Studies in the School of Security and Global Studies. He is also the co-faculty advisor of the Phi Alpha Delta law fraternity and teaches numerous undergraduate and graduate legal studies courses. James is a lawyer admitted to practice law in New York, New Jersey, Alabama and the District of Columbia.
With more than a dozen years of legal experience, he possesses expertise in numerous legal fields including constitutional, tort, criminal, evidence, sports, employment, civil rights and business law. Drawing on his legal experience, James also possesses a mastery of the mechanics of legal research and writing and civil procedure in the federal court system.
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