United States v. Jeffrey Sterling

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5028
UNITED STATES OF AMERICA,
Plaintiff − Appellant,
v.
JEFFREY ALEXANDER STERLING,
Defendant – Appellee,
JAMES RISEN,
Intervenor − Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−
THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION; ABC, INCORPORATED; ADVANCE PUBLICATIONS,
INCORPORATED; ALM MEDIA, INCORPORATED; THE ASSOCIATED PRESS;
BLOOMBERG, L.P.; CABLE NEWS NETWORK, INCORPORATED; CBS
CORPORATION; COX MEDIA GROUP, INC.; DAILY NEWS, L.P.; DOW
JONES AND COMPANY, INCORPORATED; THE E. W. SCRIPPS COMPANY;
FIRST AMENDMENT COALITION; FOX NEWS NETWORK, L.L.C.; GANNETT
COMPANY, INCORPORATED; THE HEARST CORPORATION; THE MCCLATCHY
COMPANY; NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL
PUBLIC RADIO, INCORPORATED; NBCUNIVERSAL MEDIA, LLC; THE NEW
YORK TIMES COMPANY; NEWSPAPER ASSOCIATION OF AMERICA; THE
NEWSWEEK DAILY BEAST COMPANY LLC; RADIO TELEVISION DIGITAL
NEWS ASSOCIATION; REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS; REUTERS AMERICA LLC; TIME INC.; TRIBUNE COMPANY; THE
WASHINGTON POST; WNET,
Amici Supporting Intervenor.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10−cr−00485−LMB−1)
Argued: May 18, 2012 Decided: July 19, 2013
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion for the court in
Part I, in which Judge Gregory and Judge Diaz joined. Chief
Judge Traxler wrote the opinion for the court in Parts II-V, in
which Judge Diaz joined. Judge Gregory wrote the opinion for
the court in Part VI, in which Chief Judge Traxler and Judge
Diaz joined. Judge Gregory wrote the opinion for the court in
Part VII, in which Judge Diaz joined. Chief Judge Traxler wrote
an opinion concurring in part and dissenting in part as to Part
VII. Judge Gregory wrote an opinion dissenting as to Parts II-
V.
ARGUED: Robert A. Parker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Joel Kurtzberg, CAHILL, GORDON
& REINDEL, New York, New York; Edward Brian MacMahon, Jr.,
Middleburg, Virginia; Barry Joel Pollack, MILLER & CHEVALIER,
CHARTERED, Washington, D.C., for Appellees. ON BRIEF: Neil H.
MacBride, United States Attorney, James L. Trump, Senior
Litigation Counsel, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; William M. Welch II, Senior Litigation
Counsel, Timothy J. Kelly, Trial Attorney, Criminal Division,
Lanny A. Breuer, Assistant Attorney General, Mythili Raman,
Principal Deputy Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Mia
Haessly, MILLER & CHEVALIER, CHARTERED, Washington, D.C., for
Appellee Jeffrey Alexander Sterling. David N. Kelley, CAHILL,
GORDON & REINDEL, New York, New York, for Appellee James Risen.
J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; Bruce
D. Brown, Laurie A. Babinski, BAKER & HOSTETLER LLP, Washington,
D.C., for The Thomas Jefferson Center for the Protection of Free
Expression, Amicus Supporting James Risen. Lee Levine, Jeanette
Melendez Bead, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington,
D.C., for Amici Curiae; John W. Zucker, Indira Satyendra, ABC,
2
INC., New York, New York, for Amicus ABC, Inc.; Richard A.
Bernstein, SABIN, BERMANT & GOULD LLP, New York, New York, for
Amicus Advance Publications, Inc.; Allison C. Hoffman, Fabio B.
Bertoni, ALM MEDIA, LLC, New York, New York, for Amicus ALM
Media, LLC; Karen Kaiser, THE ASSOCIATED PRESS, New York, New
York, for Amicus The Associated Press; Charles J. Glasser, Jr.,
BLOOMBERG L.P., New York, New York, for Amicus Bloomberg L.P.;
David C. Vigilante, Johnita P. Due, CABLE NEWS NETWORK, INC.,
Atlanta, Georgia, for Amicus Cable News Network, Inc.; Anthony
M. Bongiorno, CBS CORPORATION, New York, New York, for Amicus
CBS Corporation; Lance Lovell, COX MEDIA GROUP, INC., Atlanta,
Georgia, for Amicus Cox Media Group, Inc.; Anne B. Carroll,
DAILY NEWS, L.P., New York, New York, for Amicus Daily News,
L.P.; Mark H. Jackson, Jason P. Conti, Gail C. Gove, DOW JONES &
COMPANY, INC., New York, New York, for Amicus Dow Jones &
Company, Inc.; David M. Giles, THE E.W. SCRIPPS COMPANY,
Cincinnati, Ohio, for Amicus The E.W. Scripps Company; Peter
Scheer, FIRST AMENDMENT COALITION, San Rafael, California, for
Amicus First Amendment Coalition; Dianne Brandi, Christopher
Silvestri, FOX NEWS NETWORK, L.L.C., New York, New York, for
Amicus Fox News Network, L.L.C.; Barbara W. Wall, GANNETT CO.,
INC., McLean, Virginia, for Amicus Gannett Co., Inc.; Eve
Burton, Jonathan Donnellan, THE HEARST CORPORATION, New York,
New York, for Amicus The Hearst Corporation; Karole Morgan-
Prager, Stephen J. Burns, THE MCCLATCHY COMPANY, Sacramento,
California, for Amicus The McClatchy Company; Jane E. Mago,
Jerianne Timmerman, NATIONAL ASSOCIATION OF BROADCASTERS,
Washington, D.C., for Amicus National Association of
Broadcasters; Denise Leary, Ashley Messenger, NATIONAL PUBLIC
RADIO, INC., Washington, D.C., for Amicus National Public Radio,
Inc.; Susan E. Weiner, NBCUNIVERSAL MEDIA, LLC, New York, New
York, for Amicus NBCUniversal Media, LLC; George Freeman, THE
NEW YORK TIMES COMPANY, New York, New York, for Amicus The New
York Times Company; Kurt Wimmer, COVINGTON & BURLING, LP,
Washington, D.C., for Amicus Newspaper Association of America;
Randy L. Shapiro, THE NEWSWEEK/DAILY BEAST COMPANY LLC, New
York, New York, for Amicus The Newsweek/Daily Beast Company LLC;
Kathleen A. Kirby, WILEY REIN & FIELDING LLP, Washington, D.C.,
for Amicus Radio Television Digital News Association; Lucy A.
Dalglish, Gregg P. Leslie, REPORTERS COMMITTEE FOR FREEDOM OF
THE PRESS, Arlington, Virginia, for Amicus Reporters Committee
for Freedom of the Press; Shmuel R. Bulka, REUTERS AMERICA LLC,
New York, New York, for Amicus Reuters America LLC; Andrew B.
Lachow, TIME INC., New York, New York, for Amicus Time Inc.;
David S. Bralow, Karen H. Flax, Karlene W. Goller, TRIBUNE
COMPANY, Chicago, Illinois, for Amicus Tribune Company; Eric N.
Lieberman, James A. McLaughlin, THE WASHINGTON POST, Washington,
3
D.C., for Amicus The Washington Post; Robert A. Feinberg, WNET,
New York, New York, for Amicus WNET.
4
TRAXLER, Chief Judge:
Jeffrey Sterling is a former CIA agent who has been
indicted for, inter alia, the unauthorized retention and
disclosure of national defense information, in violation of the
Espionage Act, 18 U.S.C. § 793(d) & (e). The indictment
followed the grand jury’s probable cause determination that
Sterling illegally disclosed classified information about a
covert CIA operation pertaining to the Iranian nuclear weapons
operation to James Risen, for publication in a book written by
Risen, and that he may have done so in retaliation for the CIA’s
decision to terminate his employment and to interfere with his
efforts to publish such classified information in his personal
memoirs. Prior to trial, the district court made three
evidentiary rulings that are the subject of this appeal. We
affirm in part, reverse in part, and remand for further
proceedings.
I. Background
A.
According to the indictment, Defendant Jeffrey Sterling was
hired as a CIA case officer in 1993, and granted a top secret
security clearance. As a condition of his hire, and on several
occasions thereafter, Sterling signed agreements with the CIA
explicitly acknowledging that he was not permitted to retain or
disclose classified information that he obtained in the course
5
of his employment, without prior authorization from the CIA, and
that doing so could be a criminal offense.
In November 1998, the CIA assigned Sterling to a highly
classified program intended to impede Iran’s efforts to acquire
or develop nuclear weapons (“Classified Program No. 1”).
Sterling also served as the case officer for a covert asset
(“Human Asset No. 1”) who was assisting the CIA with this
program. In May 2000, Sterling was reassigned and his
involvement with Classified Program No. 1 ended.
In August 2000, shortly after Sterling’s reassignment and
after being told that he had not met performance targets,
Sterling filed an equal opportunity complaint alleging that the
CIA had denied him certain assignments because he was African
American. The EEO office of the CIA investigated Sterling’s
complaint and determined that it was without merit. In August
2001, Sterling filed a federal lawsuit against the CIA alleging
that he had been the victim of racial discrimination, and
seeking monetary compensation. Several settlement demands were
rejected, and the lawsuit was dismissed in March 2004, following
the government’s invocation of the state secrets doctrine. We
affirmed the dismissal. See Sterling v. Tenet, 416 F.3d 338,
341 (4th Cir. 2005).
Sterling was officially terminated from the CIA on January
31, 2002, but he had been “outprocessed” and effectively removed
6
from service in October 2001. As part of his termination,
Sterling was asked to sign a final acknowledgment of his
continuing legal obligation not to disclose classified
information. Sterling refused.
On November 4, 2001, James Risen published an article in
The New York Times, under the headline “Secret C.I.A. Site in
New York Was Destroyed on Sept. 11.” J.A. 655. A “former
agency official” was cited as a source. J.A. 655. In March
2002, Risen published an article about Sterling’s discrimination
suit in The New York Times, under the headline “Fired by C.I.A.,
He Says Agency Practiced Bias.” J.A. 156, 725. The article
states that Sterling provided Risen with a copy of one of his
CIA performance evaluations, which is identified as a classified
document. The article also states that Sterling “relished his
secret assignment to recruit Iranians as spies.” J.A. 156.
In January 2002, in accordance with his non-disclosure
agreements with the CIA, Sterling submitted a book proposal and
sample chapters of his memoirs to the CIA’s Publications Review
Board. The Board expressed concerns about Sterling’s inclusion
of classified information in the materials he submitted.
On January 7, 2003, Sterling contacted the Board and
expressed “extreme unhappiness” over the Board’s edits to his
memoirs, and stated that “he would be coming at . . . the CIA
with everything at his disposal.” J.A. 35-36 (internal
7
quotation marks and alterations omitted). On March 4, 2003,
Sterling filed a second civil lawsuit against the CIA, alleging
that the agency had unlawfully infringed his right to publish
his memoirs. The action was subsequently dismissed by
stipulation of the parties. See Sterling v. CIA, No. 1:03-cv-
00603-TPJ (D.D.C. July 30, 2004).
The day after he filed his second civil suit, Sterling met
with two staff members of the Senate Select Committee on
Intelligence (“SSCI”) and raised, for the first time, concerns
about the CIA’s handling of Classified Program No. 1, as well as
concerns about his discrimination lawsuit. 1 According to a SSCI
staff member, Sterling “threatened to go to the press,” although
it was unclear “if Sterling’s threat related to [Classified
Program No. 1] or his lawsuit.” J.S.A 29.
Telephone records indicate that Sterling called Risen seven
times between February 27 and March 29, 2003. Sterling also
sent an e-mail to Risen on March 10, 2003 - five days after his
meeting with the SSCI staff - in which he referenced an article
from CNN’s website entitled, “Report: Iran has ‘extremely
1
CIA employees who are entrusted with classified, national
security information and have concerns about intelligence
programs or other government activities may voice their
concerns, without public disclosure and its accompanying
consequences, to the House and Senate Intelligence Committees,
or to the CIA’s Office of the Inspector General. See
Intelligence Community Whistleblower Protection Act of 1998,
Pub. L. No. 105-272, Title VII, 112 Stat. 2396 (1998).
8
advanced’ nuclear program,” and asked, “quite interesting, don’t
you think? All the more reason to wonder . . .” J.A. 37, 726;
J.S.A 31.
On April 3, 2003, Risen informed the CIA and the National
Security Council that he had classified information concerning
Classified Program No. 1 and that he intended to publish a story
about it in The New York Times. In response, senior
administration officials, including National Security Advisor
Condoleezza Rice and Director of the CIA George Tenet, met with
Risen and Jill Abramson, then Washington Bureau Chief of The New
York Times, to discuss the damage that publication would cause
to national security interests and the danger to the personal
safety of the CIA asset involved in the operation. Several days
later, Ms. Abramson advised the administration that the
newspaper would not publish the story.
Approximately three months later, Sterling moved from
Virginia to Missouri to live with friends. During this time, 19
telephone calls took place between the New York Times’
Washington office and Sterling’s friends’ home telephone number.
Sterling’s friends denied any involvement in these calls. A
forensic analysis of the computer Sterling used during this time
revealed 27 e-mails between Sterling and Risen, several of which
indicated that Sterling and Risen were meeting and exchanging
information during this time period.
9
Although The New York Times had agreed not to publish
information about Classified Program No. 1, Risen published a
book, State of War: The Secret History of the CIA and the Bush
Administration (“State of War”), in January 2006, which did
disclose the classified information. J.A. 721. Specifically,
Chapter 9 of the book, entitled “A Rogue Operation,” reveals
details about Classified Program No. 1. J.S.A. 219-32. In the
book, Risen entitled the program “Operation Merlin” and
described it as a “failed attempt by the CIA to have a former
Russian scientist provide flawed nuclear weapon blueprints to
Iran.” J.A. 722. Risen does not reveal his sources for the
classified information in Chapter 9, nor has he indicated
whether he had more than one source. However, much of the
chapter is told from the point of view of a CIA case officer
responsible for handling Human Asset No. 1. The chapter also
describes two classified meetings at which Sterling was the only
common attendee.
B.
On December 22, 2010, a federal grand jury indicted
Sterling on six counts of unauthorized retention and
communication of national defense information, in violation of
18 U.S.C. § 793(d) and (e); one count of unlawful retention of
national defense information, in violation of 18 U.S.C. §
793(e); one count of mail fraud, in violation of 18 U.S.C. §
10
1341; one count of unauthorized conveyance of government
property, in violation of 18 U.S.C. § 641; and one count of
obstruction of justice, in violation of 18 U.S.C. § 1512(c)(1).
Sterling’s trial was set to begin on October 17, 2011.
On May 23, 2011, Attorney General Eric Holder authorized
the government to issue a trial subpoena seeking Risen’s
testimony about the identity of his source for information about
Classified Program No. 1 and asking Risen to confirm that
statements attributed to sources were actually made by those
sources. The government also filed a motion in limine to admit
Risen’s testimony. Risen moved to quash the subpoena and for a
protective order, asserting that he was protected from compelled
testimony by the First Amendment or, in the alternative, by a
federal common-law reporter’s privilege. 2
2
During the grand jury proceedings, two similar subpoenas
were issued for Risen’s testimony. The first grand jury
subpoena was authorized by United States Attorney General
Michael Mukasey, on behalf of the Bush Administration, on
January 28, 2008. Risen’s motion to quash was granted in part
and denied in part. The district court recognized a reporter’s
privilege under the First Amendment. Because Risen had
disclosed Sterling’s name and some information about his
reporting to a third party, however, the district court found a
partial waiver as to this information. See United States v.
Sterling, 818 F. Supp. 2d 945, 947 (E.D. Va. 2011). Both Risen
and the government sought reconsideration of the district
court’s order, but the grand jury expired prior to final
disposition of the motion.
The second grand jury subpoena was authorized by Attorney
General Eric Holder, on behalf of the Obama Administration, on
11
The motions were denied in part and granted in part by the
district court. The subpoena was “quashed for Risen’s testimony
about his reporting and source(s) except to the extent that
Risen [would] be required to provide testimony that
authenticates the accuracy of his journalism, subject to a
protective order.” United States v. Sterling, 818 F. Supp. 2d
945, 947 (E.D. Va. 2011). The district court held that Risen
had “a qualified First Amendment reporter’s privilege that may
be invoked when a subpoena either seeks information about
confidential sources or is issued to harass or intimidate the
journalist,” id. at 951 (emphasis added), and that the
government could overcome the privilege only by meeting the
three-part test that this circuit established for reporters’
claims of privilege in civil cases in LaRouche v. National
Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). The district
court held that, while the information sought was clearly
relevant under the first prong of the LaRouche test, the
Government had failed to demonstrate that the information was
January 19, 2010. On Risen’s motion, the district court quashed
the subpoena, again based upon the First Amendment and its
conclusion that there was “more than enough [circumstantial]
evidence to establish probable cause to indict Sterling.” Id.
at 950 (internal quotation marks omitted). However, the
district court “indicated that it might be less likely to quash
a trial subpoena, because . . . at that stage the government
must prove [Sterling’s] guilt beyond a [reasonable] doubt.” Id.
12
unavailable from other means and that it had a compelling
interest in presenting it to the jury.
In addition to the district court’s order quashing Risen’s
trial subpoena, the district court handed down two other
evidentiary rulings that are the subject of this appeal. The
district court suppressed the testimony of two government
witnesses as a sanction for the government’s late disclosure of
impeachment material under Giglio v. United States, 405 U.S. 150
(1972). The district court also denied the government’s motion
to withhold from Sterling and the jury, pursuant to the
Classified Information Procedures Act (“CIPA”), 18 U.S.C. app.
3, the true names and identities of several covert CIA officers
and contractors it intends to call to testify at trial.
In a majority opinion written by Chief Judge Traxler, we
now reverse the district court’s order holding that Risen has a
reporter’s privilege that entitles him to refuse to testify at
trial concerning the source and scope of the classified national
defense information illegally disclosed to him (Issue I). In a
separate majority opinion written by Judge Gregory, we reverse
the district court’s order suppressing the testimony of the two
Government witnesses (Issue II), and affirm in part and reverse
in part the district court’s CIPA ruling (Issue III).
13
TRAXLER, Chief Judge, writing for the court on Issue I:
II. The Reporter’s Privilege Claim
We begin with the government’s appeal of the district court
order quashing the trial subpoena issued to Risen on the basis
of a First Amendment reporter’s privilege, and Risen’s challenge
to our jurisdiction to consider this portion of the appeal.
A. Jurisdiction
Risen contends that we lack jurisdiction to consider the
district court’s ruling under 18 U.S.C. § 3731, because the
district court stated that the limitations on Risen’s testimony
might be reconsidered under the LaRouche test as the testimony
developed at trial. We disagree.
Section 3731 provides for interlocutory appeals by the
United States of pretrial orders suppressing or excluding
evidence upon certification to the district court that the
appeal is not taken for the purpose of delay and that the
evidence in question is substantial proof of a fact material to
the proceedings. We have held that we have jurisdiction under §
3731 even when the district court “repeatedly indicated that its
rulings were preliminary and could change as the trial
progressed.” United States v. Siegel, 536 F.3d 306, 314 (4th
Cir. 2008); see also United States v. Todaro, 744 F.2d 5, 8 n.1
(2d Cir. 1984) (finding that a conditional suppression order may
14
be immediately appealed by the government under § 3731); cf.
United States v. Horwitz, 622 F.2d 1101, 1104 (2d Cir. 1980)
(“[W]e do not think that the conditional nature of the district
court’s ruling, which raises the remote prospect that
suppression will not be ordered, necessarily deprives this court
of jurisdiction under section 3731 to hear the government’s
appeal.”).
While it is true that the district court left itself some
room in its order to adjust the scope of Risen’s trial
testimony, it also made clear that it did not expect to revisit
its decision that Risen was entitled to assert a reporter’s
privilege under the First Amendment and could not be compelled
to reveal his sources. Thus, we hold that we have jurisdiction
over the appeal. “To conclude otherwise would insulate the
district court’s ruling from appellate review” because once
jeopardy attaches, the Government cannot appeal, “thus
frustrating rather than furthering the purposes of § 3731.”
Siegel, 536 F.3d at 315.
B. The First Amendment Claim
1.
There is no First Amendment testimonial privilege, absolute
or qualified, that protects a reporter from being compelled to
testify by the prosecution or the defense in criminal
proceedings about criminal conduct that the reporter personally
15
witnessed or participated in, absent a showing of bad faith,
harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source. In Branzburg
v. Hayes, 408 U.S. 665 (1972), the Supreme Court “in no
uncertain terms rejected the existence of such a privilege.” In
re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146 (D.C.
Cir. 2006).
Like Risen, the Branzburg reporters were subpoenaed to
testify regarding their personal knowledge of criminal activity.
One reporter was subpoenaed to testify regarding his
observations of persons synthesizing hashish and smoking
marijuana; two others were subpoenaed to testify regarding their
observations of suspected criminal activities of the Black
Panther Party. 3 All resisted on the ground that they possessed a
qualified privilege against being “forced either to appear or to
testify before a grand jury or at trial,” unless a three-part
showing was made: (1) “that the reporter possesses information
relevant to a crime,” (2) “that the information the reporter has
is unavailable from other sources,” and (3) “that the need for
the information is sufficiently compelling to override the
claimed invasion of First Amendment interests occasioned by the
disclosure.” Branzburg, 408 U.S. at 680. “The heart of the
3
Branzburg was a consolidated proceeding. For ease of
reference, we refer to all reporters as the Branzburg reporters.
16
[reporters’] claim [was] that the burden on news gathering
resulting from compelling [them] to disclose confidential
information outweigh[ed] any public interest in obtaining the
information.” Id. at 681.
Having so defined the claim, the Court proceeded to
unequivocally reject it. Noting “the longstanding principle
that the public . . . has a right to every man’s evidence,
except for those persons protected by a constitutional, common-
law, or statutory privilege,” id. at 688 (internal quotation
marks omitted), the Court held as follows:
Until now the only testimonial privilege for
unofficial witnesses that is rooted in the Federal
Constitution is the Fifth Amendment privilege against
compelled self-incrimination. We are asked to create
another by interpreting the First Amendment to grant
newsmen a testimonial privilege that other citizens do
not enjoy. This we decline to do.
Id. at 689-90 (emphasis added); see id. at 690 n.29 (noting that
“testimonial privileges [are] disfavor[ed] . . . since such
privileges obstruct the search for truth” and serve as
“‘obstacle[s] to the administration of justice’” (quoting 8 J.
Wigmore, Evidence § 2192 (McNaughton rev. 1961))).
The First Amendment claim in Branzburg was grounded in the
same argument offered by Risen -- that the absence of such a
qualified privilege would chill the future newsgathering
abilities of the press, to the detriment of the free flow of
information to the public. And the Branzburg claim, too, was
17
supported by affidavits and amicus curiae memoranda from
journalists claiming that their news sources and news reporting
would be adversely impacted if reporters were required to
testify about confidential relationships. However, the
Branzburg Court rejected that rationale as inappropriate in
criminal proceedings:
The preference for anonymity of . . .
confidential informants involved in actual criminal
conduct is presumably a product of their desire to
escape criminal prosecution, [but] this preference,
while understandable, is hardly deserving of
constitutional protection. It would be frivolous to
assert – and no one does in these cases – that the
First Amendment, in the interest of securing news or
otherwise, confers a license on either the reporter or
his news sources to violate valid criminal laws.
Although stealing documents or private wiretapping
could provide newsworthy information, neither reporter
nor source is immune from conviction for such conduct,
whatever the impact on the flow of news. Neither is
immune, on First Amendment grounds, from testifying
against the other, before the grand jury or at a
criminal trial.
Id. at 691 (emphasis added); see also id. at 690-91 (noting that
there was “no basis for holding that the public interest in law
enforcement and in ensuring effective grand jury proceedings is
insufficient to override the consequential, but uncertain,
burden on news gathering that is said to result from insisting
that reporters, like other citizens, respond to relevant
18
questions put to them in the course of a valid grand jury
investigation or criminal trial”). 4
In sum, the Branzburg Court declined to treat reporters
differently from all other citizens who are compelled to give
evidence of criminal activity, and refused to require a
“compelling interest” or other special showing simply because it
is a reporter who is in possession of the evidence. Compare id.
at 708 (holding that government need not “demonstrate[] some
‘compelling need’ for a newsman’s testimony”), with id. at 743
(Stewart, J., dissenting) (advocating adoption of the three-part
test that includes demonstration of a “compelling and overriding
interest in the information”).
Although the Court soundly rejected a First Amendment
privilege in criminal proceedings, the Court did observe, in the
concluding paragraph of its analysis, that the press would not
be wholly without protection:
[N]ews gathering is not without its First Amendment
protections, and grand jury investigations if
instituted or conducted other than in good faith,
would pose wholly different issues for resolution
under the First Amendment. Official harassment of the
4
Branzburg arose in the context of a grand jury
investigation, but its language and reasoning apply equally to
subpoenas in the ensuing criminal trials, where the government
bears the same charge to effectuate the public interest in law
enforcement but must meet an even higher burden of proof. See
408 U.S. at 686, 690-91; In re Shain, 978 F.2d 850, 852 (4th
Cir. 1992); United States v. Smith, 135 F.3d 963, 971 (5th Cir.
1998).
19
press undertaken not for purposes of law enforcement
but to disrupt a reporter’s relationship with his news
sources would have no justification.
Id. at 707-08 (majority opinion)(emphasis added)(footnote
omitted). This is the holding of Branzburg, and the Supreme
Court has never varied from it. As the Court observed nearly
two decades later:
In Branzburg, the Court rejected the notion that under
the First Amendment a reporter could not be required
to appear or to testify as to information obtained in
confidence without a special showing that the
reporter’s testimony was necessary. Petitioners
there, like petitioner here, claimed that requiring
disclosure of information collected in confidence
would inhibit the free flow of information in
contravention of First Amendment principles. In the
course of rejecting the First Amendment argument, this
Court noted that the First Amendment does not
invalidate every incidental burdening of the press
that may result from the enforcement of civil or
criminal statutes of general applicability. We also
indicated a reluctance to recognize a constitutional
privilege where it was unclear how often and to what
extent informers are actually deterred from furnishing
information when newsmen are forced to testify before
a grand jury. We were unwilling then, as we are
today, to embark the judiciary on a long and difficult
journey to . . . an uncertain destination.
University of Pa. v. EEOC, 493 U.S. 182, 201 (1990) (internal
quotation marks omitted); see also Cohen v. Cowles Media Co.,
501 U.S. 663, 669 (1991) (“[T]he First Amendment [does not]
relieve a newspaper reporter of the obligation shared by all
citizens to respond to a grand jury subpoena and answer
20
questions relevant to a criminal investigation, even though the
reporter might be required to reveal a confidential source.”). 5
The controlling authority is clear. “In language as
relevant to the alleged illegal disclosure of the identity of
covert agents as it was to the alleged illegal processing of
hashish [in Branzburg], the Court stated that it could not
‘seriously entertain the notion that the First Amendment
protects a newsman’s agreement to conceal the criminal conduct
of his source, or evidence thereof . . . .’” Judith Miller, 438
F.3d at 1147 (quoting Branzburg, 408 U.S. at 692); see id. at
1165-66 (Tatel, J., concurring) (“If, as Branzburg concludes,
the First Amendment permits compulsion of reporters’ testimony
5
This plain interpretation of Branzburg is also confirmed
by recent cases from our sister circuits. See United States v.
Moloney (In re Price), 685 F.3d 1, 16 (1st Cir. 2012)
(“Branzburg . . . held that the fact that disclosure of the
materials sought by a subpoena in criminal proceedings would
result in the breaking of a promise of confidentiality by
reporters is not by itself a legally cognizable First Amendment
or common law injury. Since Branzburg, the Court has three
times affirmed its basic principles in that opinion.” (citations
omitted) (citing Cohen v. Cowles Media Co., 501 U.S. 663 (1991);
University of Pa. v. EEOC, 493 U.S. 182 (1990); and Zurcher v.
Stanford Daily, 436 U.S. 547 (1978))); ACLU v. Alvarez, 679 F.3d
583, 598 (7th Cir. 2012) (noting that “[t]he [Branzburg] Court
declined to fashion a special journalists’ privilege” because,
inter alia, “the public interest in detecting, punishing, and
deterring crime was much stronger than the marginal increase in
the flow of news about crime that a journalist’s testimonial
privilege might provide” (internal quotation marks omitted)); In
re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146-47
(D.C. Cir. 2006) (unanimously concluding, in a national security
leak case, that Branzburg rejected such a First Amendment
reporter’s privilege).
21
about individuals manufacturing drugs or plotting against the
government, all information the government could have obtained
from an undercover investigation of its own, the case for a
constitutional privilege appears weak indeed with respect to
leaks [of classified information], which in all likelihood will
be extremely difficult to prove without the reporter’s aid.”
(citation omitted)). Accordingly, “if Branzburg is to be
limited or distinguished in the circumstances of this case, we
must leave that task to the Supreme Court.” Id. at 1166.
Notwithstanding the clarity of Justice White’s opinion for
the Court in Branzburg, and the fact that Justice Powell joined
that opinion, Risen argues that Justice Powell’s concurring
opinion in Branzburg should instead be interpreted as a tacit
endorsement of Justice Stewart’s dissenting opinion, which
argued in favor of recognizing a First Amendment privilege in
criminal cases that could be overcome only if the government
carries the heavy burden of establishing a compelling interest
or need. See Branzburg, 408 U.S. at 739, 743 (Stewart, J.,
dissenting).
We cannot accept this strained reading of Justice Powell’s
opinion. By his own words, Justice Powell concurred in Justice
White’s opinion for the majority, and he rejected the contrary
view of Justice Stewart:
22
I add this brief statement to emphasize what
seems to me to be the limited nature of the Court’s
holding. The Court does not hold that newsmen,
subpoenaed to testify before a grand jury, are without
constitutional rights with respect to the gathering of
news or in safeguarding their sources. Certainly, we
do not hold, as suggested in MR. JUSTICE STEWART’s
dissenting opinion, that state and federal authorities
are free to ‘annex’ the news media as ‘an
investigative arm of government.’ . . .
As indicated in the concluding portion of the
[majority] opinion, the Court states that no
harassment of newsmen will be tolerated. If a newsman
believes that the grand jury investigation is not
being conducted in good faith he is not without
remedy. Indeed, if the newsman is called upon to give
information bearing only a remote and tenuous
relationship to the subject of the investigation, or
if he has some other reason to believe that his
testimony implicates confidential source relationships
without a legitimate need of law enforcement, he will
have access to the court on a motion to quash and an
appropriate protective order may be entered. The
asserted claim to privilege should be judged on its
facts by the striking of a proper balance between
freedom of the press and the obligation of all
citizens to give relevant testimony with respect to
criminal conduct. The balance of these vital
constitutional and societal interests on a case-by-
case basis accords with the tried and traditional way
of adjudicating such questions.
Id. at 709-10 (Powell, J., concurring)(emphasis added).
Justice Powell’s concurrence expresses no disagreement with
the majority’s determination that reporters are entitled to no
special privilege that would allow them to withhold relevant
information about criminal conduct without a showing of bad
faith or other such improper motive, nor with the majority’s
clear rejection of the three-part compelling interest test
23
advocated by the Branzburg reporters. To the extent Justice
Powell addressed any further inquiry that might take place in a
criminal proceeding, he appeared to include within the realm of
harassment a request that “implicates confidential source
relationships without a legitimate need of law enforcement,” id.
at 710 (emphasis added), and he again rejected the dissent’s
contrary view that the heavy burdens of the three-part,
compelling interest test were appropriate:
Moreover, absent the constitutional preconditions that
. . . th[e] dissenting opinion would impose as heavy
burdens of proof to be carried by the State, the court
– when called upon to protect a newsman from improper
or prejudicial questioning – would be free to balance
the competing interests on their merits in the
particular case. The new constitutional rule endorsed
by th[e] dissenting opinion would, as a practical
matter, defeat such a fair balancing and the essential
societal interest in the detection and prosecution of
crime would be heavily subordinated.
Id. at 710 n.* (emphasis added).
For the foregoing reasons, Justice Powell’s concurrence in
Branzburg simply does not allow for the recognition of a First
Amendment reporter’s privilege in a criminal proceeding which
can only be overcome if the government satisfies the heavy
burdens of the three-part, compelling-interest test. Accepting
this premise is “tantamount to our substituting, as the holding
of Branzburg, the dissent written by Justice Stewart . . . for
the majority opinion.” Storer Commc’ns. v Giovan (In re Grand
24
Jury Proceedings), 810 F.2d 580, 584 (6th Cir. 1987). 6 The
Branzburg Court considered the arguments we consider today,
balanced the respective interests of the press and the public in
newsgathering and in prosecuting crimes, and held that, so long
as the subpoena is issued in good faith and is based on a
legitimate need of law enforcement, the government need not make
any special showing to obtain evidence of criminal conduct from
a reporter in a criminal proceeding. The reporter must appear
and give testimony just as every other citizen must. We are not
at liberty to conclude otherwise.
2.
Although Branzburg alone compels us to reject Risen’s claim
to a First Amendment privilege, we are also bound by our circuit
precedent, for this is not the first time we have passed upon
the question of whether and to what extent a reporter’s
privilege can be asserted in criminal proceedings.
a.
6
See also Judith Miller, 438 F.3d at 1148 (“Justice
Powell’s concurring opinion was not the opinion of a justice who
refused to join the majority. He joined the majority by its
terms, rejecting none of Justice White’s reasoning on behalf of
the majority.”); id. (“Justice White’s opinion is not a
plurality opinion. . . . [I]t is the opinion of the majority of
the Court. As such it is authoritative precedent. It says what
it says. It rejects the privilege asserted by” the reporters.);
Scarce v. United States (In re Grand Jury Proceedings), 5 F.3d
397, 400 (9th Cir. 1993) (noting that Justice Powell’s
concurrence does not authorize a “rebalancing [of] the interests
at stake in every claim of privilege made before a grand jury”).
25
In reaching its decision in this case, the district court
relied upon our precedent in LaRouche v. National Broadcasting
Co., 780 F.2d 1134 (4th Cir. 1986). In LaRouche, we considered
a civil litigant’s right to compel evidence from a reporter and
the First Amendment claim of the press to protect its
newsgathering activities. We recognized a reporter’s privilege
in this civil context that could only be overcome if the
litigant met the three-part test that the Branzburg Court
rejected in the criminal context. Specifically, we held that
district courts, before requiring disclosure of a reporter’s
source in a civil proceeding, must consider “(1) whether the
information is relevant, (2) whether the information can be
obtained by alternative means, and (3) whether there is a
compelling interest in the information.” Id. at 1139.
In LaRouche, we followed the lead of other circuits,
including the Fifth Circuit in Miller v. Transamerican Press,
Inc., 621 F.2d 721, modified, 628 F.2d 932 (5th Cir. 1980),
which held that Branzburg did not preclude recognition of a
qualified reporter’s privilege or application of the three-part
test in civil cases. In such cases, of course, “the public
26
interest in effective criminal law enforcement is absent.”
Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C. Cir. 1981). 7
b.
LaRouche, however, offers no authority for us to recognize
a First Amendment reporter’s privilege in this criminal
proceeding. Not only does Branzburg preclude this extension,
the distinction is critical, and our circuit has already
considered and rejected such “a qualified [reporter’s]
privilege, grounded on the First Amendment, against being
compelled to testify in [a] criminal trial.” In re Shain, 978
F.2d 850, 851 (4th Cir. 1992) (emphasis added).
The Shain reporters were held in contempt for their refusal
to comply with subpoenas to testify in the criminal trial of a
former state senator whom they had previously interviewed. At
the time, two of our sister circuits had extended the three-part
test that had been adopted in civil actions to criminal
proceedings, albeit with little to no discussion of the
Branzburg opinion. See United States v. Caporale, 806 F.2d
7
Like the Fifth Circuit, the D.C. Circuit also held “that
the balancing approach employed [in civil actions] survived the
Supreme Court’s decision in Branzburg.” Zerilli v. Smith, 656
F.2d 705, 712 n.43 (D.C. Cir. 1981) (citation omitted). Both
circuits subsequently confirmed that the privilege does not
apply in the absence of harassment or bad faith, and refused to
apply the three-part test to subpoenas issued in criminal
proceedings. See Judith Miller, 438 F.3d at 1149; Smith, 135
F.3d at 971-72.
27
1487, 1503-04 (11th Cir. 1986) (citing Miller, 621 F.2d at 726);
United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983)
(citing Zerilli, 656 F.2d at 713-15).
This court in Shain, however, declined to follow that path.
We did not recognize a broad privilege nor did we extend the
LaRouche three-part test to criminal proceedings. Instead, we
followed Branzburg and held that “absent evidence of
governmental harassment or bad faith, the reporters have no
privilege different from that of any other citizen not to
testify about knowledge relevant to a criminal prosecution.”
Shain, 978 F.2d at 852. We also considered the effect of
Justice Powell’s concurring opinion in Branzburg, explaining
that Justice Powell “joined in the Court’s opinion” and wrote
separately only
to emphasize the Court’s admonishment against official
harassment of the press and to add, “We do not hold .
. . that state and federal authorities are free to
‘annex’ the news media as ‘an investigative arm of
government.’” Justice Powell concluded that when
evidence is presented to question the good faith of a
request for information from the press, a “proper
balance” must be struck “between freedom of the press
and the obligation of all citizens to give relevant
testimony with respect to criminal conduct.”
Id. at 853 (emphasis added) (citation omitted) (quoting
Branzburg, 408 U.S. at 710 (Powell, J., concurring)); see id.
(citing United States v. Steelhammer, 539 F.2d 373, 376 (4th
Cir. 1976) (Winter, J., dissenting), adopted by the court en
28
banc, 561 F.2d 539, 540 (4th Cir. 1977) (per curiam) (noting
that “[i]n Steelhammer, we applied Branzburg to compel testimony
from the press in a civil contempt trial, recognizing that only
when evidence of harassment is presented do we balance the
interests involved” (emphasis added)).
To the extent our court has addressed the issue since
Shain, we have continued to recognize the important distinction
between enforcing subpoenas issued to reporters in criminal
proceedings and enforcing subpoenas issued to reporters in civil
litigation. Subpoenas in criminal cases are driven by the quite
different and compelling public interest in effective criminal
investigation and prosecution, an interest that simply is not
present in civil cases. See Ashcraft v. Conoco, Inc., 218 F.3d
282, 287 (4th Cir. 2000) (applying the LaRouche test to
confidential source information in the civil context, but noting
Branzburg’s “holding that [a] reporter, like [an] ordinary
citizen, must respond to grand jury subpoenas and answer
questions related to criminal conduct he personally observed and
wrote about, regardless of any promises of confidentiality he
gave to subjects of stories” (emphasis added)).
There is good reason for this distinction between civil and
criminal cases. It has roots in both the majority and
concurring opinions in Branzburg, both of which highlight the
critical importance of criminal proceedings and the right to
29
compel all available evidence in such matters. As the Court has
subsequently observed as well:
Th[is] distinction . . . between criminal and
civil proceedings is not just a matter of formalism. .
. . [T]he need for information in the criminal
context is much weightier because “our historic[al]
commitment to the rule of law . . . is nowhere more
profoundly manifest than in our view that ‘the twofold
aim [of criminal justice] is that guilt shall not
escape or innocence suffer.’” [United States v.
Nixon, 418 U.S. 683, 708-09 (1974)] (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)). In light of
the “fundamental” and “comprehensive” need for “every
man’s evidence” in the criminal justice system, 418
U.S. at 709, 710, . . . privilege claims that shield
information from a grand jury proceeding or a criminal
trial are not to be “expansively construed, for they
are in derogation of the search for truth,” id. at
710. The need for information for use in civil cases,
while far from negligible, does not share the urgency
or significance of the criminal subpoena requests in
Nixon. . . . [T]he right to production of relevant
evidence in civil proceedings does not have the same
“constitutional dimensions.” Id. at 711.
Cheney v. United States Dist. Court for the Dist. of Columbia,
542 U.S. 367, 384 (2004) (third alteration in original); see
also Judith Miller, 438 F.3d at 1149; Smith, 135 F.3d at 972.
3.
Like the Branzburg reporters, Risen has “direct information
. . . concerning the commission of serious crimes.” Branzburg,
408 U.S. at 709. Indeed, he can provide the only first-hand
account of the commission of a most serious crime indicted by
the grand jury –- the illegal disclosure of classified, national
security information by one who was entrusted by our government
30
to protect national security, but who is charged with having
endangered it instead. The subpoena for Risen’s testimony was
not issued in bad faith or for the purposes of harassment. See
id. at 707-08; id. at 709-10 (Powell, J., concurring). Risen is
not being “called upon to give information bearing only a remote
and tenuous relationship to the subject of the investigation,”
and there is no “reason to believe that his testimony implicates
confidential source relationships without a legitimate need of
law enforcement.” Id. at 710 (Powell, J., concurring). Nor is
the government attempting to “annex” Risen as its “investigative
arm.” Id. at 709 (internal quotation marks omitted). Rather,
the government seeks to compel evidence that Risen alone
possesses -- evidence that goes to the heart of the prosecution.
The controlling majority opinion in Branzburg and our
decision in Shain preclude Risen’s claim to a First Amendment
reporter’s privilege that would permit him to resist the
legitimate, good faith subpoena issued to him. The only
constitutional, testimonial privilege that Risen was entitled to
invoke was the Fifth Amendment privilege against self-
incrimination, but he has been granted immunity from prosecution
for his potential exposure to criminal liability. Accordingly,
we reverse the district court’s decision granting Risen a
qualified First Amendment reporter’s privilege that would shield
31
him from being compelled to testify in these criminal
proceedings.
III. The Common-Law Privilege Claim
Risen next argues that, even if Branzburg prohibits our
recognition of a First Amendment privilege, we should recognize
a qualified, federal common-law reporter’s privilege protecting
confidential sources. 8 We decline to do so.
A.
In the course of rejecting the First Amendment claim in
Branzburg, the Supreme Court also plainly observed that the
common law recognized no such testimonial privilege:
It is thus not surprising that the great weight
of authority is that newsmen are not exempt from the
normal duty of appearing before a grand jury and
answering questions relevant to a criminal
investigation. At common law, courts consistently
refused to recognize the existence of any privilege
authorizing a newsman to refuse to reveal confidential
information to a grand jury.
Branzburg, 408 U.S. at 685; id. at 693 (“[T]he evidence fails to
demonstrate that there would be a significant constriction of
the flow of news to the public if this Court reaffirms the prior
common-law and constitutional rule regarding the testimonial
obligations of newsmen” (emphasis added)); id. at 698-99 (“[T]he
common law recognized no such privilege, and the constitutional
8
The district court, having recognized a First Amendment
reporter’s privilege, did not address Risen’s claim to a common-
law privilege. See Sterling, 818 F. Supp. 2d at 951 n.3.
32
argument was not even asserted until 1958”); Swidler & Berlin v.
United States, 524 U.S. 399, 410 (1998) (noting that “Branzburg
dealt with the creation of [a] privilege[] not recognized by the
common law” (emphasis added)); see also Judith Miller, 438 F.3d
at 1154 (Sentelle, J., concurring) (Branzburg is “as dispositive
of the question of common law privilege as it is of a First
Amendment privilege”); In re Special Proceedings, 373 F.3d 37,
44 (1st Cir. 2004) (Branzburg “flatly rejected any notion of a
general-purpose reporter’s privilege for confidential sources,
whether by virtue of the First Amendment or a newly hewn common-
law privilege”).
B.
Risen does not take issue with the clarity of Branzburg’s
statements regarding the state of the common law. Rather, he
argues that Federal Rule of Evidence 501, as interpreted by the
Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), grants us
authority to reconsider the question and now grant the
privilege. We disagree.
Federal Rule of Evidence 501, in its current form, provides
that:
[t]he common law – as interpreted by United States
courts in the light of reason and experience – governs
a claim of privilege unless [the United States
Constitution, a federal statute, or the rules
prescribed by the Supreme Court] provide[] otherwise.
Fed. R. Evid. 501 (emphasis added).
33
Congressional enactment of Rule 501 postdates Branzburg,
but the Rule effectively left our authority to recognize common-
law privileges in status quo. The Rule implemented the
previously recognized authority of federal courts to consider
common-law privileges “‘in the light of reason and experience.’”
Jaffee, 518 U.S. at 8 (footnote omitted). “The authors of the
Rule borrowed th[e] phrase from [the Supreme Court’s] opinion in
Wolfle v. United States, 291 U.S. 7, 12 (1934), which in turn
referred to the oft-repeated observation that ‘the common law is
not immutable but flexible, and by its own principles adapts
itself to varying conditions.’” Jaffee, 518 U.S. at 8 (footnote
omitted) (quoting Funk v. United States, 290 U.S. 371, 383
(1933)).
Indeed, Rule 501 seems to be more notable for what it
failed to do, than for what it did. The proposed Rules
originally “defined [nine] specific nonconstitutional privileges
which the federal courts [would have been compelled to]
recognize (i.e. required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to
clergymen, political vote, trade secrets, secrets of state and
other official information, and identity of informer)” and
“provided that only those privileges set forth [therein] or in
some other Act of Congress could be recognized by the federal
courts.” Fed. R. Evid. 501 advisory committee’s note; see also
34
Jaffee, 518 U.S. at 8 n.7 This exclusive list of enumerated
privileges was ultimately rejected. Instead, Congress “left the
law of privileges in its present state and further provided that
privileges shall continue to be developed by the courts of the
United States under” the “reason and experience” standard. Fed.
R. Evid. 501 advisory committee’s note.
Since enactment of Rule 501, the Supreme Court has twice
noted that, while not dispositive of the question of whether a
court should recognize a new privilege, the enumerated
privileges proposed for inclusion in Rule 501 were “thought to
be either indelibly ensconced in our common law or an imperative
of federalism.” United States v. Gillock, 445 U.S. 360, 368
(1980) (declining to recognize under Rule 501 a legislative
privilege for state legislators in a federal, criminal
prosecution, in part, because it was not one of the nine
enumerated privileges recommended by the Advisory Committee);
see also Jaffee, 518 U.S. at 15 (noting that, unlike in Gillock,
the inclusion of the psychotherapist-patient privilege was one
of the nine, and supported the Court’s adoption of the privilege
under Rule 501). Notably absent from the nine enumerated
privileges was one for a reporter-source relationship.
In Jaffee, the Supreme Court recognized a psychotherapist-
patient privilege protecting private communications that took
place during counseling sessions between a police officer and a
35
licensed clinical social worker following a fatal shooting.
Applying Rule 501, the Court weighed the competing interests and
concluded that the plaintiff’s interest in obtaining evidence of
the confidential communications in the ensuing excessive-force
action was outweighed by the patient’s private interest in
maintaining confidence and trust with his mental health provider
and the public’s interest in protecting that privacy in order to
“facilitat[e] the provision of appropriate treatment for
individuals suffering the effects of a mental or emotional
problem.” Id. at 11. As noted above, the Court also relied, in
part, upon the fact that a psychotherapist-patient privilege was
one of the nine, enumerated privileges considered when Rule 501
was adopted and had found near unanimous support in state laws
as well.
Contrary to Risen’s claim on appeal, Rule 501 and the
Supreme Court’s use of it to recognize a psychotherapist-patient
privilege in Jaffee does not authorize us to ignore Branzburg or
support our recognition of a common-law reporter-source
privilege today.
Clearly, neither Rule 501 nor Jaffee overrules Branzburg or
undermines its reasoning. See In re Scarce, 5 F.3d at 403 n.3
(“We discern nothing in the text of Rule 501 . . . that
36
sanctions the creation of privileges by federal courts in
contradiction of the Supreme Court’s mandate” in Branzburg.). 9
“In rejecting the proposed Rules and enacting Rule 501,
Congress manifested an affirmative intention not to freeze the
law of privilege,” but “rather . . . to provide the courts with
the flexibility to develop rules of privilege on a case-by-case
basis.” Trammel v. United States, 445 U.S. 40, 47 (1980)
(internal quotation marks omitted); see also United States v.
Weber Aircraft Corp., 465 U.S. 792, 803 n.25 (1984) (“Rule 501
was adopted precisely because Congress wished to leave privilege
questions to the courts rather than attempt to codify them.”);
United States v. Dunford, 148 F.3d 385, 390-91 (4th Cir. 1998)
(same). Rule 501 thus leaves the door open for courts to adopt
new common-law privileges, and modify existing ones, in
9
Risen’s reliance upon our decision in Steelhammer, 539
F.2d at 377-78 (Winter, J., dissenting), adopted by the court en
banc, 561 F.2d at 540, also does not avail him. In the panel
decision in Steelhammer, Judge Winter stated, in a footnote in
his dissenting opinion, his view that reporters “should be
afforded a common law privilege [under Rule 501] not to testify
in civil litigation between private parties,” but declined to
“prolong th[e] opinion by developing th[e] point.” Steelhammer,
539 F.2d at 377 n.* (Winter, J., dissenting). Given the odd
manner in which the en banc court decided the case, it is
difficult to discern what if any precedential effect remains,
particularly since Branzburg did not preclude recognition of a
First Amendment privilege in the civil context and we recognized
one and adopted the three-part test in LaRouche. In any event,
we are satisfied that Judge Winter’s undeveloped dicta has no
effect one way or the other on the First Amendment or common-law
issues before us today.
37
appropriate cases. But nothing in Rule 501 or its legislative
history authorizes federal courts to ignore existing Supreme
Court precedent.
Even if we were to believe that Jaffee signals that the
Supreme Court might rule differently on the existence of a
common-law reporter’s privilege today, we are not at liberty to
take that critical step. See Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.”). Under Risen’s view of Rule 501
and Jaffee, inferior federal courts would be at liberty to
reconsider common-law privileges that have been rejected by the
Supreme Court, based upon the passage of time. Rule 501 does
not sanction such authority on our part.
Here, “[t]he Supreme Court has rejected a common law
privilege for reporters” and “that rejection stands unless and
until the Supreme court itself overrules that part of
Branzburg.” Judith Miller, 438 F.3d at 1155 (Sentelle, J.,
concurring). Just as the Supreme Court must determine whether a
First Amendment reporter’s privilege should exist, see Judith
Miller, 438 U.S. at 1166 (Tatel, J., concurring), “only the
38
[Supreme Court] and not this one . . . may act upon th[e]
argument” that a federal common-law privilege should now be
recognized under Rule 501, id. at 1155 n.3 (Sentelle, J.,
concurring).
C.
Even if we were at liberty to reconsider the existence of a
common-law reporter’s privilege under Rule 501, we would decline
to do so.
As the Supreme Court made clear in Jaffee, the federal
courts’ latitude for adopting evidentiary privileges under Rule
501 remains quite narrow indeed. Because they “contravene the
fundamental principle that the public has a right to every man’s
evidence,” University of Pa., 493 U.S. at 189 (internal
quotation marks and alteration omitted), such privileges “are
not lightly created nor expansively construed, for they are in
derogation of the search for truth,” Nixon, 418 U.S. at 710.
“When considering whether to recognize a privilege, a court must
begin with ‘the primary assumption that there is a general duty
to give what testimony one is capable of giving, and that any
exemptions which may exist are distinctly exceptional, being so
many derogations from a positive general rule.” Virmani v.
Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) (quoting
Jaffee, 518 U.S. at 9). New or expanded privileges “may be
recognized ‘only to the very limited extent that permitting a
39
refusal to testify or excluding relevant evidence has a public
good transcending the normally predominant principle of
utilizing all rational means for ascertaining truth.’” Dunford,
148 F.3d at 391 (quoting Trammel, 445 U.S. at 50).
Risen contends that the public and private interests in
recognizing a reporter’s privilege “are surely as great as the
significant public interest at stake in patient and
psychotherapist communication.” Risen’s Brief at 50. But we
see several critical distinctions.
1.
First, unlike in the case of the spousal, attorney-client,
and psychotherapist-patient privileges that have been
recognized, the reporter-source privilege does not share the
same relational privacy interests or ultimate goal. The
recognized privileges promote the public’s interest in full and
frank communications between persons in special relationships by
protecting the confidentiality of their private communications.
Jaffee, 518 U.S. at 10. A reporter’s privilege might also
promote free and full discussion between a reporter and his
source, but Risen does not seek to protect from public
disclosure the “confidential communications” made to him. Id.
Risen published information conveyed to him by his source or
sources. His primary goal is to protect the identity of the
person or persons who communicated with him because their
40
communications violated federal, criminal laws. See e.g., 1
McCormick on Evidence § 72 n.7 (Kenneth S. Broun ed., 7th ed.
2013) (requiring for all privileges that “[t]he communications
must originate in a confidence that they will not be disclosed”
(internal quotation marks omitted)). In sum, beyond the shared
complaint that communications might be chilled in the absence of
a testimonial privilege, Risen’s proffered rationale for
protecting his sources shares little in common with the
privileges historically recognized in the common law and
developed under Rule 501. 10
We are also mindful that the Court in Branzburg considered
and was unpersuaded by a virtually identical argument that a
reporter’s privilege was necessary to prevent a chilling effect
on newsgathering.
We are admonished that refusal to provide a First
Amendment reporter’s privilege will undermine the
freedom of the press to collect and disseminate news.
But this is not the lesson history teaches us. As
noted previously, the common law recognized no such
privilege, and the constitutional argument was not
10
This important distinction was also not lost on the
Branzburg dissent. In the context of advocating a First
Amendment reporter’s privilege, the dissent also noted the
“longstanding presumption against creation of common-law
testimonial privileges,” but distinguished common-law privileges
from the constitutional one sought because the former are
“grounded in an individual interest which has been found . . .
to outweigh the public interest in the search for truth rather
than in the broad public concerns that inform the First
Amendment.” See Branzburg, 408 U.S. at 738 n.24 (Stewart,
dissenting) (internal quotation marks omitted).
41
even asserted until 1958. From the beginning of our
country the press has operated without constitutional
protection for press informants, and the press has
flourished. The existing constitutional rules have
not been a serious obstacle to either the development
or retention of confidential news sources by the
press.
Id. at 698-99; see also id. at 693 (“[T]he evidence fails to
demonstrate that there would be a significant constriction of
the flow of news to the public if this Court reaffirms the prior
common-law and constitutional rule regarding the testimonial
obligations of newsmen.”).
Branzburg also weighed the public interest in newsgathering
against the public’s interest in enforcing its criminal laws:
More important, it is obvious that agreements to
conceal information relevant to commission of crime
have very little to recommend them from the standpoint
of public policy. Historically, the common law
recognized a duty to raise the “hue and cry” and
report felonies to the authorities. Misprison of a
felony – that is, the concealment of a felony “which a
man knows, but never assented to . . . [so as to
become] either principal or accessory,” 4 W.
Blackstone, Commentaries, was often said to be a
common-law crime. . . . It is apparent from [the
federal statute defining the crime of misprison], as
well as from our history and that of England, that
concealment of crime and agreements to do so are not
looked upon with favor. Such conduct deserves no
encomium, and we decline now to afford it First
Amendment protection . . . .
Id. at 695-97; see also id. at 695 (“Accepting the fact,
however, that an undetermined number of informants not
themselves implicated in crime will nevertheless, for whatever
reason, refuse to talk to newsmen if they fear identification by
42
a reporter in an official investigation, we cannot accept the
argument that the public interest in possible future news about
crime from undisclosed, unverified sources must take precedence
over the public interest in pursuing and prosecuting those
crimes reported to the press by informants and in thus deterring
the commission of such crimes in the future.”).
We fail to see how these policy considerations would differ
in a Rule 501 analysis. Unlike the individual privacy interests
in confidential communications shared by those protected by a
common-law privilege, “[t]he preference for anonymity of those
confidential informants involved in actual criminal conduct . .
., while understandable, is hardly deserving of constitutional
protection.” Id. at 691. The preference is equally undeserving
of protection under the common law. Indeed, even those common-
law privileges that do protect confidential communications
between persons in special relationships have yielded where the
communication furthers or shields ongoing criminal activity.
See United States v. Zolin, 491 U.S. 554, 562-63 (1989) (“The
attorney-client privilege must necessarily protect the
confidences of wrongdoers, but the reason for that protection –
the centrality of open client and attorney communication to the
proper functioning of our adversary system of justice – ceases
to operate at a certain point, namely, where the desired advice
refers not to prior wrongdoing, but to future wrongdoing”)
43
(internal quotation marks omitted); Clark v. United States, 289
U.S. 1, 15 (1933) (“A client who consults an attorney for advice
that will serve him in the commission of a fraud will have no
help from the law. He must let the truth be told.”); Dunford,
148 F.3d at 391 (declining to decide whether parent-minor child
testimonial privilege exists in criminal proceedings because,
“even if such a privilege were to be recognized, it would have
to be narrowly defined and would have obvious limits, . . . such
as where . . . ongoing criminal activity would be shielded by
assertion of the privilege”).
Just as the First Amendment and the common-law attorney-
client privilege do not “confer[] a license . . to violate valid
criminal laws,” Branzburg, 408 U.S. at 691, the common law would
not extend so far as to protect illegal communications that took
place between Risen and his source or sources in violation of
the Espionage Act.
2.
Risen’s reliance upon state statutes and decisions that
have adopted a reporter’s shield also fails to persuade us that
we can or should create a federal common-law privilege.
At the time of Branzburg, “[a] number of States ha[d]
provided newsmen a statutory privilege of varying breadth.” Id.
at 689. And, as Risen argues, nearly all of the remaining
states have since “recognized a reporter’s privilege in one
44
context or another.” Risen’s Brief at 55. Generally speaking,
such “policy decisions of the States bear on the question
whether federal courts should recognize a new privilege or amend
the coverage of an existing one.” Jaffee, 518 U.S. at 12-13.
However, there is still no “uniform judgment of the States” on
the issue of a reporter’s privilege or shield, nor was the
privilege “among the nine specific privileges recommended by the
Advisory Committee in its proposed privilege rules.” Id. at 14.
If anything, the varying actions of the states in this area only
reinforces Branzburg’s observation that judicially created
privileges in this area “would present practical and conceptual
difficulties of a high order,” Branzburg, 408 U.S. at 704, that
are best dealt with instead by legislatures of the state and
federal governments. As the Court noted in Branzburg:
At the federal level, Congress has freedom to
determine whether a statutory newsman’s privilege is
necessary and desirable and to fashion standards and
rules as narrow or broad as deemed necessary to deal
with the evil discerned and, equally important, to
refashion those rules as experience from time to time
may dictate. There is also merit in leaving state
legislatures free, within First Amendment limits, to
fashion their own standards in light of the conditions
and problems with respect to the relations between law
enforcement officials and press in their own areas. It
goes without saying, of course, that we are powerless
to bar state courts from responding in their own way
and construing their own constitutions so as to
recognize a newsman's privilege, either qualified or
absolute.
45
Id. at 706; cf. Judith Miller, 438 F.3d at 1161 (Henderson, J.,
concurring) (noting that courts “should proceed as cautiously as
possible when erecting barriers between us and the truth,
recognizing that the Legislature remains the more appropriate
institution to reconcile the competing interests – prosecuting
criminal acts versus constructing the flow of information to the
public – that inform any reporter’s privilege to withhold
relevant information from a bona fide grand jury” (citation and
internal quotation marks omitted)).
The Branzburg Court’s observations regarding the practical
difficulties of defining and managing a reporter’s privilege,
and its “unwilling[ness] to embark the judiciary on a long and
difficult journey to such an uncertain destination,” Branzburg,
408 U.S. at 703, are well-taken, and we see nothing in “reason
[or] experience” that would lead us to a contrary view today,
Fed. Rule Evid. 501. Since Branzburg, additional state
legislatures have exercised their “free[dom], within First
Amendment limits, to fashion their own standards in light of the
conditions and problems with respect to the relations between
law enforcement officials and press in their own areas.”
Branzburg, 408 U.S. at 706. Despite continued efforts, however,
Congress has still not provided a reporter’s shield by federal
statute. See id. at 689 & n.28 (noting the earlier federal
legislative attempts to provide a privilege).
46
We decline the invitation to step in now and create a
testimonial privilege under common law that the Supreme Court
has said does not exist and that Congress has considered and
failed to provide legislatively. If Risen is to be protected
from being compelled to testify and give what evidence of crime
he possesses, in contravention of every citizen’s duty to do so,
we believe that decision should rest with the Supreme Court,
which can revisit Branzburg and the policy arguments it
rejected, or with Congress, which can more effectively and
comprehensively weigh the policy arguments for and against
adopting a privilege and define its scope.
IV. The LaRouche Test
For the foregoing reasons, we hold that there is no First
Amendment or federal common-law privilege that protects Risen
from having to respond to the government’s subpoena and give
what evidence he has of the criminal conduct at issue. We note,
however, that even if we were to recognize a qualified
reporter’s privilege and apply the three-part LaRouche test to
the inquiry, as the district court did, we would still reverse.
In LaRouche, we recognized a reporter’s privilege in civil
cases that can be overcome if (1) the information is relevant,
(2) the information cannot be obtained by alternative means, and
(3) there is a compelling interest in the information.
47
LaRouche, 780 F.2d at 1139. Here, the government has met all
three prongs.
A.
There is no dispute that the information sought from Risen
is relevant. Moreover, it “can[not] be obtained by alternative
means.” Id. at 1139. The circumstantial evidence that the
government has been able to glean from incomplete and
inconclusive documents, and from the hearsay statements of
witnesses with no personal or first-hand knowledge of the
critical aspects of the charged crimes, does not serve as a fair
or reasonable substitute.
1.
The district court held that the government had failed to
establish the second factor of the LaRouche test because it has
successfully obtained substantial circumstantial evidence that
Sterling is the source of the illegally-disclosed information.
Fundamentally, the holding appears to be grounded in the premise
that circumstantial evidence of guilt should serve as an
adequate substitute for a direct, first-hand account of the
crime because “‘circumstantial evidence is no less probative
than direct evidence.’” Sterling, 818 F. Supp. 2d at 956
(quoting Stamper v. Muncie, 944 F.2d 170, 174 (4th Cir. 1991)).
Because the district court believed that the government has
uncovered substantial circumstantial evidence that Sterling is
48
guilty, the court’s ruling deprives the jury of the best and
only direct evidence that supports the prosecution of this
crime.
It is true, of course, that a defendant cannot ordinarily
overturn a conviction based solely upon the claim that the jury
had only circumstantial evidence to consider. See United States
v. Bonner, 648 F.3d 209, 213 (4th Cir. 2011); Stamper, 944 F.2d
at 174. But this does not mean that circumstantial evidence of
a fact presented to a jury will always be as convincing as
direct evidence of it, particularly where the identity of the
perpetrator is contested. See Bonner, 648 F.3d at 214
(reversing conviction because “[w]hile it is possible to convict
a defendant solely on circumstantial evidence, in cases where
the identity of the perpetrator is in dispute, usually there is
some specific ‘identity’ evidence or uncontroverted physical
evidence that links the defendant to the scene of the crime”).
Nor is it likely that a jury, charged with finding guilt beyond
a reasonable doubt, would equate circumstantial evidence of the
crucial facts with the direct testimony of the only witness with
first-hand knowledge of them. The nature and strength of the
evidence is very different. See 1 McCormick on Evidence § 185
(Kenneth S. Broun ed., 7th ed. 2013) (“Direct evidence is
evidence which, if believed, resolves a matter in issue.
Circumstantial evidence also may be testimonial, but even if the
49
circumstances depicted are accepted as true, additional
reasoning is required to reach the desired conclusion.”
(footnote omitted)).
As the government correctly points out, “no circumstantial
evidence, or combination thereof, is as probative as Risen’s
testimony or as certain to foreclose the possibility of
reasonable doubt.” Government’s Brief at 14. See, e.g., New
York Times Co. v. Gonzales, 459 F.3d 160, 170 (2d Cir. 2006)
(“[A]s the recipients of the disclosures, [the reporters] are
the only witnesses –- other than the source(s) –- available to
identify the conversations in question and to describe the
circumstances of the leaks. . . . There is simply no substitute
for the evidence they have.”); Judith Miller, 438 F.3d at 1181
(Tatel, J., concurring) (noting that while “special counsel
appears already to have at least circumstantial grounds for a
perjury charge, if nothing else[,] [the reporter’s] testimony .
. . could settle the matter”). Risen is the only eyewitness to
the crime. He is inextricably involved in it. Without him, the
alleged crime would not have occurred, since he was the
recipient of illegally-disclosed, classified information. And
it was through the publication of his book, State of War, that
the classified information made its way into the public domain.
He is the only witness who can specify the classified
50
information that he received, and the source or sources from
whom he received it.
In any event, the LaRouche test does not ask whether there
is other evidence, circumstantial or direct, that the government
might rely upon as a substitute to prove guilt; it asks “whether
the information [sought from the reporter] can be obtained by
alternative means.” LaRouche, 780 F.2d at 1139 (emphasis
added). Clearly, it cannot be. There are no other witnesses
who can offer this testimony, nor is it found in any other form
of evidence. Cf. Gonzales, 459 F.3d at 172 n.5 (noting that
such circumstances do not fall within “the paradigmatic case
where a newsperson is one of many witnesses to an event and the
actions and state of mind of the newsperson are not in issue”).
Other than Sterling himself, Risen is the only witness who can
identify Sterling as a source (or not) of the illegal leak.
2.
Even if circumstantial evidence could serve as a reasonable
alternative to direct evidence, the circumstantial evidence in
this case does not possess the strength the district court
ascribes to it -- particularly when one remembers the
prosecution’s high burden of proof.
Sterling was not the only CIA agent involved in Classified
Program No. 1. Moreover, Sterling met with staff members of the
SSCI to voice complaints about the program not more than a month
51
before the government learned that Risen had the classified
information, and Sterling claims to be in possession of evidence
that an SSCI employee was implicated in a previous unauthorized
disclosure of classified information that made its way to
Risen. 11
During these proceedings, Sterling has often represented
that he intends to point his finger at these third parties as
the source of the leak. 12 The district court’s ruling, however,
would require the government to compel the testimony of every
other possible source, sources who could do little more than
assert their own privilege or offer a simple denial of guilt,
while allowing Risen, the only person who can identify the
perpetrator or perpetrators, to protect his sources from the
11
See, e.g., J.A. 893 (asserting that Sterling has been
“given discovery that stated unequivocally that [one SSCI
staffer] was fired from her SSCI job for leaking information to
Mr. Risen”).
12
See J.A. 667 (stating that “[a]n obvious defense at trial
will be that any disclosure to the third party was done by
another person or by multiple individuals – and not by Mr.
Sterling”); J.A. 665 (noting that “while the Indictment alleges
Mr. Sterling had familiarity with ‘Classified Program No. 1’
since 1998, and knew James Risen since at least November 2001,
there is no indication that Mr. Risen came into possession of
any information relating to ‘Classified Program No. 1’ until
April 2003, less than a month after Senate staffers learned
about the Program” (citation omitted)); J.A. 667 (arguing that
“[t]he timing [of Sterling’s contact with the Senate staffers
and Risen’s contact with the CIA] is highly suggestive that it
was one of the staff members and not Mr. Sterling who unlawfully
disclosed classified information”).
52
criminal consequences of their behavior. By depriving the jury
of the only direct testimony that can link Sterling to the
charged crimes and allowing Sterling to present argument that
several others could have been the primary source or sources,
the district court would allow seeds of doubt to be placed with
the jurors while denying the government a fair opportunity to
dispel those doubts. As the government notes, the ruling would
open the door for Sterling to mislead the jury and distort the
truth-seeking function of the trial.
The telephone records and e-mail messages, and the hearsay
statements by witnesses who were in contact with Sterling, which
were relied upon by the district court to uphold a reporter’s
privilege, also fail to serve as reasonable alternatives to
Risen’s first-hand testimony.
Telephone records, e-mail messages, and the like indicate
that Risen and Sterling were communicating with one another.
However, it appears that none of the records contain classified
information, and the contents of the conversations and
communications are otherwise largely unknown. This category of
proof is an obviously poor substitute for Risen’s direct
testimony. See e.g., Judith Miller, 438 F.3d at 1175 (Tatel,
J., concurring) (“Insofar as the confidential exchange of
information leaves neither paper trail nor smoking gun, the
great majority of leaks will likely be unprovable without
53
evidence from either leaker or leakee. Of course, in some
cases, circumstantial evidence such as telephone records may
point towards the source, but for the party with the burden of
proof, particularly the government in a criminal case, such
evidence will often be inadequate.”).
The proffered hearsay testimony from the former CIA agent
and Sterling’s then-girlfriend also pales in comparison to
Risen’s first-hand testimony. Even assuming that the hearsay
testimony would be admissible, which we need not decide today,
it is not a reasonable equivalent to Risen’s testimony.
It is represented to us that Sterling’s girlfriend will
testify that Sterling told her at some unspecified point that he
had a meeting with “Jim” and, during a much later trip to a
bookstore, told her that Chapter 9 of State of War was about his
work in the CIA. However, it is undisputed that Risen and
Sterling had been in contact about other matters, such as his
firing by the CIA, and the proffered testimony tells us nothing
about the substance of any leak of classified information.
Moreover, the persons to whom Sterling points as alternative
sources of the leak would have been privy to the same
information at about the same time, and Risen has not disclosed
whether there is more than one primary source of classified
information.
54
It is also represented to us that a former CIA agent will
testify that Risen told him that Sterling was his source. This
characterization of the hearsay testimony, however, is much more
generous than warranted. The proffered testimony does not
establish whether Sterling was the primary or only source of
classified information that made its way into State of War, nor
does it address the breadth of information found in the book.
It too is a poor substitute for Risen’s testimony.
Additionally, Sterling has indicated that he will offer
another defense to this hearsay testimony, either through cross-
examination of Risen or through other expert testimony.
Specifically, Sterling has sought to present expert testimony
that “[j]ournalists commonly use techniques to disguise their
sources,” and that “statements made to third parties, including
prospective sources, purporting to identify other sources from
whom the author has obtained information are inherently suspect
and should not be accepted at face value.” J.A. 863. Whether
or not Sterling can persuade the jury on this point, the
argument is not a lost one. Unlike Risen, the former CIA agent
simply cannot testify that he knows Sterling to be Risen’s
source, because he does not know that to be true. He cannot
refute the possibility that Risen might have falsely pointed the
finger at Sterling to protect his real source from scrutiny, or
55
to entice the former CIA agent to provide similar or confirming
information. Only Risen can answer these questions.
Accordingly, even if we were to recognize a reporter’s
privilege that could deprive a jury of the only direct, first-
hand evidence of guilt or innocence, Risen’s statement to the
former CIA agent would be in violation of the confidentiality
agreement that he relies upon to create the privilege.
Notwithstanding any evidence of a standard journalistic practice
of deception in investigative techniques, Risen has waived any
privilege by violating the promise of confidentiality and
disclosing the information to a third party. To rule otherwise
would not only allow journalists to protect their confidential
sources in criminal proceedings, but would also permit
journalists to promise confidentiality to those engaged in
ongoing criminal conduct, while at the same time disclosing
their identities to anyone except law enforcement, grand juries
investigating the crimes, and juries called upon to determine
innocence or guilt.
Clearly, Risen’s direct, first-hand account of the criminal
conduct indicted by the grand jury cannot be obtained by
alternative means, as Risen is without dispute the only witness
who can offer this critical testimony. The information sought
from Risen is not reasonably or fairly equaled by the
56
inconclusive records of phone calls and emails, or the hearsay
testimony of the other witnesses.
B.
The government has also demonstrated a compelling interest
in presenting Risen’s testimony to the jury.
“It is ‘obvious and unarguable’ that no governmental
interest is more compelling than the security of the Nation.”
Haig v. Agee, 453 U.S. 280, 307 (1981). This interest extends
to “protecting both the secrecy of information to our national
security and the appearance of confidentiality so essential to
the effective operation of our foreign intelligence service.”
United States v. Abu Ali, 528 F.3d 210, 247 (4th Cir. 2008)
(quoting CIA v. Sims, 471 U.S. 159, 175 (1985)). Clearly, the
government also has a compelling interest in obtaining direct
evidence that Sterling compromised these critical national-
security interests by disclosing classified information in
violation of validly-enacted criminal laws, and in presenting
this evidence to the jury charged with determining his guilt or
innocence. See LaRouche, 780 F.2d at 1139.
Risen’s testimony is the best evidence to prove Sterling’s
guilt beyond a reasonable doubt to a jury charged with the
search for the truth. He is the only one who can identify
Sterling as the perpetrator of the charged offenses, and he is
the only one who can effectively address Sterling’s expected
57
efforts to point the finger at others. If Risen identifies
Sterling as his source, he will have provided unequaled evidence
of guilt on this point, yet not deprived Sterling of his defense
that the information in Risen’s book was not, in fact, national
defense information at all. And should Risen identify different
or additional sources of national defense information, which
could exculpate Sterling, the government maintains an equally
compelling interest in obtaining the only available inculpatory
evidence against all who jeopardized the security of the United
States and at least one of its covert assets.
To date, Sterling has not sought to compel Risen to testify
regarding the identity of his source, and he professes to
“take[] no position” as to whether Risen has properly invoked a
reporter’s privilege. Defendant-Appellee’s Brief at 5.
Sterling has, however, seized upon the government’s unsuccessful
attempts to compel Risen’s testimony to repeatedly point out
“how little evidence the Government really has [against him] in
this case.” J.A. 892. Sterling even goes so far as to point
out the absence of direct evidence of his guilt, arguing that:
[w]hile it is crystal clear that the Government
believes . . . that Mr. Sterling was at least one of
the sources for State of War, the Government admits
now publicly that it has no direct evidence that Mr.
Sterling ever told Mr. Risen anything about Classified
Program No. 1.
58
J.A. 892 (emphasis added); see also J.A. 893 (asserting that
“[t]he Government now admits that its case is entirely
speculative even as to venue. It admits that it has ‘no direct
evidence, other than Risen’s testimony, that establishes where
the substantive disclosures of classified information occurred’
. . . . In short, the Government is so fixated on compelling
Mr. Risen’s testimony –- or perhaps jailing him –- that it is
willing to concede that its case is weak and that it needs Mr.
Risen . . . to come to the rescue.” (emphasis added) (citation
omitted)). Hardly a better argument could be made as to why the
evidence sought from Risen is unavailable from alternative
sources and why the government has demonstrated a compelling
need for it.
V.
For the foregoing reasons, we reverse the district court’s
order granting Risen’s motion to quash his trial subpoena and
denying the government’s motion in limine to admit his
testimony, which would allow Risen to protect the identity of
the source of the classified, national security information that
the grand jury found probable cause to believe was illegally
leaked to Risen.
59
GREGORY, Circuit Judge, writing for the court on Issues II and
III:
VI. District Court’s Suppression Order
The Government challenges the district court’s order
excluding two of its witnesses as a sanction for violating a
discovery order. The discovery order at issue, entered by the
district court with the parties’ consent, provided that all
Giglio 13 material had to be turned over to the defense no later
than five calendar days prior to the start of trial. The trial
was initially slated to begin on September 12, 2011. However,
in early July 2011, Sterling and the Government requested a
continuance based on the complexity of the pretrial discovery
issues. See 18 U.S.C. § 3161(h)(7)(B)(ii). The district court
agreed, rescheduling the trial to begin on October 17, 2011.
Thus, the new discovery deadline was October 12, 2011, five days
prior to the trial date.
During the months leading up to trial, the Government
produced nearly 20,000 pages of discovery material, along with
various items in electronic format. As the trial date
approached, the Government continued to search the CIA’s files,
and at the eleventh hour it discovered impeachment materials in
the personnel files of six of its witnesses. Due to the risk of
13
Giglio v. United States, 405 U.S. 150 (1972) (requiring
the government to disclose to the defendant prior to trial any
evidence tending to impeach a prosecution witness).
60
classified information being contained in the CIA’s files, all
of this discovery material had to be presented to the CIA for a
line-by-line classification review before the information could
be turned over to the defense.
The CIA completed its line-by-line review of the disputed
material and provided it to the Government on the evening of
October 12, 2011. The Government turned the information over to
the defense on the morning of October 13, 2011—the day after the
discovery period expired.
At a pre-trial hearing on October 13, the defense did not
object to the late disclosure. At a hearing on October 14, the
Friday before the Monday on which the trial was to commence, the
district court noted that the Government had not timely complied
with the discovery schedule. The Government apologized for the
delay and thanked the defense for not objecting—at which point,
defense counsel lodged an objection. In addressing a possible
remedy, the defense stated the court could grant a brief
continuance, but observed that this option would not be
particularly palatable to the court. The defense then stated
that the court could sanction the Government by striking a
witness. At that point the district court decided to strike two
witnesses, to “even up the playing field.” J.C.A. 577.
The Government objected to the court’s order arguing that
the delay in production was not in bad faith. As an alternative
61
sanction for the delay, the Government suggested that the court
grant a continuance and offered to assist the defense in
locating three people whose unfavorable ratings of a CIA
colleague comprised a portion of the Giglio material as to that
colleague. The court asked the defense about its schedule,
seeking to determine whether counsel’s other obligations would
accommodate a brief continuance. However, the court had already
struck two crucial prosecution witnesses, and the defense
preferred this sanction to a continuance. Thus, although the
court subsequently found the Government did not act in bad
faith, it maintained its decision to strike the two witnesses.
We have jurisdiction over the Government’s appeal of this
order pursuant to 18 U.S.C. § 3731.
The Due Process Clause requires the prosecution to disclose
upon request evidence that is favorable to the defense and
material to guilt or punishment. United States v. Higgs, 663
F.3d 726, 734-35 (4th Cir. 2011). Evidence is favorable if it
is exculpatory, Brady v. Maryland, 373 U.S. 83 (1963), or if it
may be used for impeachment, Giglio v. United States, 405 U.S.
150 (1972). The government breaches its duty if it fails to
produce evidence that it is obligated to turn over to the
defense, or if it fails to timely comply with a discovery order
in turning over required evidence. A failure to disclose
violates due process only if the evidence in question (1) is
62
favorable to the defendant because it is either exculpatory or
impeaching; (2) was suppressed by the government; and (3) is
material in that its suppression prejudiced the defendant.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Vinson v.
True, 436 F.3d 412, 420 (4th Cir. 2006). Undisclosed evidence
is material when its cumulative effect is such that “there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)
(internal quotation marks and citation omitted). A reasonable
probability is one sufficient to undermine confidence in the
outcome. Id. at 434.
When the government’s contumacious conduct involves a delay
in producing discovery, rather than a failure to turn over
required materials, the relevant inquiry is “whether the
defendant’s counsel was prevented by the delay from using the
disclosed material effectively in preparing and presenting the
defendant’s case.” United States v. Ingraldi, 793 F.2d 408,
411-12 (1st Cir. 1986). “As long as evidence is disclosed
before it is too late for the defendant to make effective use of
it, there is no due process violation.” United States v.
Russell, 971 F.2d 1098, 1112 (4th Cir. 1992) (discussing
allegation of delay in producing exculpatory evidence in
violation of Brady).
63
The district court is permitted, but not required, to
impose sanctions upon the government’s failure to timely comply
with a discovery order. Fed. R. Crim. P. 16(d)(2); see United
States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001). If the court
decides to impose a sanction, it may:
(A) order that party to permit the discovery or
inspection; specify its time, place, and manner;
and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the
undisclosed evidence; or
(D) enter any other order that is just under the
circumstances.
Fed. R. Crim. P. 16(d)(2). “A continuance is the preferred
sanction.” United States v. Hammoud, 381 F.3d 316, 336 (4th
Cir. 2004) (en banc) (citing United States v. Gonzales, 164 F.3d
1285, 1292 (10th Cir. 1999)), vacated on other grounds, 543 U.S.
1097 (2005).
When the government fails to timely provide Giglio
material, the district court’s determination of whether to
impose a sanction, and what sanction to impose, is reviewed for
abuse of discretion. Hammoud, 381 F.3d at 336. “A district
court abuses its discretion only where it ‘has acted arbitrarily
or irrationally[,] has failed to consider judicially recognized
factors constraining its exercise of discretion, or when it has
relied on erroneous factual or legal premises.’” L.J. v.
64
Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (quoting United States
v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)); see James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). Likewise, a district
court abuses its discretion when it commits an error of law.
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007); see
United States v. Wilson, 624 F.3d 640, 661 n.24 (4th Cir. 2010)
(“It is an abuse of discretion for the district court to commit
a legal error—such as improperly determining whether there was a
Brady violation—and that underlying legal determination is
reviewed de novo.”).
In fashioning a remedy for a Giglio violation, the district
court must consider several factors: the reason for the
government’s delay, and whether the government acted
intentionally or in bad faith; the degree of prejudice, if any,
suffered by the defendant; and whether any less severe sanction
will remedy the prejudice to the defendant and deter future
wrongdoing by the government. Hammoud, 381 F.3d at 336 (citing
United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997));
Gonzales, 164 F.3d at 1292. “When a court sanctions the
government in a criminal case for its failure to obey court
orders, it must use the least severe sanction which will
adequately punish the government and secure future compliance.”
Hastings, 126 F.3d at 317; see also United States v. Ivy, 83
F.3d 1266, 1280 (10th Cir. 1996). Indeed, it “‘would be a rare
65
case where, absent bad faith, a district court should exclude
evidence.’” Hammoud, 381 F.3d at 336 (quoting United States v.
Golyanzky, 291 F.3d 1245, 1249 (10th Cir. 2002)).
Neither the district court nor Sterling suggests that the
Government acted in bad faith, and our review of the record
dispels any such notion. It is clear that the sheer volume of
materials, along with the inherent delays involved in
classification review, was the genesis of the Government’s
error. The other contributing factor, of course, was the
Government’s failure to recognize the necessity of reviewing the
personnel files of likely witnesses at an earlier stage of the
discovery process. We cannot, of course, condone the
Government’s oversight; as Sterling points out, the Government
had many months to examine the relevant records, and the
evidence at issue here would have been an obvious source for
potential Giglio material. However, other factors guide our
decision.
Sterling suggests that because the material was not
submitted by the discovery deadline, he “could not possibly have
fully investigated and developed the belatedly-disclosed
evidence prior to the start of trial, three to four days
66
later.” 14 (Appellee Sterling’s br. at 6). Although we do not
take lightly the impact of the Government’s delay on Sterling’s
ability to prepare, it is difficult to imagine that Sterling
could have fully prepared with regard to the Giglio material if
he received it on the last day of the discovery period, but
“could not possibly” have prepared having received the material
the next day, four days prior to trial. Sterling alleges that,
if he had received the Giglio material at an earlier time, he
could have thoroughly investigated the information and the
witnesses to which that information pertained. As to the error,
the prejudice from the brief delay in disclosure could plainly
have been alleviated with a continuance.
Both Sterling and the district court suggest the Government
should have produced the Giglio material earlier in the
discovery process. Although efforts at earlier review and
disclosure of the relevant personnel files might have
ameliorated the error, and would certainly have eased the
14
Indeed, the possibility of delay could not have come as a
surprise. The parties submitted to the district court a letter
accompanying the proposed pretrial order; this letter
characterized the proposed discovery schedule as “very
aggressive” given the plethora of classified materials, and
acknowledged that the parties might have difficulty meeting the
deadlines they jointly proposed. The letter further provided
that the parties “have agreed to remain flexible with regard to
the proposed filing deadlines without having to change any of
the proposed hearing dates if at all possible.” (E.D. Va. PACER
docket entry 146, filed Aug. 4, 2011).
67
defense’s undoubtedly hectic pretrial preparations, the
Government was not obligated to accelerate its production to
complete discovery in advance of the deadline – a deadline to
which the parties and the district court agreed. We can only
find error in the Government’s one-day delay in production—not
in its perhaps ill-advised document review strategy, nor in its
failure to produce the materials at an earlier stage of the
discovery process.
We are convinced, moreover, that the Government has been
adequately chastened, and that it will proceed more judiciously
in the future. Further, as the Government is surely aware, any
similar future transgression will not be forgiven as easily.
In sum, although the district court did not abuse its
discretion by imposing a sanction, the sanction that it chose to
impose was simply too severe a response to conduct that was not
undertaken in bad faith, that can be remedied with a
continuance, and that is unlikely to be repeated. As we said in
Hammoud, a continuance is the preferred sanction for a delay in
production of Giglio material. Nothing in the record suggests
that Sterling would not have been able to make use of the
impeachment evidence if given a continuance. See Golyansky, 291
F.2d at 1249-50. We discern no justification for the more
severe sanction of striking witnesses. Accordingly, we reverse
the district court’s order striking the two witnesses.
68
VII. CIPA Ruling
Prior to trial the Government moved for a protective order,
pursuant to the Classified Information Procedures Act (“CIPA”),
18 U.S.C. app. 3 § 6, prohibiting the disclosure of classified
and sensitive information. The list of protected information
included:
[] The true name of any current or former covert CIA
employee, or other information (such as a physical
description) that reasonably could be expected to
identify any current or former covert CIA employee,
with the exception of those current or former covert
CIA employees who testify using their full, true
names.
[] The true name of any CIA employee, covert or
overt, who testifies using his or her last initial
only.
J.C.A. 400. The Government sought to protect the identities of
some of its witnesses — as relevant here, current or former CIA
operatives — through use of a screen or light disguises (wigs,
false beards, half glasses), use of a non-public entrance to the
courtroom, and, of critical importance to this appeal, by
allowing the witnesses to use last initials rather than their
full names (for example, “Mr. D.” instead of John Doe).
The district court initially granted in part and denied in
part the Government’s request for security measures when the CIA
operatives testified. The court agreed that the CIA operatives
would not have to reveal their names, and allowed that those
witnesses could use a non-public entrance to the courtroom. The
69
court stated that no sketch artists would be permitted in the
courtroom, but denied the Government’s request for the witnesses
to testify from behind a screen. 15 The Government moved for
reconsideration of this ruling, stating that the witnesses
needed more protection than was permitted by the district
court’s prior ruling. Specifically, the Government argued for
the use of a portable screen between the witnesses and the
public, 16 or permitting the witnesses to testify wearing light
disguises. Sterling opposed the Government’s motion for
reconsideration, stating that the Government had offered no new
information justifying reconsideration of the court’s prior
ruling. Sterling also contended that the security measures
proposed by the Government would infringe upon Sterling’s right
to a public trial and to confront the witnesses against him. He
contended that the use of screens or disguises was unduly
suggestive of the existence of national defense information,
problematic because one of his planned defenses was that the
information in Risen’s book was not, in fact, national defense
information. Although Sterling expressed frustration with the
security measures previously imposed by the court, he did not
15
The court ordered that another witness, Human Asset No.
1, would be permitted to testify behind a screen.
16
The screen would shield the witnesses from public view;
Sterling, his counsel, and the jury would be able to see the
witnesses.
70
ask the court to alter its ruling permitting the CIA operatives
to use partial names or pseudonyms.
At the October 14 hearing, the court reversed course as to
both the screen and the witnesses’ names. The court agreed to
permit a screen between the trial participants and the public
seating section of the courtroom. 17 And although the witnesses
could use pseudonyms while testifying, the Government was
ordered to provide to defense counsel, Sterling, and the jury a
key with the witnesses’ true names. 18 The Government appealed
the portion of the order requiring it to provide a key with the
witnesses’ true names to Sterling and the jury.
Sterling contends we do not have jurisdiction to review the
order requiring disclosure of the witnesses’ true identities to
Sterling and the jury. The Government raises two bases for its
argument that the disclosure order is immediately appealable:
17
Sterling has not cross-appealed as to the order
permitting the screen.
18
The record reflects no legally significant change in
circumstances between the court’s initial order permitting the
name substitutions and its later order denying substitutions.
In the hearing on the Government’s motion for reconsideration,
the court stated that as long as the Government planned to
appeal the Giglio ruling, the court might as well rule on the
name issue, too, to give the Fourth Circuit a crack at it. The
Government implies that the court may have changed its ruling to
persuade the Government to narrow its witness list. While the
district court did state that the Government might not need all
of the witnesses on its list, and instructed the Government to
call the absolute minimum number of witnesses it needed, we
decline to ascribe to the district judge any improper motive.
71
18 U.S.C. § 3731, and CIPA section 7, 18 U.S.C. app. 3, § 7.
Section 3731, as recounted at Section II.A, does not confer
jurisdiction for an immediate appeal as to this issue because
the order is not one suppressing or excluding evidence. Thus,
we turn to CIPA.
A.
CIPA provides a framework for determining how to proceed
with discovery and admissibility of classified information in
criminal cases. See United States v. Moussaoui, 591 F.3d 253,
281-82 (4th Cir. 2010). It was designed to balance the
defendant’s interest in a fair trial and the government’s
interest in protecting national security information. United
States v. Passaro, 577 F.3d 207, 219 (4th Cir. 2009). When
classified information may come into play at trial, the
government may move for a hearing in the district court “to make
all determinations concerning the use, relevance, or
admissibility of classified information that would otherwise be
made during the trial or pretrial proceedings.” 18 U.S.C. app.
3, § 6(a). The district court’s order was, we conclude, an
order concerning the use of classified information encompassed
by CIPA section 6.
It is true, as Sterling contends, that this is not a run-
of-the-mill CIPA appeal. CIPA generally comes into play when
the defendant seeks to obtain, or plans to disclose, national
72
security information, and the government opposes disclosure.
United States v. Moussaoui, 333 F.3d 509, 514 (4th Cir. 2003).
In Moussaoui, we held that an order permitting a deposition of
an enemy combatant witness was not immediately appealable under
CIPA. We reasoned that CIPA was concerned with disclosure of
classified information at trial, rather than the defendant’s
pretrial discovery of classified information. Thus, we
concluded, CIPA was only applicable by analogy, and in that
instance CIPA § 7 did not authorize an interlocutory appeal.
Following Moussaoui, we considered a case in which the
government introduced classified information at trial, and
relied upon CIPA in protecting that information from disclosure.
United States v. Abu Ali, 528 F.3d 210, 255 (4th Cir. 2008).
There, the government used classified information to which
neither Abu Ali nor his counsel was privy. We held that:
If classified information is to be relied upon as
evidence of guilt, the district court may consider
steps to protect some or all of the information from
unnecessary public disclosure in the interest of
national security and in accordance with CIPA, which
specifically contemplates such methods as redactions
and substitutions so long as these alternatives do not
deprive the defendant of a fair trial.
Id. The procedural posture of this case is, of course,
different from Abu Ali; Abu Ali was an appeal following
conviction, not an interlocutory appeal. Nevertheless, it is
illustrative; evidence sought to be admitted at trial by the
73
government, like that proffered by the defense, is subject to
the protections afforded by CIPA.
The order at issue authorizes disclosure of classified
information at trial, unlike the order in Moussaoui, which
involved the defendant’s pretrial discovery request. Cf. United
States v. Moussaoui, 336 F.3d 279, 280 (4th Cir. 2003) (Wilkins,
C.J., concurring in the denial of en banc rehearing) (noting
that CIPA § 6 applies to the use of classified information at
trial or in pretrial proceedings, and not to pretrial discovery
of classified information). Given our recognition in Abu Ali
that CIPA applies to evidence proffered by the government for
use at trial, we have jurisdiction over this interlocutory
appeal pursuant to Section 7 of CIPA, which provides:
An interlocutory appeal by the United States taken
before or after the defendant has been placed in
jeopardy shall lie to a court of appeals from a
decision or order of a district court in a criminal
case authorizing disclosure of classified information,
imposing sanctions for nondisclosure of classified
information, or refusing a protective order sought by
the United States to prevent the disclosure of
classified information.
18 U.S.C. app. 3, § 7(a). Having determined that we have
jurisdiction to review the district court’s order, we turn to
the merits, reviewing for abuse of discretion. Abu Ali, 528
F.3d at 253-54 (applying abuse of discretion standard, but
striking a balance between the defendant’s Confrontation Clause
74
rights and the government’s need to protect classified
information).
B.
There can be no doubt that the identity of CIA operatives
is sensitive information. The identity of CIA operatives is,
and always has been, subject to rigorous protection. See, e.g.,
In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C.
Cir. 2006). To disclose the identities of CIA operatives, even
if not to every spectator in the courtroom, subjects the
operatives to targeting by hostile foreign intelligence services
and terrorist organizations, and creates a grave danger to the
operatives, their families, and the operations in which they are
engaged. Cf. United States v. Ramos-Cruz, 667 F.3d 487, 500
(4th Cir. 2012) (recognizing that defendant’s rights under the
Confrontation Clause to identifying information about witnesses
is not absolute; if the government shows an actual threat, the
district court has discretion to determine whether effective
cross-examination is possible if the witness’s identity is
concealed).
We find no abuse of discretion in the district court’s
decision to make available to Sterling and his counsel a key to
the witnesses’ true names. Sterling knows, or may know, some of
the witnesses at issue, and depriving him of the ability to
build his defense in this regard could impinge on his
75
Confrontation Clause rights. See generally Maryland v. Craig,
497 U.S. 836, 848-49 (1990). Moreover, and unlike the usual
cases where witnesses have been permitted to use pseudonyms, the
Government in this case has made no showing that Sterling or his
counsel pose an actual threat to the safety of these witnesses.
See Ramos-Cruz, 667 F.3d at 506; United States v. El-Mezain, 664
F.3d 467, 492 (5th Cir. 2011). Thus, we discern no potential
for harm from disclosure of their identities to Sterling and his
counsel. We cannot, however, take the same approach when it
comes to the jury.
Sterling contends that the security measures proposed by
the Government will serve to impermissibly heighten the jury’s
sensitivity to the classified nature of the information Sterling
is accused of disclosing, increasing the odds of his conviction.
The district court understandably sought to limit to the extent
possible the elements of secrecy in this case, and we, too, are
mindful of the risk of tainting the jury if unduly suggestive
security measures are used at trial. If a security measure is
inherently prejudicial, it may be employed “only where justified
by an essential state interest specific to each trial.”
Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986). However, we can
discern no real benefit that would inure from providing the jury
with the full, true names of the CIA operatives at issue. The
court sought to limit the risk of disclosure by proposing to
76
instruct the jurors not to write down the witnesses’ true names,
but nothing will prevent a juror from remembering the names—and,
for that matter, the other classified information presented at
trial. Unlike the information Sterling is charged with
disclosing to Risen, though, the true names of the CIA
operatives at issue will do nothing to enhance the jury’s
understanding of the facts and legal issues presented at trial.
And although we are mindful that the jurors are unlikely to
disseminate the names in contravention of the district court’s
instructions, it simply is not worth the risk to the lives of
these operatives (and their families and associates) to disclose
the operatives’ true names to anyone who does not have a genuine
need to know their identities.
Although Sterling may dispute at trial that the information
at issue was classified, or that he was the person who passed to
Risen the information in Chapter Nine, there is no escaping the
fact that Sterling has been charged with disclosing classified
information, and the jury will be well aware of that fact from
the very outset of the proceedings. The district court has made
clear that it will instruct the jury that Sterling’s guilt
cannot be inferred from the use of security measures in the
courtroom. Balancing Sterling’s concerns with the very real
danger to the CIA operatives if their identities are disclosed,
we conclude that a proper jury instruction will alleviate any
77
potential prejudice, and that the district court abused its
discretion in taking the more perilous approach of ordering that
the jury be given a key with the operatives’ true names. Thus,
we reverse this portion of the district court’s order. We
affirm, however, the portion of the order permitting Sterling
and his counsel to receive the key with the operatives’ true
names.
C.
For the foregoing reasons, we reverse the court’s exclusion
of two Government witnesses, and affirm in part and reverse in
part the court’s ruling pursuant to CIPA. We remand for further
proceedings consistent with this opinion.
78
TRAXLER, Chief Judge, concurring in part and dissenting in part
as to Issues II and III:
I concur in the majority’s decision as to Issue II, which
reverses the district court’s order striking two of the
government’s witnesses as a sanction for violating the discovery
order. With regard to Issue III, I concur in the reversal of
the district court’s order requiring disclosure of the
identities of the covert CIA agents and operatives (the “CIA
witnesses”) to the jury. I respectfully dissent, however, from
the majority’s decision to affirm the district court’s order
requiring disclosure of this information to Sterling.
Prior to trial, the government filed a motion under Section
6 of the Classified Information Procedures Act (“CIPA”), see 18
U.S.C. App. III, requesting permission to substitute pseudonyms
for the true names of the CIA witnesses. The government also
asked that a screen be used to shield the witnesses from the
public’s view, but not the view of Sterling or the jury. The
motions were accompanied by CIA and FBI declarations explaining
in detail that public disclosure would jeopardize the personal
safety of the witnesses, their families, and associates, and
would jeopardize the effectiveness of the CIA witnesses as
agents and operatives. Additionally, foreign intelligence and
terrorist organizations have a significant interest in
identifying CIA agents and operatives, and use information
79
gleaned from trials to expose their activities, sources, and
methods.
The district ruled that the CIA witnesses would be allowed
to testify using pseudonyms and from behind a screen, but that
their true identities would have to be disclosed to Sterling and
the jury. The majority reverses the district court’s ruling as
to the jury, but affirms as to Sterling. Because disclosure of
the identities of the CIA witnesses endangers the personal
safety of the witnesses and others associated with them, and
jeopardizes the witnesses’ effectiveness as agents and
operatives, and there has been no demonstration that Sterling
cannot effectively cross-examine the witnesses without this
information, I would reverse the disclosure ruling as to both
the jury and Sterling.
A.
As a general rule, “the Confrontation Clause guarantees a
defendant the right to question an adverse witness about
identifying information, including his full name and address.”
United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012)
(citing Smith v. Illinois, 390 U.S. 129, 131 (1968)). However,
“th[e] right is not absolute,” and “a trial court may limit
cross-examination if the information sought could endanger the
witness.” Id. (internal quotation marks omitted). “When the
government seeks to withhold a witness’s true name, address, or
80
place of employment, it bears the burden of demonstrating that
the threat to the witness is actual and not a result of
conjecture.” Id. (internal quotation marks and alteration
omitted). Once the government meets this burden, the court must
“review relevant information and determine whether disclosure of
the witness’s identifying information is necessary to allow
effective cross-examination.” Id.
B.
There is “no governmental interest . . . more compelling
than the security of the Nation,” and “[m]easures to protect the
secrecy of our Government’s foreign intelligence operations
plainly serve these interests.” Haig v. Agee, 453 U.S. 280, 307
(1981); see also Snepp v. United States, 444 U.S. 507, 509 n.3
(1980). “[T]he Government must tender as absolute an assurance
of confidentiality as it possibly can” to intelligence officers
and sources, C.I.A. v. Sims, 471 U.S. 159, 175 (1985), and
courts should exercise particular caution before “order[ing]
[their] identit[ies] revealed,” id. at 176. Protecting the
classified identities of covert CIA agents and operatives is of
particular concern because disclosure places not only our
national security at risk, but also the personal safety of those
who have committed their lives to the service of our country.
Indeed, Congress has criminalized such disclosure, see 50 U.S.C.
§ 421, given the “behavior’s ‘intolerable’ consequences: ‘[t]he
81
loss of vital human intelligence which our policymakers need,
the great cost to the American taxpayer of replacing
intelligence resources lost due to such disclosures, and the
greatly increased risk of harm which continuing disclosures
force intelligence officers and sources to endure.’” In re
Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1179 (D.C.
Cir. 2006) (Tatel, J., concurring) (quoting S.Rep. No. 97-201,
at 10-11 (1981); see also 50 U.S.C. § 403g (noting that “the
interests of the security of the foreign intelligence activities
of the United States” require that the names of CIA personnel be
protected).
The actual threat to CIA witnesses has been well documented
in this case, and it appears that we all agree on this point.
As the majority notes: “To disclose the identities of CIA
operatives, even if not to every spectator in the courtroom,
subjects the operatives to targeting by hostile foreign
intelligence services and terrorist organizations, and creates a
grave danger to the operatives, their families, and the
operations in which they are engaged.” Majority op. at 75.
Accordingly, we unanimously conclude that the district court
abused its discretion in requiring disclosure of the identifying
information to the jury.
I depart from the majority’s view, however, that disclosure
to Sterling is nevertheless required because there has been no
82
showing that Sterling poses an actual threat to the safety of
the witnesses. “[T]he appropriateness of using pseudonyms to
protect witnesses does not depend on whether the threat to the
witness comes directly from a defendant or from another source.”
Ramos-Cruz, 667 F.3d at 501 (internal quotation marks omitted).
But, in any event, the grand jury in this case has found
probable cause to believe that Sterling has already revealed
classified information about a covert operation and a covert CIA
asset for publication in the public domain. In my opinion, no
more needs to be shown to demonstrate that disclosure of the
true identities of the CIA witnesses to Sterling poses an actual
and specific risk, sufficient to require serious inquiry into
the necessity of the disclosure for purposes of confrontation.
Because the government seeks to protect the confidentiality
of the CIA witnesses’ identities to minimize the actual threat
disclosure poses to them, Sterling was required to demonstrate
that disclosure is necessary to conduct an effective cross-
examination. See id. at 500; see also United States v. El-
Mezain, 664 F.3d 467, 492, 493 (5th Cir. 2011) (holding that the
defendants’ Confrontation Clause rights were not violated by
allowing Israeli security officers to testify using pseudonyms,
due to the “serious and clear need to protect the true
identities of [the witnesses] because of concerns for their
safety” and the defendants’ adequate opportunity “to conduct
83
effective cross-examination”); United States v. Lonetree, 35
M.J. 396, 410 (C.M.A. 1992) (rejecting argument that
Confrontation Clause was violated by allowing a United States
intelligence agent to testify without disclosing his true name
because it endangered the agent and “was not essential to a fair
resolution of the cause”).
I have much respect for the district court, which has dealt
with difficult questions arising from the classified nature of
this case. On this particular point, however, I am constrained
to find an abuse of discretion. Given the dangers involved, the
district court should have granted the government’s motion to
withhold disclosure of the witnesses’ identifying information
because there had been no showing that the disclosure was
“necessary to allow effective cross-examination.” Ramos-Cruz,
667 F.3d at 500. Instead, the district court merely ruled that
the identities of the CIA witnesses should be revealed because
“the defendant may know things about [a] witness,” and could
“turn to counsel and say: Hey, ask him about such-and-such on
cross-examination.” J.C.A. at 487. The majority similarly
concludes only that failure to disclose the identifying
information might “depriv[e] [Sterling] of the ability to build
his defense” and, “in this regard could impinge on his
Confrontation Clause rights.” Majority op. at 75-76. In my
84
opinion, this is too speculative a basis upon which to require
disclosure of the identities of the CIA witnesses to Sterling.
Sterling has been provided with discovery on all of the
witnesses by their pseudonyms, including prior statements,
interview reports, cables, and other documents. Sterling
therefore appears to already know the factual connection that
each witness has to his case. See Ramos-Cruz, 667 F.3d at 501
(noting that “because the government disclosed to the defense
details of the[] witnesses before the trial, the defendants were
able to effectively cross-examine the witnesses without
threatening their safety” (internal quotations marks omitted)).
Because disclosure of the identities of the covert CIA witnesses
endangers their safety, and Sterling has not made the required
demonstration that he needs this information in order to conduct
a meaningful cross-examination of the witnesses, I would reverse
the district court’s order requiring disclosure of the
identities of the CIA witnesses to Sterling as well.
85
GREGORY, Circuit Judge, dissenting as to Issue I:
Today we consider the importance of a free press in
ensuring the informed public debate critical to citizens’
oversight of their democratically elected representatives.
Undoubtedly, the revelation of some government secrets is too
damaging to our country’s national security to warrant
protection by evidentiary privilege. Yet the trial by press of
secret government actions can expose misguided policies, poor
planning, and worse. More importantly, a free and vigorous
press is an indispensable part of a system of democratic
government. Our country’s Founders established the First
Amendment’s guarantee of a free press as a recognition that a
government unaccountable to public discourse renders that
essential element of democracy – the vote – meaningless. The
majority reads narrowly the law governing the protection of a
reporter from revealing his sources, a decision that is, in my
view, contrary to the will and wisdom of our Founders.
The district court ruled that under Branzburg v. Hayes, 408
U.S. 665 (1972), and subsequent precedent from this Circuit, the
Government could not compel Risen to reveal his source for
chapter nine of his book, State of War. We review de novo the
district court’s legal determination that the reporter’s
privilege exists in the criminal context, and we examine the
district court’s application of that privilege to the instant
86
facts under a deferential abuse-of-discretion standard. 1 Church
of Scientology Int’l v. Daniels, 992 F.2d 1329, 1334 (4th Cir.
1993); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th
Cir. 1986).
A.
The freedom of the press is one of our Constitution’s most
important and salutary contributions to human history. See U.S.
Const. amend. I (“Congress shall make no law . . . abridging the
freedom of speech, or of the press[.]”). Reporters are “viewed
‘as surrogates for the public,’” United States v. Criden, 633
F.2d 346, 355 (3d Cir. 1980) (quoting Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 573 (1980)), who act in the public
interest by uncovering wrongdoing by business and government
alike. Democracy without information about the activities of
the government is hardly a democracy. The press provides “a
constitutionally chosen means for keeping officials elected by
the people responsible to all the people whom they were selected
to serve.” Mills v. Alabama, 384 U.S. 214, 219 (1966). A
citizen’s right to vote, our most basic democratic principle, is
rendered meaningless if the ruling government is not subjected
to a free press’s “organized, expert scrutiny of government.”
1
As the majority notes, we have jurisdiction pursuant to 18
U.S.C. § 3731.
87
Justice Potter Stewart, Or of the Press, 26 Hastings L.J. 631,
634 (1975).
The protection of confidential sources is “necessary to
ensure a free and vital press, without which an open and
democratic society would be impossible to maintain.” Ashcraft
v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000). If
reporters are compelled to divulge their confidential sources,
“the free flow of newsworthy information would be restrained and
the public’s understanding of important issues and events would
be hampered in ways inconsistent with a healthy republic.” Id.;
see also Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981)
(“Compelling a reporter to disclose the identity of a source may
significantly interfere with this news gathering ability” and
threaten “a vital source of information,” leaving citizens “far
less able to make informed political, social, and economic
choices.”).
Yet if a free press is a necessary condition of a vibrant
democracy, it nevertheless has its limits. “[T]he reporter’s
privilege . . . is not absolute and will be overcome whenever
society’s need for the confidential information in question
outweighs the intrusion on the reporter’s First Amendment
interests.” Ashcraft, 218 F.3d at 287. And we must be mindful
of the “fundamental maxim that the public . . . has a right to
88
every man’s evidence.” Jaffee v. Redmond, 518 U.S. 1, 9 (1996)
(quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).
The public, of course, does not have a right to see all
classified information held by our government. But public
debate on American military and intelligence methods is a
critical element of public oversight of our government.
Protecting the reporter’s privilege ensures the informed public
discussion of important moral, legal, and strategic issues.
Public debate helps our government act in accordance with our
Constitution and our values. Given the unprecedented volume of
information available in the digital age – including information
considered classified – it is important for journalists to have
the ability to elicit and convey to the public an informed
narrative filled with detail and context. Such reporting is
critical to the way our citizens obtain information about what
is being done in their name by the government.
A reporter’s need for keeping sources confidential is not
hypothetical. The record on appeal contains affidavits
proffered by Risen detailing the integral role of confidential
sources in the newsgathering process. Scott Armstrong,
executive director of the Information Trust and former
Washington Post reporter, points to three ways in which
investigative journalism uses confidential sources: “developing
factual accounts and documentation unknown to the public,”
89
“tak[ing] a mix of known facts and new information and
produc[ing] an interpretation previously unavailable to the
public,” and “publiciz[ing] information developed in government
investigations that has not been known to the public and might
well be suppressed.” Joint App’x (J.A.) 531. “It would be
rare,” Armstrong asserts, “for there not to be multiple sources
– including confidential sources – for news stories on highly
sensitive topics.” Id. In turn, “[m]any sources require such
guarantees of confidentiality before any extensive exchange of
information is permitted.” J.A. 350. Such guarantees of
confidentiality enable sources to discuss “sensitive matters
such as major policy debates, personnel matters, investigations
of improprieties, and financial and budget matters.” Id. Even
in ordinary daily reporting, confidential sources are critical.
“[O]fficial government pronouncements must be verified before
they are published,” and this is frequently done through
discussion with officials not authorized to speak on the subject
but who rely on assurances of confidentiality. J.A. 352. These
discussions can often lead to “unique and relevant, contextual
comments” made by the confidential source, comments that deepen
the story. Id.
The affidavits also recount numerous instances in which the
confidentiality promised to sources was integral to a reporter’s
development of major stories critical to informing the public of
90
the government’s actions. See, e.g., J.A. 378-80 (affidavit of
Dana Priest) (noting, among many stories, her reporting on the
existence and treatment of military prisoners at Guantanamo Bay,
Cuba; the abuse of prisoners in Abu Ghraib, Iraq; the existence
of secret CIA prisons in Eastern Europe; and the “systematic
lack of adequate care” for veterans at Walter Reed Army Medical
Center relied upon confidential sources). Carl Bernstein, who
has worked for the Washington Post and ABC News, writes that
without his confidential source known as “Deep Throat,” the
investigation into the Watergate scandal – the break-in of the
Democratic National Committee’s offices in the Watergate Hotel
and Office Building that led to the resignation of President
Nixon – would never have been possible. J.A. 361-62. “Total
and absolute confidentiality” was essential for Bernstein to
cultivate the source. J.A. 362.
For all that the record establishes, common sense tells us
the value of the reporter’s privilege to journalism is one of
the highest order. See Riley v. City of Chester, 612 F.2d 708,
714 (3d Cir. 1979) (“The interrelationship between
newsgathering, news dissemination and the need for a journalist
to protect his or her source is too apparent to require
belaboring.”). Indeed, reporters “depend[] upon an atmosphere
of confidentiality and trust” to carry out their mission, a
91
mission critical to an informed and functioning democracy.
Jaffee, 518 U.S. at 10.
B.
Any consideration of the reporter’s privilege must start
with Branzburg, where the Supreme Court upheld, by a vote of
five to four, the compulsion of confidential source information
from reporters. Branzburg v. Hayes, 408 U.S. 665 (1972). The
majority opinion highlighted the “longstanding principle that
‘the public . . . has a right to every man’s evidence,’ except
for those persons protected by a constitutional, common law, or
statutory privilege.” Id. at 688 (citations omitted). The
opinion also stated that “news gathering is not without its
First Amendment protections,” id. at 707, but the Court did not
specify exactly what those protections might encompass, although
it indicated that “[o]fficial harassment of the press” and bad
faith investigations might fall within the parameters of the
First Amendment’s protection of reporters. Id. at 707-08.
Further complicating matters is Justice Powell’s “enigmatic
concurring opinion,” id. at 725 (Stewart, J., dissenting), which
is in part at odds with the majority opinion he joined. In the
concurrence, Justice Powell emphasized “the limited nature of
the Court’s holding,” and endorsed a balancing test, according
to which “if the newsman is called upon to give information
bearing only a remote and tenuous relationship to the subject of
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the investigation,” then courts should consider the
applicability of the reporter’s privilege on a “case-by-case
basis” by “the striking of a proper balance between freedom of
the press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct.” Id. at 709-10
(Powell, J., concurring).
The full import of Justice Powell’s concurrence continues
to be debated. Some analogize the Branzburg majority opinion to
a plurality opinion, and therefore assert Justice Powell’s
concurrence as the narrowest opinion is controlling. See In re
Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1148 (D.C.
Cir. 2006) (describing appellants’ argument that in a five-to-
four decision, “the opinion of the least encompassing justice []
determines the precedent set by the decision”); cf. McKoy v.
North Carolina, 494 U.S. 433, 462 n.3 (1990) (arguing that a
separate opinion “cannot add to what the majority opinion holds,
binding the other four Justices to what they have not said; but
it can assuredly narrow what the majority opinion holds, by
explaining the more limited interpretation adopted by a
necessary member of that majority”) (Scalia, J., dissenting).
Others, like my good friends in the majority, treat Justice
Powell’s concurrence as ancillary, see ante 22-24, and simply
rejoin that “the meaning of a majority opinion is to be found
93
within the opinion itself.” McKoy, 494 U.S. at 448 n.3
(Blackmun, J., concurring).
Given this confusion, appellate courts have subsequently
hewed closer to Justice Powell’s concurrence – and Justice
Stewart’s dissent – than to the majority opinion, and a number
of courts have since recognized a qualified reporter’s
privilege, often utilizing a three-part balancing test. See,
e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.
1986) (applying the reporter’s privilege in the criminal
context); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.
1983) (recognizing the qualified privilege in criminal cases);
Zerilli v. Smith, 656 F.2d 705, 711-13 (D.C. Cir. 1981)
(applying the reporter’s privilege in a civil case). Indeed, a
mere five years after Branzburg, a federal court of appeals
confidently asserted that the existence of a qualified
reporter’s privilege was “no longer in doubt.” Silkwood v.
Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). In short,
Justice Powell’s concurrence and the subsequent appellate
history have made the lessons of Branzburg about as clear as
mud.
The Fourth Circuit, like our sister circuits, has applied
Justice Powell’s balancing test in analyzing whether to apply a
reporter’s privilege to quash subpoenas seeking confidential
source information from reporters. We first explicitly adopted
94
Justice Powell’s balancing test in an en banc opinion in United
States v. Steelhammer, 539 F.2d 373, 376 (4th Cir. 1976)
(Winter, J., dissenting), adopted by the court en banc, 561 F.2d
539, 540 (4th Cir. 1977). Then in LaRouche, we applied the
reporter’s privilege doctrine to a civil case, again citing
Justice Powell’s concurrence in Branzburg for authority. 780
F.2d at 1139. Following the lead of the Fifth Circuit, we
applied a three-part test to help us balance the interests at
stake in determining whether the reporter’s privilege should be
applied; that is, we considered “(1) whether the information is
relevant, (2) whether the information can be obtained by
alternative means, and (3) whether there is a compelling
interest in the information.” Id. (citing Miller v.
Transamerican Press, Inc., 621 F.2d 721, modified, 628 F.2d 932
(5th Cir. 1980)). We went on to find that there was no abuse of
discretion when the district court denied LaRouche’s motion to
compel discovery of a reporter’s sources because LaRouche “had
not exhausted reasonable alternative means of obtaining [the]
same information.” LaRouche, 780 F.2d at 1139.
In a subsequent case in the criminal context, In re Shain,
four reporters in South Carolina asserted the reporter’s
privilege to protect information gleaned from interviews with a
state legislator. 978 F.2d 850, 851-52 (4th Cir. 1992). But
applying Justice Powell’s principles, we rejected the reporters’
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claim on the ground that none of the reporters asserted that the
interviews were confidential, that there were agreements to
refuse revealing the identity of the interviewee, or that the
government sought to harass the reporters. Id. at 853. Thus,
although the reporter’s privilege was not recognized in “the
circumstances of this case,” see id. at 854, it is clear to me
that we have acknowledged that a reporter’s privilege attaches
in criminal proceedings given the right circumstances.
The most recent federal appellate court decision to address
the reporter’s privilege at length is In re Grand Jury Subpoena,
Judith Miller, 438 F.3d 1141, 1145-49 (D.C. Cir. 2006). In that
case, the court rejected the reporter’s privilege claim asserted
by Judith Miller of The New York Times, stating that the
Branzburg decision was dispositive. The majority there – as in
this case – reasoned that the Supreme Court had not revisited
the question of a reporter’s privilege under the First Amendment
after Branzburg, and that Justice Powell’s concurrence did not
detract from the precedential weight of the majority’s
conclusion that there was no First Amendment reporter’s
privilege, at least when there was no suggestion that the
reporter was being pressed for information as a means of
harassment or intimidation. Id. at 1145-49. In a thoughtful
concurrence, though, Judge Tatel pointed to the ambiguities of
the Branzburg decision, and noted that nearly every state and
96
the District of Columbia has recognized a reporter’s privilege.
Nevertheless, Judge Tatel concluded that “if Branzburg is to be
limited or distinguished in the circumstances of this case, we
must leave that task to the Supreme Court.” Id. at 1166 (Tatel,
J., concurring). And although he felt constrained to deny
applying a First Amendment privilege, Judge Tatel would have
held that Rule 501 of the Federal Rules of Evidence provides for
a reporter’s privilege (though on the facts of that case, the
privilege would have given way due to the extraordinary national
security issue involved). See id. at 1177-78 (Tatel, J.,
concurring).
C.
On this background, I turn to the question now before the
court: Are there circumstances in which a reporter may refuse
to testify as to the identity of one of his confidential
sources, when the government seeks this information as part of a
criminal investigation, and there is no evidence of
prosecutorial bad faith or harassment? Some appellate courts
have used a three-part test, essentially identical to the test
we announced in LaRouche in the civil context, to help determine
whether to apply the reporter’s privilege in criminal cases.
See, e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th
Cir. 1986); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.
1983). They require the moving party, i.e. the government, “to
97
make a clear and specific showing” that the subpoenaed
information is “highly material and relevant, necessary or
critical to the maintenance of the claim, and not obtainable
from other available sources.” Burke, 700 F.2d at 77 (internal
citations and quotation marks omitted). Cf. 28 C.F.R. § 50.10
(policy in regards to the issuance of subpoenas to members of
the news media).
I, too, would recognize a qualified reporter’s privilege in
the criminal context, and evaluate the privilege using the
three-part test enunciated in LaRouche as an “aid” to help
“balance the interests involved.” 780 F.2d at 1139. I would
add a caveat to this general rule, however; in cases involving
questions of national security, if the three-part LaRouche test
is satisfied in favor of the reporter’s privilege, I would
require consideration of two additional factors: the harm
caused by the public dissemination of the information, and the
newsworthiness of the information conveyed. 2 Cf. id. at 1139
2
By “newsworthiness,” I mean the value to the public of the
leaked information concerning the issues of the day.
Necessarily included in the concept of “newsworthiness” is the
recognition that because this privilege is qualified, it will
likely deter some potential sources from disclosing their
information. Because the newsworthiness of the information
cannot be adjudged by a court at the time of disclosure, a
source takes a chance that a court will not protect the source.
While this is somewhat speculative – not all reporters with
confidential sources are routinely subpoenaed – to the extent
this is a problem, the potential of this chilling effect
98
(establishing a balancing test for the reporter’s privilege in
the civil context); In re Grand Jury Subpoena, Judith Miller,
438 F.3d at 1175 (Tatel, J., concurring) (stating that courts
must “weigh the public interest in compelling disclosure,
measured by the harm the leak caused, against the public
interest in newsgathering, measured by the leaked information’s
value”). Thus, even when the LaRouche test favors recognizing
the reporter’s privilege, in matters of national security this
privilege can still be overridden by pressing government
interests. It is important to note that such a test does not
depart from established precedent, to the contrary, it adheres
to Justice Powell’s concurrence in Branzburg that “[t]he
asserted claim to privilege should be judged on its facts by the
striking of a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony with
respect to criminal conduct.” 408 U.S. at 710 (Powell, J.,
concurring).
D.
Whatever the limits of who may claim reporter’s privilege,
it is clear that Risen – a full-time reporter for a national
counsels a broad definition of “newsworthiness.” On the other
hand, I would reject an absolute privilege because some
discussions should be chilled – precisely those that seriously
endanger individuals or our nation’s security without an
outweighing, compelling civic benefit.
99
news publication, The New York Times – falls into the category
of people who should be eligible to invoke the privilege. I
also note that Risen has been offered immunity by the
Government, so there is no Fifth Amendment issue with regard to
compulsion of his testimony. The threshold inquiries having
been satisfied, I turn to the question of whether the reporter’s
privilege should apply in this case, applying the test I
announced herein. 3
1.
The inquiry when applying the first LaRouche factor is the
relevance of Risen’s testimony to the Government’s case. Unlike
the Branzburg case, where the reporters had knowledge of
suspected crimes that could be seriously damaging to individuals
and the government, the Government here seeks a conviction for
the very act of disclosure. The Government claims that Risen’s
testimony is valuable to its case against Sterling for revealing
national defense secrets for two reasons: establishing venue
and supporting the Government’s case on the merits. With
respect to the former, the Government bears the burden of
proving by a preponderance of the evidence that “the essential
conduct elements” of the charged offenses occurred within the
3
I emphasize that these factual assertions have yet to be
proven, and my analysis would not, even if it were the majority
opinion, constrain the jury’s resolution of disputed factual
issues at trial.
100
Eastern District of Virginia. United States v. Ebersole, 411
F.3d 517, 524 (4th Cir. 2005) (internal quotation marks
omitted).
The record suggests the Government can show that Risen made
phone calls from the Eastern District of Virginia to Sterling’s
Missouri residence. Furthermore, emails exchanged with Sterling
used a server located in the Eastern District of Virginia. Of
course, in order to prove venue, the Government must show that
classified information was disclosed during these
communications. It appears venue can be established without
requiring Risen to disclose his confidential sources, limiting
the relevance of his testimony. And as addressed below with
regard to the value of Risen’s testimony to the Government’s
case-in-chief, the circumstantial evidence that classified
information was discussed appears to be strong, 4 indicating that
Risen’s testimony regarding his confidential sources is by no
means pertinent to the Government proving Sterling guilty.
2.
Turning to the second LaRouche factor, whether the
information sought — the identity of the source of the leak — is
4
In determining the relevance of the evidence sought to be
protected by the reporter’s privilege and whether the Government
may prove its allegations by other means, we necessarily make a
preliminary inquiry into the merits of the case, although such
an inquiry is not equivalent to a judgment as a matter of law.
101
available by other means, the Government claims Risen’s
testimony is a critical part of its case against Sterling
largely because Risen is the only eyewitness to the crime; the
other evidence is circumstantial. 5 The Government’s
demonstration of its good-faith effort to obtain similar
evidence through other means is a necessary part of its showing.
See United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.
1981) (requiring a demonstration that the party seeking to
overcome the reporter’s privilege “demonstrate that he has made
an effort to obtain the information from other sources”)
(quoting Criden, 633 F.2d at 358-59). But it is precisely
because of the Government’s diligence that it doth protest too
much. An analysis of the circumstantial evidence shows the
Government’s case is not as weak as it or the majority claims,
limiting the need for Risen’s testimony.
5
As the district court stated, the privilege should extend
to information that would lead the government to the identity of
the confidential source. See United States v. Sterling, 818 F.
Supp. 2d 945, 955 (E.D. Va. 2011) (“Courts have long held that
the reporter’s privilege is not narrowly limited to protecting
the reporter from disclosing the names of confidential sources,
but also extends to information that could lead to the discovery
of a source’s identity.”). That the coverage of the privilege
should extend so far is commonsensical; otherwise, the questions
could be tailored to swallow the privilege. Cf. New York Times
Co. v. Gonzales, 459 F.3d 160, 168 (2d Cir. 2006) (recognizing
that the subpoena of a reporter’s phone records “is a first step
of an inquiry into the identity” of the source and that a
balancing test should be applied to determine whether the
reporter’s privilege covers the records).
102
First, the Government can demonstrate that Sterling showed
Risen’s book to Sterling’s then-girlfriend in a bookstore and,
without so much as opening it, Sterling told her that chapter
nine discussed his work at the CIA. 6 The book itself reveals
details about Classified Program No. 1 that tend to link
Sterling to chapter nine. For example, sections of the chapter
are told from the point of view of the case officer responsible
for Human Asset No. 1 – which was Sterling’s responsibility –
and the Government asserts that the chapter describes two
classified meetings at which Sterling was the only common
attendee.
Second, the Government has the aforementioned phone records
demonstrating that Sterling and Risen called each other seven
times between February 27 and March 31, 2003. The Government
also has evidence that Sterling attempted to delete emails
referencing meetings and shared information between Sterling and
Risen, and parts of the emails were indeed obliterated. In one
email that was not fully deleted, Risen asks Sterling, “Can we
6
The Government suggests that the bookstore witness is now
(or was for a time) Sterling’s wife, and argues that her
testimony might not be admitted at trial because she might
assert a testimonial privilege. See Trammel v. United States,
445 U.S. 40, 53 (1980) (only the witness-spouse can assert the
spousal privilege). Whether this testimony is subject to
privilege is a question for the district court in the first
instance, and I seek neither to answer this question nor to
remove from the district court’s purview the ability to decide
whether the testimony could properly be admitted.
103
get together in early January?” J.A. 40. In another, Risen
tells Sterling “I want to call you today[.] I’m trying to write
the story . . . . I need your telephone number again.” J.A.
40. Risen sent another email to Sterling, this time stating
“I’m sorry if I failed you so far but I really enjoy talking to
you and would like to continue,” J.A. 41, an apparent reference
to The New York Times’s refusal to publish Risen’s story on
Classified Program No. 1.
Third, the prosecution expects to elicit at trial the
testimony of a former United States intelligence official.
Risen allegedly told this official, who occasionally discussed
Risen’s reporting with him, that Sterling was involved in
recruiting a source for “an important operation” that “targeted
[] the Iranian nuclear program,” and that Sterling was
frustrated by the perceived lack of recognition he received
within the CIA for his efforts. Joint Classified App’x (J.C.A.)
622, 624-25. This official, the district court wrote, “told the
grand jury that Risen had told him that Sterling was his source
for information about the Iranian nuclear weapons operation.”
Finally, the Government can also link Risen and Sterling in
the reporting of classified information on a prior occasion:
Risen’s March 2002 New York Times article entitled “Fired by the
C.I.A., He Says Agency Practiced Bias” noted that Sterling
provided Risen with one of Sterling’s classified performance
104
evaluations. In short, the Government has made “[a]ll
reasonable attempts . . . to obtain information from alternative
sources” as recommended by the Department of Justice’s internal
guidelines on subpoenas for testimony by news media, see 28
C.F.R. § 50.10. The Government’s efforts have yielded multiple
evidentiary avenues that, when presented together, may be used
to establish what the Government sought to establish solely with
testimony from Risen—that Sterling leaked classified
information, rendering Risen’s testimony regarding his
confidential sources superfluous.
3.
The third LaRouche factor is whether the Government has a
compelling interest in the information it seeks from Risen.
Suffice it to say, the prosecution’s body of evidence without
Risen’s testimony is strong. 7 The frequency of the phone calls
between Risen and Sterling, the forensically retrieved emails,
the stories published in The New York Times, the testimony of a
former United States intelligence official, and the bookstore
eyewitness provide extensive circumstantial evidence of the
crime and the court’s venue. While Sterling may argue that
7
There may yet be further motions in limine challenging
some of the evidence that the Government may wish to present at
trial. I do not suggest a view one way or the other on the
merits of any potential challenges; my analysis is limited to
Risen’s claim of reporter’s privilege.
105
other staff members who had access to national security
information could have been the source of the leak, the
Government, as it acknowledges, may simply call to the stand
those staff members to ask whether they were Risen’s source.
While the prosecution would undoubtedly be better off with
Risen’s testimony – none of the remaining pieces of evidence is
a smoking gun – the balancing test cannot mean that the
privilege yields simply because “no circumstantial evidence, or
combination thereof, is as probative as Risen’s testimony or as
certain to foreclose the possibility of reasonable doubt.” 8
Brief for the United States at 14. The specificity of the
information contained in chapter nine of Risen’s book, coupled
with the limited universe of individuals who had access to the
information, the circumstantial evidence, and proof by negative
implication, compose a reasonably strong case for the
Government. As we have stated before, “circumstantial evidence
is no less probative than direct evidence.” Stamper v. Muncie,
944 F.2d 170, 174 (4th Cir. 1991). I would therefore conclude
8
My good colleagues observe that circumstantial evidence is
not always as effective as direct evidence. (Opinion of
Traxler, C.J., at 49). I do not disagree. Rather, I observe
that in this case, the circumstantial evidence proffered by the
Government appears strong enough for the jury to draw a
conclusion regarding the identity of Risen’s source. I do not
dispute that direct evidence would be more effective than
circumstantial evidence to establish the identity of the source,
but other factors are at play.
106
that the Government has failed to demonstrate a sufficiently
compelling need for Risen’s testimony.
4.
Satisfied that the LaRouche factors weigh in favor of
Risen’s privilege from testifying as to his confidential
sources, I turn next to newsworthiness and harm, the two
additional factors I suggest should apply in a case involving
national security information. On the present record, the
newsworthiness of the leaked information appears to be
substantial. The information contained in chapter nine of State
of War covers the United States intelligence community’s efforts
concerning the development of the Iranian nuclear program. The
chapter questions the competence of the CIA’s management of
Classified Program No. 1. Chapter nine discusses a plan to have
a former Russian scientist give Iranian officials incorrect
nuclear weapon design specifications in an attempt to determine
the status of the Iranian nuclear weapons program, and to stall
or thwart the progress of that program, perhaps for years. The
blueprints were so deficient, the chapter opines, that the
Russian scientist spotted a flaw almost immediately. Although
the scientist explained this flaw to the CIA, Risen writes, the
CIA proceeded with the plot. In a letter accompanying the
blueprints, the Russian scientist disclosed to the Iranians the
flaw he spotted in the plans. Because the Iranians had received
107
scientific help from Russian and Chinese scientists, the chapter
continues, and because Iran already had black market nuclear
blueprints, Iranian scientists could likely differentiate the
good from the flawed in the American blueprints. In other
words, Risen asserts, Classified Operation No. 1 may have helped
Iran advance its nuclear program. The chapter also describes
the inadvertent disclosure to an Iranian double-agent of the
identities of every spy the CIA had within Iran – information
that was then turned over to Iranian security officials, who in
turn arrested a number of those agents. Finally, the chapter
recounts the CIA’s inability to obtain more than “fragmentary
information about Iran’s nuclear program.” J.S.A. 208.
This information is not extraneous. Quite the opposite, it
portends to inform the reader of a blundered American
intelligence mission in Iran. Since the United States’ invasion
of Iraq in 2003, our nation’s focus has shifted to the nuclear
capabilities of Iran, specifically whether Iran is attempting to
build a nuclear bomb and how soon it can achieve the technical
capabilities to do so. State of War was released in 2006 –
three years after the Iraq invasion. The Iraq invasion was
undertaken in part based on concerns that Iraq had developed
weapons of mass destruction, possibly including nuclear
weaponry. See J.S.A. 182. The apparent lack of weapons of mass
destruction in Iraq, it has been argued, highlights a
108
significant failure of United States intelligence. See J.A.
381. Risen himself contributed to our understanding of this
alleged failure. See James Risen, “C.I.A. Held Back Iraqi Arms
Data, U.S. Officials Say,” The New York Times, July 6, 2001, at
A1; J.S.A. 218-232 (chapter nine of State of War).
In a similar vein, Risen’s investigation into the methods
and capabilities of the United States foreign intelligence
community with respect to the Iranian nuclear program is surely
news of the highest import, particularly given the apparent
contretemps made in the National Intelligence Estimate of 2007.
See National Intelligence Council, National Intelligence
Estimate, Iran: Nuclear Intentions and Capabilities (Nov.
2007), http://www.odni.gov/press_releases/20071203_release.pdf
(asserting with “high confidence” that Iran in 2003 halted its
nuclear weapons program, despite 2005 intelligence estimate
noting that Iran is “determined to develop nuclear weapons”).
Significant public speculation about the possibility of a
conflict with Iran has repeatedly surfaced in recent years. See
Seymour M. Hersh, “Iran and the Bomb,” The New Yorker, June 6,
2011, http://www.newyorker.com/reporting/2011/06/06/110606fa.fac
ts.hersh (“There is a large body of evidence . . . including
some of America’s most highly classified intelligence
assessments, suggesting that the United States could be in
danger of repeating a mistake similar to the one made with
109
Saddam Hussein’s Iraq eight years ago – allowing anxieties about
the policies of a tyrannical regime to distort our estimations
of the state’s military capabilities and intentions.”). Risen’s
reporting on Iran’s nuclear capabilities is also particularly
relevant given the criticism of the national press for its
perceived failure to scrutinize United States intelligence
regarding Iraq’s weapons capabilities. See James Risen, “C.I.A.
Held Back Iraqi Arms Data, U.S. Officials Say,” N.Y. Times, July
6, 2004, at A1. Indeed, it is hard to imagine many subjects
more deserving of public scrutiny and debate. 9
As a final step in the First Amendment inquiry, I would
require the district court to balance the newsworthiness of the
9
The district court declined to consider newsworthiness as
a factor in its ruling on reporter’s privilege because no court
had identified newsworthiness as a factor in the balancing test.
The district court stated that considering newsworthiness would
cause the court to “serve as editor-in-chief, unilaterally
determining whether reporting is sufficiently accurate or
newsworthy as to be deserving of First Amendment protection.”
United States v. Sterling, 818 F. Supp. 2d 945, 954 (E.D. Va.
2011). In the absence of precedential case law identifying this
factor, it is understandable that the district court declined to
consider newsworthiness. But I do not doubt the district
court’s ability to determine the value to the public of
particular news stories. Courts already conduct this analysis
in other First Amendment contexts; for example, when assessing
restrictions on government employee speech. See, e.g., City of
San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam) (requiring
courts to evaluate the “legitimate news interest,” meaning the
“value and concern to the public at the time of publication”).
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information against the harm caused by the leak. 10 The present
record is not well developed on this point. The district court
understandably declined to conduct fact-finding on this issue
because this factor had not been identified in prior case law.
Moreover, the Government has not clearly articulated the nature,
extent, and severity of the harm resulting from the leak. 11
Without such evidence, it is impossible for a reviewing court to
determine whether the First Amendment interest in presenting
newsworthy information to the public — if indeed the district
court finds the information newsworthy — is outweighed by the
consequences of the leak. Moreover, although I recognize the
10
I would find a reporter’s claim of privilege to be at its
strongest when the disclosure at issue covers governmental
methods and policies that challenge what is moral, legal, and,
broadly speaking, strategic for our government to do. Cf. In re
Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1174 (D.C.
Cir. 2006) (Tatel, J., concurring in the judgment) (“It seems
hard to imagine how the harm in leaking generic descriptions of
[a top-secret satellite] program could outweigh the benefit of
informing the public about billions of dollars wasted on
technology considered duplicative and unnecessary by leading
Senators from both parties.”). In contrast, I would find it
unlikely that a reporter could avail himself of the privilege
when the leak concerns “the design for a top secret nuclear
weapon, for example, or plans for an imminent military
strike.”). Id. at 1173 (Tatel, J., concurring). Such leaks
convey little information useful to the public in its civic role
yet present great risks to national security.
11
I am well aware that the revelation of classified
government information can surely be among the most harmful of
crimes. However, it is not the fact that the information is
classified that renders the crime so harmful; the harm derives
from the content of that information, and what is, or may be,
done with the information if it falls into the wrong hands.
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difficultly of evaluating the government’s interests in a case
involving national security information, I am also mindful of
the fact that “[t]he First Amendment interest in informed
popular debate does not simply vanish at the invocation of the
words ‘national security.’” United States v. Morison, 844 F.2d
1057, 1081 (4th Cir. 1988) (Wilkinson, J., concurring). With
all things considered, the district court was correct in holding
that Risen was protected from disclosing his confidential
sources by a First Amendment reporter’s privilege.
I find it sad that the majority departs from Justice
Powell’s Branzburg concurrence and our established precedent to
announce for the first time that the First Amendment provides no
protection for reporters. Ante 25. Under the majority’s
articulation of the reporter’s privilege, or lack thereof,
absent a showing of bad faith by the government, a reporter can
always be compelled against her will to reveal her confidential
sources in a criminal trial. The majority exalts the interests
of the government while unduly trampling those of the press, and
in doing so, severely impinges on the press and the free flow of
information in our society. The First Amendment was designed to
counteract the very result the majority reaches today. In sum,
I would affirm the district court’s ruling as to Risen’s
assertion of a First Amendment reporter’s privilege, albeit
using the three-part LaRouche test and balancing the two
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additional factors identified herein: newsworthiness of the
leaked information and the harm resulting from the leak.
E.
Even if I were not inclined to recognize a First Amendment
privilege for a reporter in the criminal context given
Branzburg, I would recognize a common law privilege protecting a
reporter’s sources pursuant to Federal Rule of Evidence 501. 12
Rule 501 was promulgated three years after the Supreme Court’s
decision in Branzburg. See Pub. L. No. 93-595, 88 Stat. 1926
(1975). The Rule authorizes federal courts to create new
evidentiary privileges using the “common law . . . in the light
of reason and experience.” Fed. R. Evid. 501. The Rule “did
not freeze the law governing the privileges of witnesses in
federal trials at a particular point in our history, but rather
directed federal courts to ‘continue the evolutionary
development of testimonial privileges.’” Jaffee v. Redmond, 518
U.S. 1, 9 (1996) (quoting Trammel v. United States, 445 U.S. 40,
47 (1980)). By adopting Rule 501, Congress has given authority
to the courts to use case-by-case adjudication to find new
evidentiary privileges. United States v. Weber Aircraft Corp.,
12
To be sure, the district court ruled that the reporter’s
privilege is a constitutional one guaranteed by the First
Amendment. United States v. Sterling, 818 F. Supp. 2d 945, 954.
This court may, however, affirm on any grounds supported by the
record. MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536
(4th Cir. 2002).
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465 U.S. 792, 803 n.25 (1984) (“Rule 501 was adopted precisely
because Congress wished to leave privilege questions to the
courts rather than attempt to codify them.”). In light of
Branzburg’s insistence that “Congress has freedom to determine
whether a statutory newsman’s privilege is necessary and
desirable and to fashion standards and rules as narrow or broad
as deemed necessary to deal with the evil discerned,” 408 U.S.
at 706, a full discussion of the reporter’s privilege must
reckon with Rule 501.
Testimonial privileges “are not lightly created nor
expansively construed, for they are in derogation of the search
for truth.” United States v. Nixon, 418 U.S. 683, 710 (1974).
But the Supreme Court and the circuit courts, using Rule 501,
have recognized a number of testimonial privileges. See, e.g.,
Jaffee, 518 U.S. at 15 (recognizing psychotherapist-patient
privilege); Upjohn Co. v. United States, 449 U.S. 383, 386-90
(1981) (recognizing attorney-client privilege); Trammel v.
United States, 445 U.S. 40, 51-53 (1980) (recognizing marital
communications privilege); Goodyear Tire & Rubber Co. v. Chiles
Power Supply, Inc., 331 F.3d 976 (6th Cir. 2003) (recognizing
settlement communications privilege); Riley v. City of Chester,
612 F.2d 708, 715 (3d Cir. 1979) (recognizing a qualified
reporter’s privilege). All of these privileges are “distinctly
exceptional,” and have only been recognized because they serve a
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“public good transcending the normally predominant principle of
utilizing all rational means for ascertaining truth.” Jaffee,
518 U.S. at 9 (internal quotation marks and citations omitted).
In my view, the reporter-source privilege meets this high bar.
The Supreme Court has stated that “the policy decisions of
the States bear on the question [of] whether federal courts
should recognize a new privilege or amend coverage of an
existing one,” and “[i]t is of no consequence that recognition
of the privilege in the vast majority of States is the product
of legislative action rather than judicial decision.” Id. at
12-13. When the Branzburg decision issued, only seventeen
states had recognized some protection for a reporter regarding
his or her confidential sources. Branzburg, 408 U.S. at 689
n.27. Today, only one state, Wyoming, has not enacted or
adopted a reporter’s privilege. Thirty-nine states and the
District of Columbia have shield laws for reporters, whether
those shields are absolute or qualified. See Ala. Code
§ 12-21-142; Alaska Stat. § 09.25.300; Ariz. Rev. Stat. Ann.
§ 12-2237; Ark. Code Ann. § 16-85-510; Cal. Const. Art. I,
§ 2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90-119,
24-72.5-101; Conn. Gen. Stat. Ann. § 52-146t; Del. Code Ann.
tit. 10, § 4320; D.C. Code § 16-4701; Fla. Stat. § 90.5015; Ga.
Code Ann. § 24-9-30; Haw. Rev. Stat. § 621, as amended by 2011
Haw. Sess. Laws ch. 113 (June 14, 2011); 735 Ill. Comp. Stat.
115
5/8-901; Ind. Code Ann. §§ 34-46-4-1, -2; Kan. Stat. Ann.
§ 60-480; Ky. Rev. Stat. Ann. § 421.100; La. Rev. Stat. Ann.
§ 45:1451; Md. Code Ann. Cts. & Jud. Proc. § 9-112; Mich. Comp.
Laws § 767.5a; Minn. Stat. § 595.021; Mont. Code Ann.
§ 26-1-901; Neb. Rev. Stat. § 20-144; Nev. Rev. Stat. Ann.
§ 49.275; N.J. Stat. Ann. § 2A:84A-21; N.M. Stat. Ann. § 38-6-7;
N.Y. Civ. Rights Law § 79-h; N.C. Gen. Stat. § 8-53.11; N.D.
Cent. Code § 31-01-06.2; Ohio Rev. Code Ann. § 2739.12; Okla.
Stat. Ann. tit. 12, § 2506; Or. Rev. Stat. § 44.510; 42 Pa.
Cons. Stat. Ann. § 5942; R.I. Gen. Laws § 9-19.1-1; S.C. Code
Ann. § 19-11-100; Tenn. Code Ann. § 24-1-208; Tex. Civ. Prac. &
Rem. Code Ann. §§ 22.021-22.027; Utah Order 08-04 [Utah R. Evid.
509]; Wash. Rev. Code Ann. § 5.68.010; 2011 W. Va. Acts 78 (to
be codified at W. Va. Code § 57-3-10); Wis. Stat. Am. § 885.14.
In ten states without statutory shield laws, the privilege has
been recognized in some form or another by the courts. See
State v. Salsbury, 924 P.2d 208 (Idaho 1996); Winegard v.
Oxberger, 258 N.W.2d 847 (Iowa 1977), cert. denied, 436 U.S. 905
(1978); In re Letellier, 578 A.2d 722 (Me. 1990); In re John Doe
Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); Sinnott
v. Boston Retirement Bd., 524 N.E.2d 100 (Mass.), cert. denied,
488 U.S. 980 (1988); State ex rel. Classic III v. Ely, 954
S.W.2d 650, 653 (Mo. Ct. App. 1997); State v. Siel, 444 A.2d 499
(N.H. 1982); Hopewell v. Midcontinent Broad. Corp., 538 N.W.2d
116
780, 782 (S.D. 1995), cert. denied, 519 U.S. 817 (1996); State
v. St. Peter, 315 A.2d 254 (Vt. 1974); Brown v. Commonwealth,
204 S.E.2d 429 (Va. 1974); Hawkins v. Williams, No. 29,054
(Hinds County Circuit Court, Mississippi, Mar. 16, 1983)
(unpublished). A number of these jurisdictions – Alabama,
Arizona, California, Delaware, the District of Columbia,
Indiana, Kentucky, Maryland, Montana, Nebraska, Nevada, New
York, Ohio, Oklahoma, Oregon, and Pennsylvania – make the
privilege an absolute bar to compelling a reporter to divulge
his sources. On the basis of “the uniform judgment of the
States,” the Supreme Court recognized the psychotherapist-
patient privilege. Jaffee, 518 U.S. at 14. The landscape in
regards to the reporter’s privilege has changed drastically
since Branzburg. The unanimity of the States compels my
conclusion that Rule 501 calls for a reporter’s privilege.
F.
The paramount importance of the free press guaranteed by
our Constitution compels me to conclude that the First Amendment
encompasses a qualified reporter’s privilege. Using the factors
identified herein and given the facts at hand, Risen must be
protected from disclosing the identity of his confidential
sources. This is consistent with Branzburg and the need for
courts to balance “freedom of the press” against “the obligation
of all citizens to give relevant testimony with respect to
117
criminal conduct.” 408 U.S. at 724 (Powell, J., concurring).
Moreover, given the near unanimity of the states with regard to
a reporter’s privilege, I would recognize the privilege under
Federal Rule of Evidence 501. Thus, I would affirm the district
court’s order quashing the trial subpoena and denying the
Government’s motion to admit Risen’s testimony as to the source
relied upon by Risen for Chapter Nine of State of War. As to
Issue I, then, I respectfully dissent from the majority’s
holding.
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