Month: October 2019

NMU WASHINGTON, D.C. Confidentiality/Privilege Oct 1, 2001

Justice Department sidesteps request to free jailed author

A government attorney said Vanessa Leggett has had ‘recourse of the courts’ but didn’t indicate if the department applied its guidelines for subpoenaing reporters to her.

The Justice Department apparently isn’t ready to free a Houston author who has spent 10 weeks in jail for refusing to disclose confidential information to a federal grand jury.

In a letter dated Sept. 27 to the Reporters Committee for Freedom of the Press, a Justice Department official noted that Vanessa Leggett has lost twice in court: once to the federal district court that held her in contempt, and again when the U.S. Court of Appeals in Houston (5th Cir.) rejected her appeal.

“She has thus had the recourse of the district and appellate courts to protect her rights during the grand jury process,” wrote Timothy D. Wing, counsel to the director of the Executive Office for United States Attorneys.

In a Sept. 5 letter, the Reporters Committee urged Attorney General John Ashcroft to intervene and allow Leggett to leave jail. The press freedom group asked Ashcroft to acknowledge that Leggett is a journalist and apply its guidelines for subpoenaing reporters to Leggett. If those guidelines had been followed, the subpoena for Leggett’s research would be withdrawn, the civil contempt charge would be dissolved and Leggett would be freed from jail, the Reporters Committee argued in its letter.

Wing responded that the Justice Department did consider its guidelines. However, the letter didn’t say specifically whether the department considered Leggett a journalist and applied its guidelines to her.

“The Justice Department recognizes that news gathering is essential to a free press,” Wing wrote. “I assure you that this matter was thoroughly and appropriately reviewed within the Department of Justice, and that full consideration of the guidelines was accorded.”

Leggett spent four years researching a high-profile Houston murder case for a book she planned to write. She was jailed on July 20 for refusing to disclose her sources or research materials. The U.S. Court of Appeals in Houston (5th Cir.) on Aug. 17 upheld the contempt citation and ruled that no reporter’s privilege exists against a grand jury subpoena. The court did not decide whether an unpublished book author is a journalist, finding instead that Leggett has no privilege to refuse to turn over her notes to a grand jury whether or not she is a journalist.

(In re Grand Jury Subpoena; Author’s Counsel: Mike DeGeurin, Houston) — MD

Related stories:

Letter to the Attorney General about Vanessa Leggett (9/5/2001)
Appellate panel finds no reporter’s privilege exists before grand juries (8/18/2001)
Amicus brief in In Re: Grand Jury Subpoena to Vanessa Leggett (7/30/2001)
Author lands in jail for refusing to turn over notes (7/25/2001)

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© 2001 The Reporters Committee for Freedom of the Press

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The Justice Department today announced further changes to its internal guidelines for issuing subpoenas and search warrants to journalists. The Reporters Committee for Freedom of the Press and other members of the news media had urged the Justice Department to revise the guidelines to offer greater protections for reporters and news organizations.

“While we have not yet seen the final regulations, we welcome these changes and appreciate the willingness of Attorney General Holder and DOJ officials to listen to the concerns of the news media when recalibrating their policies,” said Reporters Committee Executive Director Bruce D. Brown. Noting the Department’s decision this week not to call New York Times reporter James Risen as a witness at an upcoming federal trial, Brown added, “We hope that decision coupled with the new guidelines reflects that we’ve turned a corner with the DOJ.”

Last year, in the wake of news stories in May 2013 revealing that Justice Department had secretly seized the phone and email records of journalists from the Associated Press and Fox News, the Justice Department issued revamped guidelines – the first time they had been updated since the 1980s – that expanded the coverage of the guidelines to include all newsgathering records held by third parties (such as email service providers and credit card companies), applied protections to journalists when the Department considered issuing search warrants, and stated that journalists would almost always be notified before the government sought their records.

But those policies were also conditioned on a new concept of “ordinary” newsgathering to which media groups objected. The guidelines published today no longer contain this term and instead protect reporters engaged in all “newsgathering activities.”

“We are pleased that the new guidelines protect ‘newsgathering activities’ without qualification whenever the government seeks information related to a journalist’s work reporting and disseminating the news,” Brown explained.

The new guidelines also clarify other sections to ensure that all newsgathering records are covered and that exceptions to protections are as narrow as possible.

The Reporters Committee helped coordinate a News Media Dialogue Group of leading news industry leaders, who met with DOJ to express concerns about subpoenas and offer suggestions for improving the process to protect newsgathering and reporter-source relationships. Members of the group, which was put together by the Justice Department as a part of its new media subpoena practices last year, are Susan Page, Robin Sproul, Ken Strickland, Jerry Seib, Bill Keller, Jane Mayer, Karen Kaiser, Steve Coll, Leonard Downie, and Kurt Wimmer, in addition to Brown of the Reporters Committee.

About the Reporters Committee

The Reporters Committee for Freedom of the Press was founded by leading journalists and media lawyers in 1970, at a time when the nation’s news media faced a wave of government subpoenas asking reporters to name confidential sources. Today it provides pro bono legal advocacy, resources, and support to protect First Amendment freedoms and the newsgathering rights of journalists. Funded by corporate, foundation, and individual contributions, the Reporters Committee serves the nation’s leading news organizations; thousands of reporters, editors, and media lawyers; and many more who use our online and mobile resources. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Amending the Department of Justice subpoena guidelines

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An Illinois man who has spent more than 30 years in prison on a murder charge will receive a new trial — but his attorneys won’t use some of the strongest evidence that supports his innocence because of a controversy that pitted prosecutors against the student journalists who uncovered it.

Northwestern students working with the Medill Innocence Project cast doubt on the conviction of Anthony McKinney, who was convicted of killing a security guard, by obtaining evidence that included statements from two witnesses who suggested others were responsible for the crime.

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McKinney’s defense attorneys withdrew the statements in question during a hearing on Wednesday with Cook County Judge Diane Cannon’s permission. Last month, the attorneys filed a motion to exclude the evidence in an effort to persuade prosecutors to drop a subpoena for the students’ notes, grades and other information.

The excluded evidence included information about potential alternative suspects in the crime. The evidence defense attorneys will now use at trial will include eyewitnesses who say police coerced them into giving incriminating statements about McKinney, The Daily Northwestern reported.

A spokeswoman for the Cook County state’s attorney’s office told the Chicago Sun-Times that two men’s exculpatory statements were the "foundation" of the defendant’s claim. According to the prosecution, the two witnesses who gave the excluded evidence later claimed that the former Northwestern journalism students had paid them for the interviews, a claim the Innocence Project has vehemently denied.

Northwestern has argued that the Illinois’ Reporters Privilege Act protects student journalists’ news-gathering materials from compelled disclosure. Newspapers, news agencies and journalism groups filed friend-of-the-court briefs in January that support the Medill Innocence Project’s argument.

A group of anonymous commenters on a Montana newspaper Web site can stay that way thanks to a Montana District Court judge’s ruling Wednesday.

Judge Todd Baughgranted the Billings Gazette’s motion to quash a subpoena issued by a former candidate for local public office, the newspaper reported. The candidate, Russ Doty, had brought a libel suit against his opponent, Brad Molnar, in the 2004 election for the Billings Public Service Commission. In the course of the lawsuit, Doty issued a subpoena to the Gazette, which wasn’t a party in the case, seeking the identity oftwo peoplewho had posted comments about Doty anonymously on the newspaper’s Web site.

Specifically, Doty sought the identity of two bloggers, going by the monikers "CutiePie" and "Always wondering," whom Doty thought might be Molnar in disguise, the Gazzette’s attorney Martha Sheehy said. Doty also argued that even if they were not Molnar, the bloggers would be helpful witnesses to prove the extent of his reputation damage.

The subpoena also requested "all electronic information. . . including but not limited to IP addresses, e-mail addresses, and other identity and contact information" for Molnar, the Gazette reported.

In granting the newspaper’s motion to quash the subpoena, the judge found that the anonymous bloggers were protected by the Montana shield law, known as the Media Confidentiality Act. The law protects news organizations, as well as “any person connected with or employed by [a news organization] for the purpose of gathering, writing, editing, or disseminating news.”

Though the law does not explicitly include bloggers or online commenters within its protection, the judge agreed with the Gazette that online commenters are sufficiently connected to the newspaper to warrant protection.

This was the first case dealing with anonymous bloggers in Montana that Sheehy knew of, she said. She was pleased with the victory, but not surprised: the shield law there is broad, she pointed out, so it protects not just anonymous sources, but also any information gathered or obtained by news organizations.

"There aresimilarities between old and new technology," Sheehy said. "If a person’s speech is anonymous in the printed newspaper, the statute protects it. This is anonymous speech in a different form."

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Update, Oct. 23: Kiriakou pleaded guilty today to one count of disclosing information identifying a covert agent and will likely be sentenced to two and a half years years imprisonment under a plea deal with prosecutors. As part of the agreement, the remaining four counts of the indictment, including three counts of violating the Espionage Act, were dismissed. Kiriakou is scheduled to be sentenced in January. The guilty plea followed a ruling by Brinkema that the government would only have to prove that the disclosed information could be used to harm the United States. Kiriakou unsuccessfully argued that prosecutors would have to meet a higher standard: proof that Kiriakou intended the harm. Brinkema did not rule on the journalists' motions to quash, but the subpoenas presumably expire with the guilty plea.

Two reporters are challenging subpoenas seeking their testimony in the government’s latest whistleblower prosecution.

Washington Post researcher Julie Tate and another individual identified in court documents only as “Journalist A” have filed motions to quash subpoenas issued by John Kiriakou, an ex-CIA officer charged with disclosing classified information to the media. U.S. District Judge Leonie M. Brinkema of Alexandria, Va., is scheduled to hear arguments on the motions Thursday afternoon.

Observers, including journalists who have written about the Kiriakou prosecution, speculate that Journalist A is Matthew Cole, a former ABC News producer who was a freelance writer at the time of the alleged leaks. Another journalist, identified in court documents only as "Journalist B" is believed to be New York Times reporter Scott Shane. Whether Kiriakou also subpoenaed Shane is unclear, although a motion to quash by him is not included in the case docket.

Both Tate and Journalist A argue that the First Amendment-based reporter’s privilege protects them from compelled disclosure of the information Kiriakou seeks. Journalist A also is asserting his Fifth Amendment right against self-incrimination.

Kiriakou was indicted in April after lawyers representing high-profile prisoners at Guantanamo Bay received personal information about CIA employees. He was charged with violating the Espionage Act, the Intelligence Identities Protection Act and making false statements to the CIA Publications Review Board about “The Reluctant Spy” — a 2010 memoir he published about his time searching for terrorists as a CIA operative. In July, the U.S. government said it will not subpoena journalists as witnesses in the case.

Kiriakou is among six government employees accused within the last few years of violating the Espionage Act by speaking to the news media.

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An appeal of Brinkema’s order quashing a subpoena seeking the trial testimony of New York Times reporter James Risen in the prosecution of another former intelligence officer, Jeffrey Sterling, is pending before the U.S. Court of Appeals in Richmond, Va. (4th Cir.).

Kansas reporter Claire O'Brien has been held in contempt of court and fined $1,000 after not appearing in court this morning to testify, the Topeka Capital-Journal reported.

She had previously been ordered by a Ford County court to testify about a confidential source and a jailhouse interview with a murder suspect in a grand jury proceeding. In that proceeding, she unsuccessfully argued that she was protected by a reporter's privilege. Currently, there is no shield law in Kansas.

After the high court granted a stay in that matter, she was served with another subpoena to appear at the actual criminal trial. O'Brien's newspaper, the Dodge City Globe filed an appeal in the state supreme court and lost.

O'Brien is seeking her own representation to continue to fight the case, the Capital-Journal reported.

The U.S. Court of Appeals in New York (2nd Cir.) heard oral arguments Tuesday in a case that could affect whether reporters can refuse to testify about their sources.

In the appeal of a fraud conviction against former Monster Worldwide Inc. executive James Treacy, the defense argued in its brief that Treacy was deprived of his Sixth Amendment right to confront witnesses against him when a lower court limited the testimony and cross-examination of a reporter who invoked his privilege not to testify.

According to the brief, Wall Street Journal reporter Charles Forelle was called to testify for the government regarding statements Forelle attributed to Treacy in a 2006 Journal exposé on corporate backdating of stock options. Treacy was accused of engaging in illegal backdating of employee options and was convicted of conspiracy and securities fraud in the lower court, according to Bloomberg.

When Forelle was called by the government to testify, he invoked his First Amendment-based privilege not to disclose information, arguing that his testimony was not essential to the case, according to the Bloomberg report. The government disagreed, insisting that comments Treacy made during the interview for the Journal could prove he lied to the government by denying involvement in backdating of employee options. The court then reached a compromise in which Forelle was forced to testify, but attorneys were only allowed to question him about statements attributed to Treacy in the Journal story.

In their brief, defense lawyers pointed out that "Treacy spoke only about his own option grants" in the Journal interview and was not in fact denying involvement in the process of issuing options to all company employees, as the government was trying to prove. The defense argued that because they were limited to questioning Forelle about only the statements made in the Journal story and, thus, were prevented from discussing outside communication between Forelle and Treacy that purportedly could prove their case, they were obstructed from proving Treacy's statements referred only to his own options.

"The court’s 'tight limit' on the scope of the reporter’s testimony . . . resulted in only one side of the conversation being admitted: the government got to admit the reported statements, and argue to the jury they were lies, while the defense was prevented from questioning the reporter about the context or details of the interview, which bore critically on whether the statements were true or false," the defense brief says.

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Treacy's lawyers also argued they were "further prevented from testing the credibility of the reporter's answers," and that this was a gross violation of the defendant's right to confrontation.

"The journalist’s privilege . . . does not trump a criminal defendant’s right to confront and cross-examine a government witness," the defense wrote.

In response, government prosecutors argued that the trial court was completely justified in balancing rights under the First Amendment against Treacy's right to confrontation, and that this did not amount to a violation of the defendant's Sixth Amendment rights. Prosecutors also pointed out that the appellate court has a long history of defending the reporter's privilege.

Dow Jones & Company Inc., publisher of the Wall Street Journal, filed a friend-of-the-court brief, defending their reporter's First Amendments rights and arguing that the court "should have simply quashed the Subpoena."

Dow Jones also urged the court to define the exact circumstances under which a reporter may be called to testify in federal court, arguing that such a standard should follow precedent from U.S. v. Burke, which requires that a reporter's testimony be "highly material and relevant" in order for the court to override the reporter's privilege.

"Accepting the Government's own arguments," the brief argues, "the Subpoena was nothing more than an attempt at unnecessary bolstering of a fact that had already been established. Forelle's testimony, therefore, cannot be considered highly material and relevant, as the Burke standard requires."

The core issue for the press in this case is a direct conflict between reporters’ rights under the First Amendment and a defendant’s rights under the Sixth Amendment. A ruling in favor of the defense could give criminal defense lawyers the power to fully question reporters during cross-examination and could affect reporters' ability to compromise and settle subpoena battles by agreeing to provide partial testimony, as Forelle did in this case.

During oral arguments Tuesday, the court was more concerned with the inadequacy of the cross-examination than with the rights of the press, said Bloomberg reporter David Glovin. One judge inquired whether Forelle was “on some sort of pedestal,” while another argued that the cross-examination “was so limiting.”

Although the court did not comment directly on the future of the reporter's privilege, Glovin said, one judge hinted that an upcoming ruling in another Second Circuit case could have an impact on the rights of the press.

In a dispute between oil giant Chevron and documentary filmmaker Joe Berlinger, the Second Circuit ruled earlier this year that Berlinger must release 600 hours of footage gathered for his film “Crude,” which depicts a legal battle between Chevron and residents of the Amazon region who claim the company is responsible for massive pollution in the area.

On July 15, the court entered an interim order demanding that the documentary maker release most of the footage, but has yet to issue a more detailed written opinion.

During oral arguments in Treacy’s appeal, the judge indicated that the Chevron ruling may affect the reporter’s privilege "at least around the edges," Glovin said.

The U.S. Court of Appeals for the Fourth Circuit declined a request for rehearing by New York Times reporter James Risen on Tuesday. Of the 14 judges, 13 rejected the petition to rehear the case.

A three-judge panel had ruled in July that Risen would have to testify to the identity of his confidential source in a story involving information leaks from the Central Intelligence Agency.

Judge Roger L. Gregory, who dissented in the 2-1 July ruling, cast the single dissenting vote Tuesday in the decision denying rehearing.

“The majority [opinion] 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,” Gregory wrote in July.

The original ruling from the U.S. District Court held that Risen was protected by a reporter’s privilege and did not have to testify.

However, the Fourth Circuit reversed, holding that “[t]here 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 witnessed or participated in, absent a showing of bad faith, harassment or other such non-legitimate motive, even though the reporter promised confidentiality.”

In writing his dissent to the denial of rehearing on Tuesday, Gregory quoted President Kennedy, emphasizing the importance of the First Amendment and saying that no country can succeed without criticism.

He noted that there are two instances when a court will allow a case to be heard in front of the full panel of judges in a circuit, one being when the proceeding involves an issue of exceptional importance. “There can be no doubt that this issue is one of exceptional important, a fundamental First Amendment question that has not been directly addressed by the Supreme Court or our Sister Circuits,” he wrote.

“An independent press is as indispensable to liberty as is an independent judiciary. For public opinion to serve as a meaningful check on government power, the press must be free to report to the people the government’s use (or misuse) of that power. Denying reporters a privilege in the criminal context would be gravely detrimental to our great nation,” Gregory wrote.

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There is no federal shield law protecting journalists, but 49 of 50 states recognize a reporter’s privilege in some form (39 states and the District of Columbia have passed shield statutes). A shield bill passed the Senate Judiciary Committee in September and is headed to the full Senate for consideration.

The Las Vegas Review-Journal is facing a federal subpoena for identifying information about people who commented on its Web site, the newspaper disclosed Sunday.

Review-Journal Editor Thomas Mitchell wrote a sharply worded critique of the subpoena in his weekly column, while also disclosing what Assistant U.S. Attorney Greg Damm is seeking. The newspaper had written a May 26 article about an ongoing tax evasion trial. The report drew more than 100 comments including some that were highly critical of Damm, according to Mitchell.

The grand jury subpoena requested information including "full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers . . . the IP address" of people who posted on the story, according to Mitchell. The newspaper does not require people to register before commenting, so Mitchell said it doesn’t have much of the information Damm is requesting.

Mitchell also wrote that fighting the subpoena would be costly and likely to fail because there is no federal shield law, so the newspaper’s attorneys are working on limiting the scope of the subpoena.

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Philip Reeker, the acting assistant secretary of state for Europe, leaves the Capitol in Washington after a closed-door interview Saturday about President Trump’s ouster of the U.S. ambassador to Ukraine.

Philip Reeker, a U.S. diplomat who oversees European affairs, told House members he had plans of defending Marie Yovanovitch, the former U.S. ambassador to Ukraine, in the face of a smear campaign against her, but Reeker was overruled by top State Department officials, according to a person familiar with Reeker’s testimony.

In a rare Saturday hearing, Reeker sat for more than eight hours of questions from lawmakers running the impeachment inquiry into President Trump. Reeker appeared under a subpoena issued by House lawmakers, despite being ordered not to cooperate by Trump.

Reeker, a career foreign servicer officer, was named the acting assistant secretary of state in the Bureau of European and Eurasian affairs in March, a few months before Yovanovitch became a political target and was removed from her post.

Just before her ouster, however, Reeker wanted to draft a strongly-worded statement from State Department officials to strike back at the attacks she was enduring in conservative media and by allies of Trump. But that letter was scotched by David Hale, the No. 3 official in the State Department, according to the person familar with Reeker’s testimony.

Yovanovitch was seen by Trump allies as an obstacle to conducting a back-channel foreign policy with Ukraine, including the freezing of nearly $400 million in military aid until Ukraine agreed to investigate Trump’s political rival Joe Biden and his son. Trump has denied any wrongdoing and has called the impeachment inquiry a scam.

Reeker testified he was aware of a plan to freeze the military aid to Ukraine, but he did not know why it was being held up, having no direct knowledge of the alleged quid-pro-quo scheme, the person close to Reeker said.

Ukrainian policy was mostly overseen by Kurt Volker, Trump’s envoy for Ukraine, and Gordon Sondland, the U.S. ambassador to the European Union. Reeker, who had an extensive travel schedule and is the top State Department official for more than 50 countries, was not intimately involved with Ukraine at the time of the controversial call that sparked the impeachment inquiry, the individual with knowledge of Reeker’s testimony said.

Reeker, who joined the State Department in 1992, is celebrated by colleagues as an apolitical professional whose reputation is admired.

“He’s regarded as a straight-arrow professional, not a showboat,” Dan Fried, a former diplomat who retired in the beginning of the Trump administration, told NPR in an interview. “I’ve known him for a long time, and I have no idea what his politics are. He’s completely non-partisan.”

As has been the case with most of the witnesses in the impeachment inquiry, Democrats and Republicans had vastly different take-aways.

Democratic Rep. Stephen Lynch of Massachusetts said Reeker’s questioning lasted much longer than anticipated because it was “a much richer reservoir of information than we originally expected,” but he would not elaborate.

Meanwhile, Republican Rep. Mark Meadows of North Carolina said Reeker’s weekend deposition did nothing to advance the probe.

“Is there an impeachable offense here? Was there some quid pro quo? And now you have another high-ranking State Department official who didn’t provide any support for that allegation,” Meadows said.

Backers of the impeachment inquiry say there are already plenty of witnesses whose testimony creates a sturdy foundation for impeachable offenses.

On Tuesday, Ambassador Bill Taylor delivered explosive testimony to lawmakers in which he described a back-channel foreign policy with Ukraine, being led by Trump’s personal lawyer Rudy Giuliani, where there was allegedly an attempt to tie military assistance to the country to Ukrainian authorities opening an investigation of the Bidens.

Like other State Department officials who have delivered testimony as part of the impeachment inquiry, Reeker was summoned after the House Intelligence Committee subpoenaed him following an attempt by the White House to block his appearance.

A whistleblower complaint, centered on a July 25 call Trump conducted with the president of Ukraine, set in motion the impeachment inquiry being pursued by three House committees. The White House released a partial transcript of the call, where Trump expressly asked the Ukranian president to look into his Democratic rival, Joe Biden, and his son, Hunter, who sat on the board of a Ukranian energy company. Trump also reminded Ukrainian President Volodymyr Zelenskiy that the U.S. sends military funds to the country.

White House Chief of Staff Mick Mulvaney admitted to there being an apparent quid pro quo in a whirlwind press briefing this month, telling reporters that political influence in foreign policy is not unusual. “Get over it,” said Mulvaney, who later tried to mop up the comments, which Democrats said were damaging.

Fried, the former longtime diplomat, said he watched independent institutions and civil servants be sabotaged in communist countries over his career including Yugoslavia in the late-1980s, but “to see it in my own country is horrific,” he said. “I commend those like Reeker standing up against it. It shows their fidelity to their oath of office.”

Clarification Oct. 27, 2019

An earlier version of the story and an earlier headline referred to Marie Yovanovitch as the former Ukrainian ambassador. She is actually the former U.S. ambassador to Ukraine.