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. (1:10cr00485LMB1) Argued: May 18, 2012 Decided: July 19, 2013

Before TRAXLER, Judges.

Chief

Judge,

and

GREGORY

and

DIAZ,

Circuit

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 IIV.

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 MorganPrager, 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.

TRAXLER, Chief Judge: Jeffrey indicted Sterling inter is a former the CIA agent who has been and

for,

alia,

unauthorized

retention

disclosure of national defense information, in violation of the Espionage followed Sterling Act, the 18 U.S.C. jurys 793(d) & (e). The indictment that a

grand

probable

cause

determination

illegally

disclosed

classified

information

about

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 CIAs 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 We

evidentiary rulings that are the subject of this appeal. 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 Irans efforts to acquire or develop nuclear weapons (Classified Program No. 1).

Sterling also served as the case officer for a covert asset (Human program. Asset In No. May 1) who was assisting was the CIA with and this his

2000,

Sterling

reassigned

involvement with Classified Program No. 1 ended. In August 2000, shortly after Sterlings 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 Sterlings In August

complaint and determined that it was without merit.

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 governments invocation of the state secrets doctrine. affirmed the dismissal. 341 (4th Cir. 2005). Sterling was officially terminated from the CIA on January 31, 2002, but he had been outprocessed and effectively removed 6 We

See Sterling v. Tenet, 416 F.3d 338,

from

service was

in

October to

2001. sign a

As

part

of

his

termination, of his

Sterling continuing

asked

final not to

acknowledgment disclose

legal

obligation

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. agency official was cited as a source. J.A. 655. J.A. 655. A former In March

2002, Risen published an article about Sterlings 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 J.A. 156. non-disclosure

secret assignment to recruit Iranians as spies. In January 2002, in accordance with his

agreements with the CIA, Sterling submitted a book proposal and sample chapters of his memoirs to the CIAs Publications Review Board. The Board expressed concerns about Sterlings inclusion

of classified information in the materials he submitted. On January 7, 2003, Sterling contacted the Board and

expressed extreme unhappiness over the Boards edits to his memoirs, and stated that he would be coming at . . . the CIA with everything at his disposal. 7 J.A. 35-36 (internal

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 CIAs 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 Sterlings 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
1

CNNs

website

entitled,

Report:

Iran

has

extremely

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 CIAs 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, dont you think? 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, Security senior Advisor All the more reason to wonder . . . J.A. 37, 726;

administration

officials,

including

National

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. later, Ms. Abramson advised the Several days that the

administration

newspaper would not publish the story. Approximately three months later, Sterling moved from

Virginia to Missouri to live with friends. telephone calls took place between

During this time, 19 New York Times

the

Washington office and Sterlings friends home telephone number. Sterlings 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: Administration The Secret History of the CIA and the Bush of War), in January 2006, which did

(State

disclose the classified information.

J.A. 721.

Specifically,

Chapter 9 of the book, entitled A Rogue Operation, reveals details about Classified Program No. 1. book, Risen entitled the program J.S.A. 219-32. Operation In the and

Merlin

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 in Chapter 9, nor has he indicated

classified

information

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 Sterling December on six 22, 2010, a of federal grand jury indicted and

counts

unauthorized

retention

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). Sterlings 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 Risens

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 moved to quash the subpoena and for a

Risens testimony.

protective order, asserting that he was protected from compelled testimony by the First Amendment or, in the alternative, by a federal common-law reporters privilege. 2

During the grand jury proceedings, two similar subpoenas were issued for Risens 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. Risens motion to quash was granted in part and denied in part. The district court recognized a reporters privilege under the First Amendment. Because Risen had disclosed Sterlings 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 courts 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. about Risen his The subpoena was quashed for Risens testimony and source(s) to his except to the extent that that to a

reporting be

[would] the

required of

provide

testimony subject

authenticates

accuracy

journalism,

protective order.

United States v. Sterling, 818 F. Supp. 2d The district court held that Risen

945, 947 (E.D. Va. 2011).

had a qualified First Amendment reporters privilege that may be invoked when a subpoena either seeks information about

confidential sources or is issued to harass or intimidate the journalist, government three-part claims of id. at 951 (emphasis the added), only and by that meeting the the

could test

overcome that this in

privilege

circuit

established in

for

reporters National

privilege

civil

cases

LaRouche

v.

Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). court held that, the while first the information of the sought

The district was clearly the

relevant

under

prong

LaRouche

test,

Government had failed to demonstrate that the information was

January 19, 2010. On Risens 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 [Sterlings] guilt beyond a [reasonable] doubt. Id. 12

unavailable

from

other

means

and

that

it

had

compelling

interest in presenting it to the jury. In addition to the district courts order quashing Risens trial subpoena, the district court handed down two other The

evidentiary rulings that are the subject of this appeal. district court suppressed the testimony of two

government

witnesses as a sanction for the governments late disclosure of impeachment material under Giglio v. United States, 405 U.S. 150 (1972). to The district court also denied the governments motion from Sterling and the jury, pursuant to the

withhold

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 courts order holding that Risen has a reporters 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 courts order suppressing the testimony of the two Government witnesses (Issue II), and affirm in part and reverse in part the district courts CIPA ruling (Issue III).

13

TRAXLER, Chief Judge, writing for the court on Issue I:

II.

The Reporters Privilege Claim

We begin with the governments appeal of the district court order quashing the trial subpoena issued to Risen on the basis of a First Amendment reporters privilege, and Risens challenge to our jurisdiction to consider this portion of the appeal. A. Jurisdiction

Risen contends that we lack jurisdiction to consider the district courts ruling under 18 U.S.C. 3731, because the

district court stated that the limitations on Risens testimony might be reconsidered under the LaRouche test as the testimony developed at trial. Section United evidence appeal is 3731 of We disagree. provides pretrial for interlocutory appeals or by the

States upon not

orders to the

suppressing district of

excluding that that the the

certification taken for

court and

the

purpose

delay

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 courts ruling, which raises the remote prospect that

suppression will not be ordered, necessarily deprives this court of jurisdiction under section 3731 to hear the governments

appeal.). While it is true that the district court left itself some room in its order to adjust the scope of Risens trial

testimony, it also made clear that it did not expect to revisit its decision that Risen was entitled to assert a reporters

privilege under the First Amendment and could not be compelled to reveal his sources. over the appeal. courts To ruling the than Thus, we hold that we have jurisdiction conclude from otherwise would insulate because the once thus 3731.

district jeopardy

appellate

review

attaches, rather

Government furthering the

cannot

appeal, of

frustrating

purposes

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. v. Hayes, 408 U.S. 665 (1972), the Supreme In Branzburg Court in no In

uncertain terms rejected the existence of such a privilege.

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 of was subpoenaed to testify hashish regarding and his

observations

persons

synthesizing

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

Branzburg was a consolidated proceeding. For ease of reference, we refer to all reporters as the Branzburg reporters. 16

[reporters] resulting

claim

[was]

that

the

burden to

on

news

gathering

from

compelling

[them]

disclose

confidential

information outweigh[ed] any public interest in obtaining the information. Having unequivocally Id. at 681. so defined it. the claim, the Court proceeded to

reject

Noting

the

longstanding

principle

that the public . . . has a right to every mans evidence, except for those persons protected by a constitutional, commonlaw, 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 privileges obstruct [are] disfavor[ed] for . . . and since serve such as

the

search

truth

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 testify Branzburg be adversely about Court impacted if reporters were required However, inappropriate to the in

confidential rejected that

relationships. rationale as

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

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 newsmans 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 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
4

press undertaken not for purposes of law enforcement but to disrupt a reporters 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 As the Court observed nearly

Court has never varied from it. 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 reporters 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], entertain the Court stated that that it could not

seriously

the

notion

the

First

Amendment

protects a newsmans 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 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 journalists 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 reporters privilege). 21
5

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 reporters 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 Whites opinion for the Court in Branzburg, and the fact that Justice Powell joined that opinion, Risen argues that Justice Powells concurring

opinion in Branzburg should instead be interpreted as a tacit endorsement of Justice Stewarts 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 Powells opinion. By his own words, Justice Powell concurred in Justice

Whites 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 Courts 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 STEWARTs 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-bycase basis accords with the tried and traditional way of adjudicating such questions. Id. at 709-10 (Powell, J., concurring)(emphasis added). Justice Powells concurrence expresses no disagreement with the majoritys 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 majoritys 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 dissents 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 Powells concurrence in Branzburg simply does not allow for the recognition of a First Amendment reporters 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 Commcns. v Giovan (In re Grand

24

Jury Proceedings), 810 F.2d 580, 584 (6th Cir. 1987). 6 Branzburg Court considered the arguments we consider

The 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 We are not

and give testimony just as every other citizen must. at liberty to conclude otherwise. 2.

Although Branzburg alone compels us to reject Risens 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 reporters

privilege can be asserted in criminal proceedings. a.

See also Judith Miller, 438 F.3d at 1148 (Justice Powells 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 Whites reasoning on behalf of the majority.); id. (Justice Whites 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 Powells 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 litigants right to compel evidence from a reporter and the First Amendment claim of the press to protect its

newsgathering activities. in this civil met context the

We recognized a reporters privilege that could test only that be the overcome Branzburg if the

litigant

three-part

Court

rejected in the criminal context. district courts, before requiring

Specifically, we held that disclosure of a reporters

source in a civil proceeding, must consider (1) whether the information obtained by is relevant, (2) whether and the (3) information whether there can is be a

alternative

means,

compelling interest in the information. In LaRouche, we followed the

Id. at 1139. of other circuits,

lead

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 reporters 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 reporters privilege in this criminal

proceeding. the

Not only does Branzburg preclude this extension, is critical, such and a our circuit has already

distinction and

considered privilege,

rejected on the

qualified Amendment,

[reporters] against being

grounded

First

compelled to testify in [a] criminal trial. F.2d 850, 851 (4th Cir. 1992) (emphasis added).

In re Shain, 978

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 with See in civil to no v. actions to criminal of 806 the F.2d

proceedings, Branzburg

albeit

little United

discussion Caporale,

opinion.

States

Like the Fifth Circuit, the D.C. Circuit also held that the balancing approach employed [in civil actions] survived the Supreme Courts 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. followed Branzburg and or held bad that that faith, of any to a absent the Instead, we evidence have not of no to

governmental privilege testify Shain, Justice

harassment

reporters citizen

different

from

other

about 978

knowledge at 852.

relevant We

criminal

prosecution. the effect of

F.2d

also

considered in

Powells

concurring

opinion

Branzburg,

explaining

that Justice Powell joined in the Courts opinion and wrote separately only to emphasize the Courts 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. 282, 287 (4th Cir. See Ashcraft v. Conoco, Inc., 218 F.3d (applying the LaRouche test to

2000)

confidential source information in the civil context, but noting Branzburgs citizen, holding that to [a] reporter, jury like [an] and ordinary answer

must

respond

grand

subpoenas

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. subsequently observed as well:

As the Court has

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 mans 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. 408 U.S. at 709. Branzburg,

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 Risens testimony was See

not issued in bad faith or for the purposes of harassment. 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. the Id. at 709 (internal quotation marks omitted). government seeks to compel evidence that Risen Rather, alone

possesses -- evidence that goes to the heart of the prosecution. The controlling majority opinion in Branzburg and our

decision in Shain preclude Risens claim to a First Amendment reporters legitimate, privilege good that would permit issued him to to him. resist The the only

faith

subpoena

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. we reverse the district courts decision Accordingly, Risen a

granting

qualified First Amendment reporters 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 reporters 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 The district court, having recognized a First Amendment reporters privilege, did not address Risens claim to a commonlaw privilege. See Sterling, 818 F. Supp. 2d at 951 n.3. 32
8

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 reporters privilege for confidential sources, whether by virtue of the First Amendment or a newly hewn commonlaw privilege). B. Risen does not take issue with the clarity of Branzburgs 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 privilege. to reconsider the question and now grant the

We disagree.

Federal Rule of Evidence 501, in its current form, provides that: [t]he common courts in the a claim of Constitution, prescribed by law as interpreted by United States light of reason and experience governs privilege unless [the United States a federal statute, or the rules 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 commonlaw 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 Courts] 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. omitted) (1933)). Indeed, failed to Rule 501 seems for to be it more did. notable The for what it (quoting Funk v. Jaffee, 518 U.S. at 8 (footnote States, 290 U.S. 371, 383

United

do,

than

what

proposed

Rules

originally defined [nine] specific nonconstitutional privileges which the federal (i.e. courts [would have been compelled to]

recognize

required

reports,

lawyer-client, to

psychotherapist-patient,

husband-wife,

communications

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 committees note; see also 34

Jaffee, 518 U.S. at 8 n.7

This exclusive list of enumerated Instead, Congress left the

privileges was ultimately rejected.

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. R. Evid. 501 advisory committees 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 Fed.

privileges proposed for inclusion in Rule 501 were thought to be either indelibly ensconced in our common law or an imperative of federalism. (1980) (declining for in United States v. Gillock, 445 U.S. 360, 368 to recognize under in was by Rule a not 501 a legislative criminal the nine

privilege

state part,

legislators because it

federal, one of

prosecution, enumerated

privileges

recommended

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 Courts 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 psychotherapistpatient privilege protecting private communications that took

place during counseling sessions between a police officer and a 35

licensed

clinical

social

worker

following

fatal

shooting.

Applying Rule 501, the Court weighed the competing interests and concluded that the plaintiffs interest in obtaining evidence of the confidential communications in the ensuing excessive-force action was outweighed by the patients private interest in

maintaining confidence and trust with his mental health provider and the publics interest in protecting that privacy in order to facilitat[e] individuals problem. the provision the of appropriate of a mental treatment or for

suffering Id. at 11.

effects

emotional

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 Risens claim on appeal, Rule 501 and the

Supreme Courts 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. (We discern nothing in See In re Scarce, 5 F.3d at 403 n.3 the text of Rule 501 . . . that

36

sanctions

the

creation

of

privileges

by

federal

courts

in

contradiction of the Supreme Courts 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). new Rule 501 thus leaves the door open for courts to adopt privileges, and modify existing ones, in

common-law

Risens 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 Winters undeveloped dicta has no effect one way or the other on the First Amendment or common-law issues before us today. 37

appropriate cases. history authorizes

But nothing in Rule 501 or its legislative 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 reporters privilege today, we are not at liberty to take that critical Express, step. Inc., 490 See U.S. Rodriguez 477, 484 de Quijas (If v. a

Shearson/Am.

(1989)

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.). and Jaffee, inferior federal

Under Risens view of Rule 501 would be at liberty to

courts

reconsider common-law privileges that have been rejected by the Supreme Court, based upon the passage of time. not sanction such authority on our part. Here, [t]he Supreme Court has rejected a common law Rule 501 does

privilege for reporters and that rejection stands unless and until the Supreme Judith court Miller, itself 438 overrules at 1155 that part of J.,

Branzburg. concurring).

F.3d

(Sentelle,

Just as the Supreme Court must determine whether a

First Amendment reporters privilege should exist, see Judith Miller, 438 U.S. at 1166 (Tatel, 38 J., concurring), only the

[Supreme argument

Court] that

and a

not

this

one

may

act

upon

th[e] be J.,

federal Rule

common-law id. at

privilege 1155 n.3

should

now

recognized

under

501,

(Sentelle,

concurring). C. Even if we were at liberty to reconsider the existence of a common-law reporters 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 mans 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. 148 F.3d at 391 (quoting Trammel, 445 U.S. at 50).

Dunford,

Risen contends that the public and private interests in recognizing a reporters privilege are surely as great as the significant public interest at stake in patient and

psychotherapist communication. see several critical distinctions. 1.

Risens Brief at 50.

But we

First, unlike in the case of the spousal, attorney-client, and psychotherapist-patient the reporter-source privacy privileges privilege or that does not have share been the The

recognized, same

relational

interests

ultimate

goal.

recognized privileges promote the publics interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications. Jaffee, promote source, 518 free but U.S. and at 10. A reporters between to privilege a might and also his

full

discussion not

reporter from

Risen

does

seek

protect

public Id.

disclosure the confidential communications made to him.

Risen published information conveyed to him by his source or sources. person or His primary goal is to protect the identity of the persons who communicated 40 with him because their

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 his privilege, sources Risens proffered in the rationale with law for the and

protecting privileges

shares

little in

common common

historically

recognized

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 reporters privilege was necessary to prevent a chilling effect on newsgathering. We are admonished that refusal to provide a First Amendment reporters 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 This important distinction was also not lost on the Branzburg dissent. In the context of advocating a First Amendment reporters 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
10

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 publics 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; that see an also id. at 695 (Accepting of the fact, not

however,

undetermined

number

informants

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 Indeed, even those commonconfidential communications

of protection under the common law. law privileges that do protect

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 attorney-client privilege must necessarily

(1989) (The 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, 43 but to future wrongdoing)

(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 attorneyclient 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. Risens reliance upon state statutes and decisions that

have adopted a reporters 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] Id.

provided newsmen a statutory privilege of varying breadth. at 689. states

And, as Risen argues, nearly all of the remaining have since recognized a 44 reporters privilege in one

context or another. such policy

Risens Brief at 55. of the States

Generally speaking, on the question

decisions

bear

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 reporters 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 Branzburgs 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 newsmans 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 reporters privilege to withhold

relevant information from a bona fide grand jury (citation and internal quotation marks omitted)). The Branzburg Courts observations regarding the practical difficulties of defining and managing a reporters 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. have 501. Since Branzburg, additional within state First

legislatures

exercised

their

free[dom],

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 reporters 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

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 citizens duty to do so, we believe that decision should rest with the Supreme Court, which can revisit or with Branzburg Congress, the and which the can policy more arguments it and

rejected,

effectively for and

comprehensively

weigh

policy

arguments

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 governments subpoena and give what evidence he has of the criminal conduct at issue. however, that even if we were to recognize a We note, qualified

reporters 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 reporters 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. three prongs.

Here, the government has met all

A. There is no dispute that the information sought from Risen is relevant. means. government inconclusive witnesses Moreover, it can[not] be obtained by alternative The circumstantial evidence that the able and to from or glean the from hearsay incomplete statements of and of the

Id. at 1139. has been

documents, no

with

personal

first-hand

knowledge

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 substitute evidence for a of guilt should serve as of an the

adequate crime than

direct,

first-hand is F. no

account less

because direct

circumstantial

evidence 818

probative 2d at 956

evidence.

Sterling,

Supp.

(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 courts 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. evidence is very different. (Kenneth evidence S. Broun if ed., 7th The nature and strength of the See 1 McCormick on Evidence 185 ed. 2013) (Direct a matter evidence in is

which,

believed,

resolves

issue.

Circumstantial evidence also may be testimonial, but even if the 49

circumstances reasoning is

depicted required

are to

accepted reach the

as

true,

additional conclusion.

desired

(footnote omitted)). As the government correctly points out, no circumstantial evidence, or combination thereof, is as probative as Risens testimony or as certain to foreclose the possibility of

reasonable doubt.

Governments 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 reporters] testimony . . . could settle the matter). the crime. alleged Risen is the only eyewitness to Without him, the he was the And

He is inextricably involved in it. would not have occurred,

crime

since

recipient of illegally-disclosed, classified information.

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 added). means. LaRouche, 780 F.2d at 1139 (emphasis

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 to it not -possess the strength when the one district remembers court the

ascribes

particularly

prosecutions 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 Risen. 11 During these proceedings, Sterling has often represented of classified information that made its way to

that he intends to point his finger at these third parties as the source of the leak. 12 The district courts 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

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). 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 Sterlings contact with the Senate staffers and Risens 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
12

11

criminal consequences of their behavior. of the only direct testimony that can

By depriving the jury 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 reporters privilege, also fail to serve as reasonable alternatives to

Risens 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. proof is an obviously poor substitute for

This category of Risens direct

testimony. J.,

See e.g., Judith Miller, 438 F.3d at 1175 (Tatel, (Insofar neither leaks as the confidential nor be exchange gun, of the

concurring)

information great

leaves of

paper will 53

trail

smoking unprovable

majority

likely

without

evidence cases,

from

either

leaker

or

leakee. such as

Of

course,

in

some may

circumstantial

evidence

telephone

records

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 Sterlings then-girlfriend also pales in comparison to

Risens 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 Risens testimony. It is represented to us that Sterlings 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 Risens testimony. Additionally, Sterling has indicated that he will offer

another defense to this hearsay testimony, either through crossexamination 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. or not Sterling can persuade the jury J.A. 863. on this Whether the

point,

argument is not a lost one. simply cannot testify that

Unlike Risen, the former CIA agent he knows Sterling to be Risens

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. even if we were to recognize a reporters

Accordingly,

privilege that could deprive a jury of the only direct, firsthand evidence of guilt or innocence, Risens 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 to promise proceedings, but would to those time also permit in

journalists ongoing

confidentiality while at the

engaged

criminal

conduct,

same

disclosing

their identities to anyone except law enforcement, grand juries investigating the crimes, and juries called upon to determine innocence or guilt. Clearly, Risens 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. from Risen is not reasonably or The information sought 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 Risens 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 security that Sterling by compromised disclosing these critical nationalin

interests

classified

information

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.

Risens testimony is the best evidence to prove Sterlings 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 Sterlings 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 Risens book was not, in fact, national defense information at all. or additional sources of And should Risen identify different 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 reporters privilege. Defendant-Appellees Brief at 5.

Sterling has, however, seized upon the governments unsuccessful attempts to compel Risens 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 Risens testimony, that establishes where the substantive disclosures of classified information occurred . . . . In short, the Government is so fixated on compelling

Mr. Risens 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)). evidence Hardly a better argument could be made as to why the 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 courts order granting Risens motion to quash his trial subpoena and denying the governments 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 Courts Suppression Order The Government challenges the district courts order

excluding two of its witnesses as a sanction for violating a discovery order. district court The discovery order at issue, entered by the 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. was initially slated to begin on September 12, 2011. in early July 2011, Sterling and the Government The trial However, a

requested

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 CIAs files, and at the eleventh hour it discovered impeachment materials in the personnel files of six of its witnesses.
13

Due to the risk of

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 CIAs 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, 2011the 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 objectingat which point, defense counsel lodged an objection. remedy, the defense but stated the that In addressing a possible could option grant would a brief be

court this

continuance,

observed

not

particularly palatable to the court. that the court could sanction the

The defense then stated Government by striking a

witness.

At that point the district court decided to strike two J.C.A. 577.

witnesses, to even up the playing field.

The Government objected to the courts order arguing that the delay in production was not in bad faith. 61 As an alternative

sanction for the delay, the Government suggested that the court grant a continuance three and offered to assist the defense of a in CIA

locating

people

whose

unfavorable

ratings

colleague comprised a portion of the Giglio material as to that colleague. The court asked the defense about its schedule,

seeking to determine whether counsels other obligations would accommodate a brief continuance. struck two crucial prosecution However, the court had already witnesses, and the defense

preferred this sanction to a continuance. court subsequently found the Government

Thus, although the did not act in bad

faith, it maintained its decision to strike the two witnesses. We have jurisdiction over the Governments 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. F.3d 726, 734-35 (4th Cir. 2011).

United States v. Higgs, 663 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). produce The government breaches its duty if it fails to that it is obligated to turn over to the

evidence

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 Strickler in v. that its suppression U.S. 263, prejudiced 281-82 the defendant. Vinson v.

Greene,

527

(1999);

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 Kyles result v. of the proceeding 514 U.S. would have been

different.

Whitley,

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 governments contumacious conduct involves a delay in producing discovery, the rather than a failure is to turn over the

required

materials,

relevant

inquiry

whether

defendants counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendants case. 411-12 (1st Cir. United States v. Ingraldi, 793 F.2d 408, 1986). As long as evidence is disclosed

before it is too late for the defendant to make effective use of it, there is 971 of no due process 1112 violation. (4th Cir. United 1992) States v.

Russell, allegation

F.2d

1098, in

(discussing evidence in

delay

producing

exculpatory

violation of Brady). 63

The

district

court

is

permitted,

but

not

required,

to

impose sanctions upon the governments failure to timely comply with a discovery order. Fed. R. Crim. P. 16(d)(2); see United If the court

States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001). 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; grant a continuance; prohibit that party undisclosed evidence; or enter any other circumstances. order from that is introducing just under the the

(B) (C) (D)

Fed. R. Crim. P. 16(d)(2). sanction.

A continuance is the preferred

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 material, the the government district fails to timely provide of Giglio to

courts

determination

whether

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 64 legal premises. L.J. v.

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 errorsuch as improperly determining whether there was a Brady violationand that underlying legal determination is

reviewed de novo.). In fashioning a remedy for a Giglio violation, the district court must consider delay, several and factors: whether the the reason for the acted

governments

government

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). 65 Indeed, it would be a rare

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. materials, along with It is clear that the sheer volume of the was inherent genesis factor, delays of of the involved in

classification error. The

review, other

the

Governments was the

contributing

course,

Governments 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

Governments 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. decision. Sterling suggests that because the material was not However, other factors guide our

submitted by the discovery deadline, he could not possibly have fully investigated prior to and the developed start of the belatedly-disclosed three to four days

evidence

trial,

66

later. 14

(Appellee Sterlings br. at 6).

Although we do not

take lightly the impact of the Governments delay on Sterlings 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 at earlier in the and have the

discovery disclosure

process. of the the

Although relevant and

efforts

earlier files have

review might eased

personnel

ameliorated

error,

would

certainly

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).

14

67

defenses

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 Governments one-day delay in productionnot 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. that Sterling would not have Nothing in the record suggests been able to make use of the

impeachment evidence if given a continuance. F.2d at 1249-50. We discern no

See Golyansky, 291 for the more

justification

severe sanction of striking witnesses.

Accordingly, we reverse

the district courts 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. 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 The list of protected information

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 Governments 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. 69 The

court stated that no sketch artists would be permitted in the courtroom, but denied the Governments request for the witnesses to testify from behind a screen. 15 reconsideration needed more of this ruling, than was The Government moved for that by the the witnesses district

stating

protection

permitted

courts prior ruling. the use of a portable

Specifically, the Government argued for screen between the witnesses and the

public, 16 or permitting the witnesses to testify wearing light disguises. Sterling opposed the Governments motion for

reconsideration, stating that the Government had offered no new information ruling. justifying also reconsideration contended that of the the courts prior

Sterling

security

measures

proposed by the Government would infringe upon Sterlings right to a public trial and to confront the witnesses against him. contended suggestive that of the the use of screens of or disguises defense was He

unduly

existence

national

information,

problematic because one of his planned defenses was that the information in Risens book was not, in fact, national defense information. Although Sterling expressed frustration with the

security measures previously imposed by the court, he did not The court ordered that another witness, Human Asset No. 1, would be permitted to testify behind a screen. The screen would shield the witnesses from public view; Sterling, his counsel, and the jury would be able to see the witnesses. 70
16 15

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 could use pseudonyms while And although the witnesses the Government was

testifying,

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: Sterling has permitting the screen.
18 17

not

cross-appealed

as

to

the

order

The record reflects no legally significant change in circumstances between the courts initial order permitting the name substitutions and its later order denying substitutions. In the hearing on the Governments 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. we turn to CIPA. A. CIPA provides a framework for determining how to proceed with discovery and admissibility of classified information in criminal cases. 281-82 (4th See United States v. Moussaoui, 591 F.3d 253, 2010). in a It fair was designed and to the balance the Thus,

Cir.

defendants

interest

trial

governments United When the

interest in protecting national security information. States v. Passaro, 577 F.3d 207, 219 (4th Cir. 2009). classified information may come into play at

trial,

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. 3, 6(a). 18 U.S.C. app.

The district courts 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 runof-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 information discovery CIPA was of only at trial, rather than the defendants Thus, and in we that

classified pretrial concluded,

classified applicable

information. by analogy,

instance CIPA 7 did not authorize an interlocutory appeal. Following government Moussaoui, we considered a case in which trial, the and

introduced

classified

information

at

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 from Abu posture Ali; Abu of Ali this was case an is, appeal of course, following

different

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 at issue authorizes the disclosure in of classified which

information

trial,

unlike

order

Moussaoui,

involved the defendants 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 courts order, we turn to the merits, reviewing for abuse of discretion. F.3d at 253-54 (applying abuse of discretion Abu Ali, 528 standard, but

striking a balance between the defendants Confrontation Clause

74

rights

and

the

governments

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, See, e.g.,

and always has been, subject to rigorous protection.

In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006). if not to To disclose the identities of CIA operatives, even 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 defendants rights under the Confrontation Clause to identifying information about witnesses is not absolute; if the government shows an actual threat, the district court has is discretion possible to if determine the whether effective is

cross-examination concealed). We find no

witnesss

identity

abuse

of

discretion

in

the

district

courts

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 75 could impinge on his

Confrontation Clause rights. 497 U.S. 836, 848-49 (1990).

See generally Maryland v. Craig, 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 jurys 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 namesand, for that matter, the other classified information presented at trial. disclosing operatives Unlike to at the information though, will do the Sterling true to is names enhance charged of the with CIA

Risen, issue

nothing

the

jurys

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 courts 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. clear that it will instruct the The district court has made jury that Sterlings guilt

cannot be inferred from the use of security measures in the courtroom. Balancing Sterlings 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. we reverse this portion of the district courts order. Thus, 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 courts exclusion of two Government witnesses, and affirm in part and reverse in part the courts ruling pursuant to CIPA. proceedings consistent with this opinion. We remand for further

78

TRAXLER, Chief Judge, concurring in part and dissenting in part as to Issues II and III: I concur in the majoritys decision as to Issue II, which reverses the district courts order striking two of the

governments witnesses as a sanction for violating the discovery order. the With regard to Issue III, I concur in the reversal of courts order requiring disclosure of the

district

identities of the covert CIA agents and operatives (the CIA witnesses) to the jury. I respectfully dissent, however, from

the majoritys decision to affirm the district courts 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 publics 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. terrorist identifying organizations CIA agents

Additionally, foreign intelligence and have and a significant and use interest in

operatives,

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 courts ruling as Because disclosure of the personal

to the jury, but affirms as to Sterling. the identities of the CIA witnesses

endangers

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 witnesss true name, address, or 80

place of employment, it bears the burden of demonstrating that the threat to the Id. witness (internal is actual and not a result of

conjecture. omitted).

quotation

marks

and

alteration

Once the government meets this burden, the court must

review relevant information and determine whether disclosure of the witnesss 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 Governments 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, should C.I.A. v. Sims, 471 U.S. 159, 175 (1985), and

courts [their]

exercise

particular id.

caution at

before

order[ing] the

identit[ies]

revealed,

176.

Protecting

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 behaviors intolerable consequences: 81 [t]he

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 force increased risk of harm and which sources continuing to disclosures In re

intelligence

officers

endure.

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. Accordingly, we unanimously conclude that

Majority op. at 75. the district court

abused its discretion in requiring disclosure of the identifying information to the jury. I depart from the majoritys 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 of serious [the and clear need to of protect concerns the for true their

identities safety and

witnesses]

because

the

defendants

adequate 83

opportunity

to

conduct

effective M.J.

cross-examination); 410 (C.M.A.

United

States

v.

Lonetree,

35

396,

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 Given the dangers involved, the

to find an abuse of discretion.

district court should have granted the governments motion to withhold because disclosure there had of been the no witnesses showing identifying the information was

that

disclosure

necessary to allow effective cross-examination. 667 F.3d at 500.

Ramos-Cruz,

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: cross-examination. concludes only that J.C.A. Hey, ask him about such-and-such on at 487. to The disclose majority the similarly

failure

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 interview by their pseudonyms, cables, and including other prior statements, Sterling

reports,

documents.

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 courts order requiring disclosure of the

identities of the CIA witnesses to Sterling as well.

85

GREGORY, Circuit Judge, dissenting as to Issue I: Today ensuring oversight we the of consider informed their the importance debate of a free to press in

public

critical elected

citizens

democratically

representatives.

Undoubtedly, the revelation of some government secrets is too damaging to our countrys national security to warrant

protection by evidentiary privilege.

Yet the trial by press of

secret government actions can expose misguided policies, poor planning, press is and an worse. More importantly, part of a a free and of vigorous

indispensable Our countrys

system

democratic the First

government.

Founders

established

Amendments guarantee of a free press as a recognition that a government unaccountable to public discourse renders that The

essential element of democracy the vote meaningless.

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. district courts legal determination

We review de novo the that the reporters

privilege exists in the criminal context, and we examine the district courts application of that privilege to the instant 86

facts under a deferential abuse-of-discretion standard. 1

Church

of Scientology Intl v. Daniels, 992 F.2d 1329, 1334 (4th Cir. 1993); LaRouche v. Natl Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986). A. The freedom of the press is one of our Constitutions 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 alike. by uncovering wrongdoing by business and government

Democracy without information about the activities of The press provides a

the government is hardly a democracy.

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

citizens right to vote, our most basic democratic principle, is rendered meaningless if the ruling government is not subjected to a free presss organized, expert scrutiny of government.

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 ensure a protection free and of confidential press, sources is necessary an open to and

vital

without

which

democratic society would be impossible to maintain. v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir.

Ashcraft If

2000).

reporters are compelled to divulge their confidential sources, the free flow of newsworthy information would be restrained and the publics 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 reporters

privilege . . . is not absolute and will be overcome whenever societys outweighs interests. need the for the confidential on the information in question Amendment

intrusion

reporters

First

Ashcraft, 218 F.3d at 287.

And we must be mindful

of the fundamental maxim that the public . . . has a right to

88

every mans 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 debate critical on information American element of held by our government. But methods public is a

military public

and

intelligence of

oversight

our

government.

Protecting the reporters 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 reporters need for keeping sources confidential is not hypothetical. The record on appeal contains affidavits

proffered by Risen detailing the integral role of confidential sources executive Washington in the newsgathering of the process. Scott Trust Armstrong, and in former which

director Post

Information points to

reporter,

three

ways

investigative journalism uses confidential sources: factual accounts and documentation 89 unknown to

developing the public,

tak[ing] produc[ing]

mix an

of

known

facts

and

new

information to

and the

interpretation

previously

unavailable

public, and publiciz[ing] information developed in government investigations that has not been known to the public and might well be suppressed. Joint Appx (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. enable J.A. to 350. discuss Such guarantees of

confidentiality

sources

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 they are government published, pronouncements and this is must be verified done before through

frequently

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 reporters development of major stories critical to informing the public of 90

the governments 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 Committees offices in the Watergate Hotel and Office Building that led to the resignation of President Nixon would never have been possible. and absolute confidentiality J.A. 362. was J.A. 361-62. for Total to

essential

Bernstein

cultivate the source.

For all that the record establishes, common sense tells us the value of the reporters privilege to journalism is one of the highest order. 714 (3d Cir. See Riley v. City of Chester, 612 F.2d 708, 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.). of

Indeed, reporters depend[] upon an atmosphere and trust to carry out their mission, a

confidentiality

91

mission

critical

to

an

informed

and

functioning

democracy.

Jaffee, 518 U.S. at 10. B. Any consideration of the reporters 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. majority opinion Branzburg v. Hayes, 408 U.S. 665 (1972). highlighted the longstanding principle The that

the public . . . has a right to every mans evidence, except for those persons protected by a constitutional, common law, or statutory opinion privilege. stated Id. that at 688 (citations is omitted). not without The its

also

news

gathering

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 Amendments protection of reporters. Id. at 707-08.

Further complicating matters is Justice Powells 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 Courts 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 92

the

investigation, of the

then

courts

should on a

consider

the

applicability

reporters

privilege

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 Powells concurrence continues to be debated. a plurality Some analogize the Branzburg majority opinion to and therefore assert Justice Powells See In re

opinion,

concurrence as the narrowest opinion is controlling.

Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1148 (D.C. Cir. 2006) (describing appellants argument that in a five-tofour 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 the narrow more what the majority opinion holds, by by a

explaining

limited

interpretation

adopted

necessary member of that majority) (Scalia, J., dissenting). Others, like my good friends in the majority, treat Justice

Powells 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 hewed this to confusion, Justice appellate Powells courts have subsequently and Justice

closer

concurrence

Stewarts dissent than to the majority opinion, and a number of courts have since recognized a qualified reporters See,

privilege, often utilizing a three-part balancing test.

e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (applying the reporters 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 reporters privilege in a civil case). mere five years after Branzburg, that was no the a federal court of a

Indeed, a of appeals

confidently reporters

asserted privilege

existence in

qualified v.

longer

doubt.

Silkwood

Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). Justice Powells concurrence and the subsequent

In short, appellate

history have made the lessons of Branzburg about as clear as mud. The Fourth Circuit, like our sister circuits, has applied Justice Powells balancing test in analyzing whether to apply a reporters privilege to quash subpoenas seeking confidential

source information from reporters. 94

We first explicitly adopted

Justice Powells 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). reporters privilege Then in LaRouche, we applied the to a civil case, again citing 780

doctrine

Justice Powells concurrence in Branzburg for authority. 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 reporters privilege should be applied; that is, we considered (1) whether the information is relevant, alternative interest in (2) whether and the (3) information whether can be is a obtained by

means, the

there Id.

compelling Miller v.

information.

(citing

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 LaRouches motion to compel discovery of a reporters 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 reporters

privilege to protect information gleaned from interviews with a state legislator. 978 F.2d 850, 851-52 (4th Cir. 1992). But

applying Justice Powells principles, we rejected the reporters 95

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 reporters 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 reporters privilege attaches in criminal proceedings given the right circumstances. The most recent federal appellate court decision to address the reporters 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 reporters 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 reporters privilege under the First Amendment after Branzburg, and that Justice Powells concurrence did not detract from the precedential was no weight First was no of the majoritys reporters that means the of

conclusion privilege, reporter

that at was

there

Amendment suggestion as a

least being

when

there for

pressed

information

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 reporters 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. J., concurring). And although he felt Id. at 1166 (Tatel, 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 reporters 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: to Are there circumstances in which a reporter may refuse as to the identity of one of his confidential

testify

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 reporters 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

clear is

and

specific

showing and

that

the

subpoenaed or

information

highly

material

relevant,

necessary

critical to the maintenance of the claim, and not obtainable from other available sources. Burke, 700 F.2d at 77 (internal Cf. 28 C.F.R. 50.10

citations and quotation marks omitted).

(policy in regards to the issuance of subpoenas to members of the news media). I, too, would recognize a qualified reporters privilege in the criminal context, and evaluate in the privilege as an using to the help

three-part

test

enunciated

LaRouche

aid

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 of the two reporters additional privilege, factors: I the would harm

require

consideration

caused by the public dissemination of the information, and the newsworthiness of the information conveyed. 2 Cf. id. at 1139

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 reporters 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 by the the public harm interest leak in compelling against disclosure, the public

measured

the

caused,

interest in newsgathering, measured by the leaked informations value). Thus, even when the LaRouche test favors recognizing

the reporters privilege, in matters of national security this privilege interests. can still be overridden by pressing government

It is important to note that such a test does not

depart from established precedent, to the contrary, it adheres to Justice Powells 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. concurring). D. Whatever the limits of who may claim reporters privilege, it is clear that Risen a full-time reporter for a national 408 U.S. at 710 (Powell, J.,

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 nations 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. also note that Risen has been offered immunity by I 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 reporters 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 Risens testimony to the Governments case. the Branzburg case, where the reporters had Unlike of

knowledge

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 Risens

testimony is valuable to its case against Sterling for revealing national defense secrets for two reasons: and supporting to the the Governments the case on establishing venue the merits. the With of

respect

former,

Government

bears

burden

proving by a preponderance of the evidence that the essential conduct elements of the charged offenses occurred within the 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 jurys resolution of disputed factual issues at trial. 100
3

Eastern District of Virginia. F.3d 517, 524 (4th Cir.

United States v. Ebersole, 411 (internal quotation marks

2005)

omitted). The record suggests the Government can show that Risen made phone calls from the Eastern District of Virginia to Sterlings Missouri residence. Furthermore, emails exchanged with Sterling Of

used a server located in the Eastern District of Virginia.

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 Risens testimony to the Governments case-in-chief, the circumstantial evidence that classified

information was discussed appears to be strong, 4 indicating that Risens 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 In determining the relevance of the evidence sought to be protected by the reporters 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.
4

101

available testimony

by is a

other

means, part

the of

Government its case

claims against

Risens Sterling

critical

largely because Risen is the only eyewitness to the crime; the other evidence of is its circumstantial. 5 good-faith effort The to Governments similar

demonstration

obtain

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 reporters privilege demonstrate that he has made an effort to obtain 633 the F.2d information at 358-59). from But other it is sources) precisely

(quoting

Criden,

because of the Governments diligence that it doth protest too much. An analysis of the circumstantial evidence shows the

Governments case is not as weak as it or the majority claims, limiting the need for Risens testimony.

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 reporters 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 sources 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 reporters 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 reporters privilege covers the records). 102

First, the Government can demonstrate that Sterling showed Risens book to Sterlings 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 details about Classified Program No. The book itself reveals 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 Sterlings responsibility and the Government meetings asserts at which that the chapter was the describes only two

classified attendee.

Sterling

common

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. also has evidence that Sterling attempted to The Government 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 The Government suggests that the bookstore witness is now (or was for a time) Sterlings 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 courts purview the ability to decide whether the testimony could properly be admitted. 103
6

get together in early January?

J.A. 40.

In another, Risen Im trying to write J.A.

tells Sterling I want to call you today[.] the story . . . . 40.

I need your telephone number again.

Risen sent another email to Sterling, this time stating

Im 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 Timess refusal to publish Risens story on Classified Program No. 1. Third, testimony the of a prosecution former expects to elicit at trial the

United

States

intelligence

official.

Risen allegedly told this official, who occasionally discussed Risens reporting with him, that Sterling was involved in

recruiting a source for an important operation that targeted [] the Iranian by the nuclear program, lack of and that Sterling he was

frustrated

perceived

recognition

received

within the CIA for his efforts. 622, 624-25.

Joint Classified Appx (J.C.A.)

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: Risens March 2002 New York Times article entitled Fired by the C.I.A., provided He Says Agency one Practiced of Bias noted that Sterling

Risen

with

Sterlings 104

classified

performance

evaluations.

In

short,

the

Government

has

made

[a]ll

reasonable attempts . . . to obtain information from alternative sources as recommended by the Department of Justices internal guidelines on subpoenas for testimony by news media, see 28

C.F.R. 50.10.

The Governments efforts have yielded multiple

evidentiary avenues that, when presented together, may be used to establish what the Government sought to establish solely with testimony information, from Risenthat Sterling leaked classified his

rendering

Risens

testimony

regarding

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 prosecutions body of evidence without Risens 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 courts venue.

While Sterling may argue that

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 Risens claim of reporters privilege. 105

other

staff

members could

who

had

access the

to

national of the

security leak, the

information

have

been

source

Government, as it acknowledges, may simply call to the stand those staff members to ask whether they were Risens source. While the prosecution would undoubtedly be better off with Risens 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 Risens 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 Risens book, coupled with the limited universe of individuals who had access to the information, the circumstantial evidence, and proof by negative implication, Government. compose a reasonably strong case for the

As we have stated before, circumstantial evidence Stamper v. Muncie,

is no less probative than direct evidence. 944 F.2d 170, 174 (4th Cir. 1991).

I would therefore conclude

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 Risens 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 Risens testimony. 4. Satisfied Risens sources, that the from next LaRouche factors as weigh his in favor of

privilege I turn

testifying to

to

confidential the two

newsworthiness

and

harm,

additional factors I suggest should apply in a case involving national security of information. the leaked On the present record, to the be

newsworthiness substantial.

information

appears

The information contained in chapter nine of State

of War covers the United States intelligence communitys efforts concerning the development of the Iranian nuclear program. chapter questions the competence of the CIAs management The of

Classified Program No. 1. a former Russian

Chapter nine discusses a plan to have give Iranian officials incorrect

scientist

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. blueprints were so deficient, the chapter opines, that The 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, good from Iranian the scientists in the could likely differentiate In the

flawed

American

blueprints.

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 CIAs inability to obtain more than fragmentary information about Irans nuclear program. This information is not extraneous. portends to inform the reader of J.S.A. 208. Quite the opposite, it a blundered American

intelligence mission in Iran.

Since the United States invasion

of Iraq in 2003, our nations 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 The Iraq invasion was

three years after the Iraq invasion.

undertaken in part based on concerns that Iraq had developed weapons weaponry. destruction of mass destruction, possibly including nuclear

See J.S.A. 182. in Iraq, it

The apparent lack of weapons of mass has 108 been argued, highlights a

significant failure of United States intelligence. 381.

See J.A.

Risen himself contributed to our understanding of this See James Risen, C.I.A. Held Back Iraqi Arms

alleged failure.

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, Risens 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 Iran: Intelligence Nuclear Council, Intentions National and Intelligence (Nov.

Estimate, 2007),

Capabilities

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 See

conflict with Iran has repeatedly surfaced in recent years.

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 Americas suggesting a most that highly the classified States the intelligence could one be in

assessments, danger of

United to

repeating

mistake

similar

made

with

109

Saddam Husseins Iraq eight years ago allowing anxieties about the policies of a tyrannical regime to distort our estimations of the states military capabilities and intentions.). Risens

reporting on Irans nuclear capabilities is also particularly relevant perceived given the criticism to of the national press for its

failure

scrutinize

United

States

intelligence

regarding Iraqs 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

The district court declined to consider newsworthiness as a factor in its ruling on reporters 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 courts 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).

110

information against the harm caused by the leak. 10 record is not well developed on this point.

The present

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.
10

Moreover, although I recognize the

I would find a reporters 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. 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. 111
11

difficultly of evaluating the governments 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 With

1057, 1081 (4th Cir. 1988) (Wilkinson, J., concurring).

all things considered, the district court was correct in holding that Risen was protected from disclosing his confidential

sources by a First Amendment reporters privilege. I find it sad that the majority departs from Justice

Powells Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for of reporters. the Ante 25. Under or the lack majoritys thereof,

articulation

reporters

privilege,

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 In sum, Risens albeit two

counteract the very result the majority reaches today. I would affirm of a the First district courts ruling as to

assertion using the

Amendment LaRouche 112

reporters test and

privilege, balancing

three-part

the

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 reporters sources pursuant to Federal Rule of Evidence 501. 12 Rule 501 was promulgated three years after the Supreme Courts decision in Branzburg. (1975). The Rule See Pub. L. No. 93-595, 88 Stat. 1926 federal courts to create new

authorizes

evidentiary privileges using the common law . . . in the light of reason and experience. not freeze the law Fed. R. Evid. 501. the privileges of The Rule did witnesses in

governing

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)). to the By adopting Rule 501, Congress has given authority to use case-by-case adjudication to find new

courts

evidentiary privileges.
12

United States v. Weber Aircraft Corp.,

To be sure, the district court ruled that the reporters 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). 113

465 U.S. 792, 803 n.25 (1984) (Rule 501 was adopted precisely because courts Congress rather wished to leave to privilege questions In to the of

than

attempt

codify

them.).

light

Branzburgs insistence that Congress has freedom to determine whether a statutory newsmans 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 reporters 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. Jaffee, 518 U.S. at 15 (recognizing See, e.g.,

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

reporters privilege).

All of these privileges are distinctly

exceptional, and have only been recognized because they serve a 114

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 a the new question privilege [of] or whether amend federal coverage courts of an

should

recognize

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. 12-13. When the Branzburg decision issued, only Id. at seventeen

states had recognized some protection for a reporter regarding his or her confidential sources. n.27. adopted Today, a only one state, Branzburg, 408 U.S. at 689 Wyoming, has not enacted and or the

reporters

privilege.

Thirty-nine

states

District of Columbia have shield laws for reporters, whether those shields are absolute Stat. Ann. or qualified. Ariz. Cal. See Rev. Ala. Stat. Code Ann. I,

12-21-142; 12-2237;

Alaska

09.25.300; 16-85-510;

Ark.

Code

Const.

Art.

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; Neb. Minn. Rev. Stat. Stat. 595.021; 20-144; Nev. Mont. Rev. Code Stat. Ann. Ann.

26-1-901;

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. State v. Salsbury, 924 P.2d 208 (Idaho 1996); Winegard See 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, Mar. No. 16, 29,054 1983)

(Hinds

County

Circuit A

Court, of

Mississippi, these the

(unpublished). Arizona, Indiana, York,

number

jurisdictions District Nebraska, of

Alabama, Columbia, New the

California, Kentucky,

Delaware,

Maryland, Oregon,

Montana, and

Nevada, make

Ohio,

Oklahoma,

Pennsylvania

privilege an absolute bar to compelling a reporter to divulge his sources. States, the On the basis of the uniform judgment of the Supreme Court recognized the psychotherapistThe landscape in drastically compels my

patient privilege. regards since to the

Jaffee, 518 U.S. at 14. privilege of has the

reporters The

changed States

Branzburg.

unanimity

conclusion that Rule 501 calls for a reporters privilege. F. The paramount importance of the free press guaranteed by our Constitution compels me to conclude that the First Amendment encompasses a qualified reporters privilege. Using the factors

identified herein and given the facts at hand, Risen must be protected sources. from disclosing the identity of his confidential

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 117 testimony with respect to

criminal conduct.

408 U.S. at 724 (Powell, J., concurring).

Moreover, given the near unanimity of the states with regard to a reporters privilege, I would recognize the privilege under Federal Rule of Evidence 501. courts order quashing the Thus, I would affirm the district trial subpoena and denying the

Governments motion to admit Risens testimony as to the source relied upon by Risen for Chapter Nine of State of War. Issue I, then, I respectfully dissent from the As to

majoritys

holding.

118