• 
• Some highlights from this interview
• The BALCO case and the importance of grand jury secrecy
• History of the reporter's privilege in law
• Do we need a federal shield law?
• Related Link
• + "Leakers, Bloggers and Fourth Estate Inmates: The Misguided Pursuit of a Reporter's Privilege" (pdf)
  In this 2006 law journal article, Eliason argues that we don't need a reporter's privilege. He is skeptical that the lack of a privilege has deterred confidential sources, and he notes that bloggers have complicated the debate by raising the question of whom should be considered journalists.

Eliason, a former federal prosecutor, headed the Washington, D.C. U.S. Attorney's Office Public Corruption/Government Fraud unit from 1999 to 2001. He now lectures at American University and George Washington University law schools. Here, Eliason discusses the reporter's privilege and grand juries as they relate to the cases of BALCO reporters Mark Fainaru-Wada and Lance Williams, as well as blogger Josh Wolf. This is the edited transcript of an interview conducted on Nov. 17, 2006.

Can you explain for an average person ... why Josh Wolf, this 24-year-old blogger, is sitting in jail?

There's a federal criminal investigation going on in San Francisco, and the federal grand jury that's looking into the possible crimes has subpoenaed Mr. Wolf for some video footage that he shot at a riot, basically, that took place in San Francisco. ... He has refused to comply, claiming that he has a privilege as a journalist not to turn that material over. The court has disagreed, so he's been held in contempt. When that happens with any kind of witness who refuses to testify without a valid legal excuse, the remedy usually is, you get sent to jail until you change your mind.

But he and the people that are working for him think there is some sort of valid legal excuse. What are the rules around what a reporter would have to turn over to the court?

Well, it's a pretty clear-cut case, because it's a grand jury investigation. There's a Supreme Court case that's been around for about 30 years called Branzburg [v. Hayes] that says that there is no privilege for a reporter to refuse to comply with a federal grand jury subpoena. There are other issues that arise in different kinds of cases, but in a case like this, where it's a federal grand jury, the courts are pretty uniform that there is no privilege. ...

Can you talk a bit about Branzburg, what that decision was and how it applies for this case?

Yes. Branzburg was a Supreme Court case in the early 1970s. It was actually four different cases that were consolidated and brought to the Supreme Court, the question of whether reporters do have a privilege under the First Amendment of the Constitution not to comply with a grand jury subpoena. ... The general argument that supporters of a reporter's privilege make is that if a reporter can be compelled to testify, then confidential sources will no longer trust the reporter, and they won't talk to them, and a reporter's ability to gather information and then transmit it to the public will be damaged, so the country's interest in a vigorous and free press will be damaged. ...

“All of these major stories that have come out over the years -- Watergate, Iran-Contra, Abu Ghraib, secret CIA prisons -- all took place without a reporter's privilege law.”

So it went to the Supreme Court on that question, and the Court, 5-4 -- it was very close -- ruled that there was no First Amendment privilege for a reporter to refuse to testify. The basic rationale of the Court was, yes, the free press is important, but there are other competing interests here as well. On the other side of the equation, there is the government's interest in investigating and prosecuting crime. ... The line they used is, the Court won't accept the argument that it's more important to write about crime than to do something about it, and so there is no privilege: You have to testify. ...

... How much is public opinion a factor in how these cases are decided?

Well, public opinion shouldn't affect at all the Court's decision. The courts should just apply the law and the Branzburg precedent and the other rules that are out there. Where public opinion might have more of an impact is in Congress. I mean, Congress has been considering this proposed federal [shield] legislation for some time now. It hasn't passed. ...

[7th Circuit Judge] Richard Posner wrote an opinion reminding everyone about what the actual verdict was in Branzburg v. Hayes, and people have correlated that with less of a reluctance now to subpoena journalists. ... Do you see that as having any influence in this decision with Josh Wolf?

I think it's pretty hard to make that correlation. Judge Posner is a very highly regarded judge, and that was an influential opinion, or an important opinion. But, you know, he's in the 7th Circuit; Josh Wolf is in California, not governed by Judge Posner's opinion. And the 9th Circuit has had its own law for a long time on when there is or is not a privilege, and held long ago that Branzburg does apply in a grand jury proceeding. So I just don't see it really having any significant effect. ...

... How did we come to have this notion that the First Amendment, which meant the freedom of the press, implies this reporter's privilege?

Well, we don't. ... The reporter's privilege is a fairly recent development, just in terms of legal history. Things like attorney-client privilege or spousal privilege, clergy privilege, those all have long, long historic, common-law roots that even predate the founding of our country. Reporter's privilege and arguments for the privilege are a fairly recent thing, sort of in the last 50 years or so. ... Where they've been most successful is in ... getting the various states to pass shield laws. ... But for more than 30 years, since Branzburg, federal law has been [that] there is no constitutional privilege, and Congress has repeatedly declined to pass a federal privilege law. So at least within the federal system, you're still left with this debate among the courts about what exactly does Branzburg mean, and when does it apply?

... How much can common law be used to eke out a case for reporter's privilege?

I think the common-law argument is the strongest argument that privilege advocates have now, because there is room to argue. Branzburg says no First Amendment privilege, but we can argue for a common-law privilege. And there's a federal rule called 501 that says the courts can interpret privileges in light of the common law. Some have argued that means the court should find a common-law reporter's privilege based on the fact that almost every state has a reporter's privilege. ...

The counterargument to that is Congress has repeatedly considered passing a federal privilege and hasn't done it. And it really is a legislative decision, because there are a lot of policy concerns, and balancing has to take place about when should the privilege apply, when should you allow it to be overridden, what kinds of cases, things like that. ... For a court to reach in and discover a privilege in common law after Congress has repeatedly failed to pass one is really not appropriate, because the court is sort of legislating. That's the counterargument. But that is sort of the hot area now, is trying to get courts to recognize a federal common-law reporter's privilege.

Are there ever any circumstances in which it's legally acceptable for a reporter to refuse a subpoena?

Yes, there are. ... There's a lot of disagreement on this among the lower courts, but in cases that are not grand jury investigations, a number of courts have recognized a reporter's privilege, ... especially in civil cases. ... So it's always a balancing test in the courts that depends on what kind of case it is, and then also on how compelling the need for the information is. ...

We have a quote ... from Nick Kristof, The New York Times columnist, told us that one of the real reasons why journalists haven't been prosecuted over those 30 years is not anything to do with the legal protections, because they don't exist. It has to do with prosecutorial discretion; it's prosecutors, judges having this notion about the importance of the press and deciding at times not to subpoena.

There is an important role that prosecutorial discretion plays in these cases, because Branzburg made it clear there is no legal privilege for reporters not to testify. But as a matter of policy, the Department of Justice has these guidelines they put in place to say, essentially, to the Department of Justice attorneys, you can only do this as a last resort. You can't just run out and subpoena the reporters as the first thing you do. If you want to subpoena the reporters, you have to come in and demonstrate to very senior department officials that you really need to: There's a compelling need for this information; in your case, you haven't been able to get it anywhere else; you've tried to negotiate with the media to get it and have been unsuccessful. ...

So would it have been appropriate for this prosecutor in the Josh Wolf case to say, ... "I'm not going go after this kid"?

Well, you can't say without knowing what they're looking at and what else they have. It's always possible for a prosecutor to say in a given case, "We don't really need the information," or, "This isn't a significant enough case to go after the information." ... But they do have to go through these steps to demonstrate to the Department of Justice that there is a need for the information. ...

Wolf claims that what he has on his tape doesn't record the crime that's being investigated, and so ... his outtakes ... could be used, as he terms, for "a fishing expedition," ... and that way he would be used as an arm of law enforcement.

I don't think that if a reporter is subpoenaed by a grand jury and is compelled to turn something over, that that turns him into an arm of the state. And it's not as if they're out investigating and filming these activities and then voluntarily turning it over to the government. If I witness a crime committed by a friend of mine, for example, and then a grand jury subpoenas me to come in and testify, I may not want to do that. But the law requires that I do, and comply. ...

I guess the bottom line on that is, it's not really his decision as to what's important and what isn't in a federal grand jury investigation. We don't really know what exactly the government is looking at in this case, and unless you're involved in the actual grand jury investigation, you can't know. So whether it is some broader set of allegations that's being investigated or some broader kind of conspiracy, only people involved in the actual investigation know that. ...

Grand juries historically have a very wide range [of] power to investigate any potential crimes that have taken place within their jurisdiction, and they have a historic right to demand that any citizens who have evidence about that come in and give that evidence to the grand jury. ... I wouldn't call it a fishing expedition, but they can be very wide-ranging. ... So you can't stand from the outside of a grand jury investigation and say, "Well, they're only looking at burning a police car, and so therefore this information doesn't matter." That may just be one of many things that they're looking at. ...

There's a California shield law. So why isn't Josh Wolf protected?

Right. Well, the state shield law doesn't apply in a federal investigation. The federal court actually noted in a footnote that it's not at all clear that the state shield law would apply anyway, ... because the California shield law requires you to be employed by a media organization, and Josh Wolf isn't. ... There is a lot of potential overlaps, sometimes, between what's a federal investigation and what's a state investigation. I think the likelihood is that this is a federal investigation because this is a matter of a protest at an international economic summit. ...

Josh Wolf said, "I think it's an opportunity for the federal government to decimate the protections of journalists within these states. If [SFPD] property is considered within federal jurisdiction and not protected by state shield laws, then ... anything that happens on campuses, ... anything that happens on interstate highways, is not at all protected by state ... shield laws." ...

Yeah. It's always been the case that there is both federal and state criminal jurisdiction, ... and when it's a federal investigation, state laws, like the state privilege statute, don't apply. Congress has not seen fit to pass a federal privilege statute. ... Anything's possible, but the notion that this entire investigation was shifted out of state court into federal court solely to try to get that one piece of evidence ... strikes me as implausible, especially when it's not even clear that the state privilege law would apply. ...

Is it, as you can tell, a factor at all in this case, the fact that he's a blogger and not a professional journalist by some definitions? ...

The fact that Josh Wolf is not a traditional journalist but is a blogger doesn't seem to have been an issue in this case. Everybody has been proceeding under the assumption that he qualifies as a journalist for any privilege that might or might not exist. But it certainly is a very interesting question in general: the extent to which the privilege laws that are out there will apply to people who are not in the traditional mainstream media but who are bloggers or other kind of Internet journalists. ...

I want to go on to BALCO [Bay Area Laboratory Co-Operative]: ... If you're a casual observer, ... you might see reporters who are exposing corruption, drug use in baseball, who are facing jail, [and] baseball players who are doing the drugs are rich; they're not being punished at all.

The athletes were testifying in a grand jury, again, under a guarantee of grand jury secrecy. Now, it's not an absolute guarantee, because they know if they have to testify at trial, of course, then ultimately the secrecy is going to go away then. ... But they do know at least when they go in and testify that their privacy is protected. The leaks that were made to the reporters then sort of took away those rights, exposed the athletes to a lot of public scrutiny, the congressional hearings and a great deal of reporting and stories about their activities. Now, their activities were wrong, using illegal steroids, and so you can say that's a good thing as well.

But the fact is, grand jury secrecy exists for a reason. It protects the privacy of people who might be under investigation but end up not being charged. So their reputation, their name is not put out there as possibly having done something wrong if they end up not being charged at all. It protects witnesses who might be fearful about it being known that they have cooperated in a case. And so it allows that to remain secret.

The BALCO investigation now is about more than just a grand jury leak, because the information was leaked in violation of a federal judge's order. Everybody involved in the case then came in and denied doing it, so someone may have committed perjury. And there's a suspicion that the defense may have been involved in the leak and then turned around and tried to get their case dismissed by blaming the government. So that would be a possible obstruction of justice or contempt or other charges. So there's a lot more going on than simply a leak of grand jury information. ...

We talked to Mark Corallo, formerly with the DOJ under Attorney General [John] Ashcroft. He calls this case an abuse of power; he says the DOJ under General [Alberto] Gonzalez has basically violated the [DOJ] guidelines. Is that valid?

Well, I'm not sure how Mr. Corallo could say that without having access to the grand jury information. ... It's pretty hard to make a judgment of whether the guidelines have been violated when you don't have the information as to what's being investigated and what's going on. So that's not entitled to much weight in my mind.

He told us, in the DOJ guidelines, that only under "exigent circumstances" should journalists be pursued, and he said that "exigent" was defined ... as emergencies, life and death, real national security threats, a situation where a leak caused a terrorist organization to be tipped off as to where the feds were. ...

Yeah. I think there's some disagreement about what that term "exigent" means within those guidelines. I've seen other interpretations of it as well. He's entitled to his view. But again, I think without knowing everything that the government is looking at in this investigation and everything that's going on in the grand jury, it's awfully hard for someone on the outside to make a judgment about whether or not the guidelines have been complied with.

The other thing that's important to keep in mind here as well is a federal judge asked the government to look into this. This isn't something that the prosecutors have just gone out on their own. ... When a federal judge asks you to investigate why their orders were violated, you have to take it seriously.

I'm going to read to you another quote from another interview. This is with one of the [San Francisco Chronicle] reporters, Mark Fainaru-Wada. He said that "without the names, the stories don't resonate. I mean, without the names, you have the indictments talking about four guys who nobody's ever heard of or cares about, dealing performance-enhancing drugs to a bunch of athletes that are not identified." ...

Well, an indictment is not a press release, you know? It's not the job of an indictment to make all this information public. The job is to file specific criminal charges, and I think there were very good reasons that the athletes weren't named in that indictment, primarily to prevent exactly what happened once their names were exposed. Once their names became known, there was this tremendous amount of publicity, and the criminal defendants all of a sudden came into court and said: "We can't get a fair trial. Look at all this flurry of attention now. Everybody thinks we're evil, and we can't possibly get a fair trial. You should dismiss the case." ...

Much is made of the irony in this case that President Bush apparently commended these reporters themselves for having done a vital public service. If the public good was served, why do these reporters deserve to go to jail?

That's sort of an "ends justifies the means" argument; in other words, no matter how many laws were violated or how much the federal judge's order was defied, it's OK, because we have this really important story. Writing the story is not the only interest at stake here. There were interests in these criminal defendants in getting a fair trial and interests in a federal judge's orders being complied with. …

I think you can grant that there's some public good that came from the reporting, but remember, there was a lot of reporting that they did on this story that did not involve leaked grand jury information. But now we're not talking about the reporting and the steroids story anymore. Now we're talking about the ability to investigate somebody who may have committed perjury, obstruction of justice, violated a court order by giving information to a journalist illegally. ...

[San Francisco Chronicle reporter] Lance Williams said: "I respect the court system, and I'll comply with their wishes in every way possible. But I am being asked to -- not asked, told to betray not only sources, but betray ideals that I've held for over 30 years as a reporter. And I'm also being asked to give up my career, because don't kid yourself: If they bully me into betraying my sources, I can't work anymore."

Well, I think it's an interesting notion in journalism that the professional ethics and standards require them to violate the law. No one in our country has a right to decide themselves what the law requires. I know journalists feel very strongly that they need this privilege in order to do their jobs. Congress hasn't agreed, and the Supreme Court hasn't agreed, so journalists have no more right than any other witness to say, "I'm just not going to testify, no matter what you say." ...

The [Valerie] Plame case, which had the issue of reporter's privilege really all over the headlines, there were a lot of people that thought that the special prosecutor, [Patrick Fitzgerald], who doesn't have to work within those DOJ guidelines, that he went over the line just going right to journalists. What's your take?

I think the important thing to remember about the Plame case, BALCO and a lot of the other high-profile cases that have been going on is these are cases where the potential crime is a conversation with the journalist itself. ... In a case like that, it's almost impossible to investigate without talking to the reporter, because the person who made the conversation, if you can identify them, is going to have a Fifth Amendment privilege not to testify [and incriminate themselves]. That leaves the journalist as probably the only witness to a possible federal crime, so I don't think it's accurate to criticize the prosecutor in the Plame case for going straight to the journalists. ...

The Plame case, again, was actually a fairly straightforward application of Branzburg. It was, again, another federal grand jury investigation, and the court had no problem finding that Branzburg applies: There is no privilege, and the reporters have to testify. So it was a very interesting, high-profile case, got a lot of attention, but it didn't really make new law. ...

Many people have asserted ... that there's been an increase in cases where a reporter's privilege is being challenged and debated recently. To what do you attribute this rash of cases here?

There has been a real flurry of high-profile cases recently, and I'm not sure what you attribute that to. But the fact remains that, in general, these cases are still extremely rare; we're talking about a handful of cases out of the tens or hundreds of thousands of reports that are filed every day by journalists.

Another thing we have to keep in mind is that there's just a lot more media now. ... In the time Branzburg was decided, we had three TV networks and newspapers. Now you've got cable and satellite and the Internet and 24-hour news. If there are many, many more reporters working, then you would expect to see an increase in the numbers. ...

In terms of the importance of the sanctity of the confidential source-reporter relationship, all of these really important stories that have come out over the last 30-odd years -- you know, My Lai, Watergate, Abu Ghraib, Iran-Contra -- [former Washington Post executive editor] Ben Bradlee told us that the first 150 stories they did on Watergate didn't have a single source named to them.

And all of these major stories that have come out over the years -- Watergate, Iran-Contra, Abu Ghraib, secret CIA prisons -- all took place without a reporter's privilege law. I think history teaches us -- and this is another thing that Branzburg said -- leaking happens, and it happens for a lot of reasons. It always has happened, and I think there's little reason to believe that the presence or absence of a privilege law is the thing that decides whether or not a source is going to come forward and talk to a reporter.

A reporter can promise a great deal of confidentiality just by saying: "I'm not going to publish your name, and I'll never give it up voluntarily. ... I would only reveal it after I finish all my appeals, and fight it as long and as far as I can, if a court orders me to testify. Only then would I give up your name." That's a great deal of confidentiality, because that very rarely happens. There are so many other ways for a source to be revealed, through internal investigations or other kinds of investigations. ...

A source always has the option, if they're really, really concerned, to give the information anonymously, to provide information to a reporter without identifying themselves -- slip the documents over the transom, send them a plain brown envelope or make an anonymous phone call; don't even tell the reporter who you are. ...

All these interesting cases have renewed calls for a federal shield law. How appropriate is that as a response to these complicated cases?

Well, if there's going to be a privilege, it should definitely be Congress that does it. I don't think the courts should be discovering these complicated privileges in the common law and writing the terms themselves. So if Congress weighs all the policy considerations and determines that they think a privilege is appropriate, then that's fine. ...

Personally, I don't think the federal shield law is a very good idea, for a couple of different reasons. First of all, I don't think there's evidence that the law does what it says it will do, which is encourage sources to come forward who otherwise would not come forward. History shows us that sources come forward for a lot of reasons, with or without a shield law. ... And then the second reason, I think, is with the rise of the new media and particularly on the Internet, applying the law becomes very problematic, because you either have to say anyone who says they're a journalist is a journalist and can assert the privilege, or you have to have the government come in and start drawing lines. ... And having the government draw those kinds of lines is problematic from a First Amendment standpoint. ...