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34–205 PDF 2007

S. HRG. 109–837

REPORTERS’ PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW ENFORCEMENT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

SEPTEMBER 20, 2006

Serial No. J–109–111

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 26

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, prepared 

statement .............................................................................................................. 94

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 95

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 8

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Baird, Bruce A., Partner, Covington & Burling LLP, Washington, D.C. ............ 20

Clymer, Steven D., Professor, Cornell Law School, Ithaca, New York ............... 16

McNulty, Paul J., Deputy Attorney General, U.S. Department of Justice, 

Washington, D.C. ................................................................................................. 2

Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP, Washington, 

D.C. ........................................................................................................................ 14

Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP, Washington, D.C. .. 18

QUESTIONS AND ANSWERS 

Responses of Bruce A. Baird to questions submitted by Senator Kennedy ........ 28

Responses of Steven D. Clymer to questions submitted by Senators Kyl and 

Kennedy ................................................................................................................ 30

Responses of Paul J. McNulty to questions submitted by Senators Kyl, Leahy 

and Kennedy ......................................................................................................... 46

Responses of Theodore B. Olson to questions submitted by Senator Kennedy .. 69

Responses of Victor E. Schwartz to questions submitted by Senator 

Brownback ............................................................................................................ 72

SUBMISSIONS FOR THE RECORD 

American Beverage Association, Association for Competitive Technology, 

Chamber of Commerce of the United States, Food Products Association, 

Grocery Manufacturers Association, National Association of Manufacturers, 

and Rubber Manufacturers Association, joint statement ................................. 80

Baird, Bruce A., Partner, Covington & Burling LLP, Washington, D.C., statement ...................................................................................................................... 81

Clymer, Steven D., Professor, Cornell Law School, Ithaca, New York, statement ...................................................................................................................... 85

McNulty, Paul J., Deputy Attorney General, U.S. Department of Justice, 

Washington, D.C., statement .............................................................................. 98

Olson, Theodore B., Partner, Gibson, Dunn & Crutcher LLP, Washington, 

D.C., statement .................................................................................................... 115

Schwartz, Victor E., Partner, Shook, Hardy & Bacon LLP, Washington, D.C., 

statement .............................................................................................................. 129

U.S. Chamber of Commerce, R. Bruce Josten, Executive Vice President, Government Affairs, Washington, D.C., statement ................................................. 141

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REPORTERS’ PRIVILEGE LEGISLATION: PRESERVING EFFECTIVE FEDERAL LAW ENFORCEMENT 

WEDNESDAY, SEPTEMBER 20, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:33 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Kyl, Brownback, and Schumer. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Senate Judiciary Committee will now proceed with our hearing on 

reporters’ privilege. 

This issue arises from legislation introduced by Senator Lugar in 

the U.S. Senate and by Congressman Pence in the House. It has 

been modified and introduced under the caption of the Lugar-Specter bill in the Senate. We have had three hearings on the issue and 

have had testimony from some 21 witnesses. Our concern here is 

on public information. These issues always start with Jefferson, 

who said, ‘‘I would prefer to have newspapers without government 

than government without newspapers.’’ 

The noted columnist William Safire had the essence of the issue 

on a hearing before this Committee: ‘‘The essence of news gathering is this: if you don’t have sources you trust and who trust you, 

then you don’t have a solid story, and the public suffers from it.’’ 

The motivation to move ahead in this area comes from a couple 

of directions. One direction is that there is a deep split among the 

circuits. The First, Fourth, Fifth, Sixth, and Seventh do not allow 

journalists to withhold information absent governmental bad faith. 

Four other circuits—Second, Third, Ninth, and Eleventh—recognize 

a qualified privilege which requires courts to balance freedom of 

the press against the obligation to provide testimony on a case-bycase basis. 

That split is important to rectify or to have some governing law, 

and we are very much concerned about the Judith Miller issue on 

being jailed for some 85 days. Where you have a national security 

interest, there is a reason to proceed and perhaps hold someone in 

contempt. I say ‘‘perhaps’’ because it is a very strong remedy. 

2

I visited Judith Miller in the detention center in Virginia, and as 

I have said in this hearing room before, I wondered why the investigation proceeded after it was apparent that there was no national 

security interest. It is one thing to pursue an investigation on a national security interest and to incarcerate even a reporter. It is 

quite another if you are investigating perjury and obstruction of 

justice. 

Those are serious matters. I was a prosecutor myself and know 

the importance of stopping perjury and stopping obstruction of justice. But it reaches a different level on incarceration of a reporter 

and on the issue of national security. That is perhaps the exceptional situation, and I say ‘‘perhaps’’ because it is a very heavy 

remedy. 

We have talked to the distinguished Deputy Attorney General 

about this matter informally. The Department of Justice is very 

concerned about whether it will hamper their activities on national 

security cases or in criminal prosecutions, and we decided to have 

an extra hearing today to see if we can find a way to modify the 

legislation, if we deem that appropriate with the wisdom of the distinguished panel we have here today. 

So that brings us to you, Mr. Deputy Attorney General, an outstanding record as a prosecutor and doing an outstanding job, in 

my opinion, in the Department of Justice. 

Parenthetically, we were pleased to confirm the Assistant Attorney General for the Criminal Division, Ms. Fisher, yesterday in a 

very, very unusual proceeding. 

I have been joined by my distinguished colleague, Senator Kyl, 

to whom I yield at this point for an opening statement. 

Senator KYL. Well, Mr. Chairman, it might surprise some that 

I would rather hear from the witnesses, and I am sure you would, 

too. So I will forego an opening statement except to say thank you 

for holding this hearing. And I especially thank all of the witnesses 

who are here to give us their advice and counsel. 

Chairman SPECTER. We are going to have to stick pretty close to 

the time limits because a vote is scheduled at 11 o’clock, and our 

experience has been that if you break for a vote, hardly anybody 

comes back. That might not be too big a difference in the crowd of 

Senators we have now, so we will see how it goes. But I would like 

to finish by 11, 11:15, if we can. 

Mr. McNulty, the floor is yours. 

STATEMENT OF PAUL J. MCNULTY, DEPUTY ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. MCNULTY. Thank you, Mr. Chairman, Senator Kyl. Among 

the benefits of serving in the Department of Justice leadership are 

the memorable experiences of testifying before the Senate Judiciary 

Committee, and this is my second memorable experience in 8 days. 

And so I am ready to give somebody else a chance. 

Chairman SPECTER. Are you free next week, by the way? 

[Laughter.] 

Mr. MCNULTY. But what brings us here today again is another 

challenging issue. Challenging issues invariably require the balancing of important interests, and today’s topic is a clear example 

of that. We are duty bound at the Department of Justice to conduct 

3

diligent and thorough investigations and, in doing so, to protect 

civil liberties, including the First Amendment right of free speech. 

As a Nation, we are fully capable of both protecting our security 

and preserving the media’s right to engage in robust reporting on 

controversial issues. Security and freedom are not mutually exclusive or, as Justice Goldberg famously observed, the Constitution ‘‘is 

not a suicide pact.’’ 

The Department of Justice has developed a strong record in 

striking the right balance. At the heart of today’s discussions is the 

concern for our National security. An individual who leaks classified national defense information to the press commits a crime. 

Leaking classified information reflects a profound breach of trust. 

The consequences of leaking can be particularly grave. Leaks lay 

bare aspects of our National defense and risk arming terrorists 

with information needed to avoid detection in their plotting against 

our Nation. 

Some see leakers as nothing more than whistleblowers who are 

caught in a dilemma between, on the one hand, allowing what they 

believe may be unlawful or questionable activity to continue within 

the Government and, on the other hand, an inability to disclose the 

information without committing a crime. These so-called whistleblowers, the argument runs, escape the dilemma by turning to the 

media and receiving a promise of confidentiality from a journalist. 

This dilemma is a false one. It incorrectly assumes that the 

media is an individual’s only outlet. That is not true. The Intelligence Community Whistleblower Act of 1998 was an effort by 

Congress to address this very issue. Congress established mechanisms through which members of the intelligence community could 

voice concerns while ensuring that classified information would remain secure. 

With these mechanisms in place, it is a mistake to dub an individual who leaks classified information as a whistleblower. A 

leaker commits a crime. A whistleblower, by contrast, follows the 

legal course of disclosure enacted into law by Congress. 

Upon learning of a leak of classified information to the media, 

our primary focus, as the Attorney General has stressed, is on 

identifying and prosecuting the leaker, not a journalist who may 

have published the leaked information. This focus is reflected in 

the Department’s guidelines for the issuance of subpoenas to the 

media. Those guidelines ensure that subpoenas seeking confidential 

source information from journalists are issued only as a last resort. 

In the past 15 years, we have requested source information from 

the media in less than 20 cases. The Department of Justice’s record 

then is one of restraint. We have diligently investigated leaks while 

protecting the media’s right to report broadly on issues of public 

controversy. 

Only in extraordinarily rare circumstances—less than 20 cases in 

15 years—has the Department determined that the interests of justice warranted compelling information implicating sources from a 

journalist. During this entire time, moreover, and indeed ever since 

the Department adopted its guidelines in 1973, the media has not 

missed a beat. It has continued to use confidential sources and to 

engage in robust reporting on issues of extraordinary importance to 

our communities and Nation. 

4

Against this history, I respectfully suggest that the Free Flow of 

Information Act of 2006 is a solution in search of a problem. 

Now, I see my time is about up. 

Chairman SPECTER. That is all right. You may proceed, 

Mr. McNulty. 

Mr. MCNULTY. Almost finished, Mr. Chairman. Just a couple 

more pages. In my remaining time, I wanted to highlight some of 

the bill’s most serious flaws. 

First and foremost, by making it far more difficult to seek source 

information from a reporter in those infrequent circumstances 

when it proves necessary, the bill sends the wrong message to 

leakers. It may encourage their unlawful and dangerous behavior. 

Second, the bill shifts law enforcement decisions from the executive branch to the judiciary. This shift is extraordinarily serious in 

the national security area where the executive officials have access 

to the full array of information necessary to make informed and 

balanced national security judgments. The bill undermines this 

constitutional responsibility and separation of powers by thrusting 

courts into the altogether unfamiliar territory of having to weigh 

national security interests against the public’s interest in receiving 

certain news. As numerous judges have recognized, the courts lack 

the institutional resources and expertise to make those decisions. 

The bill goes even further, though. In imposing the burden of 

proof on the government, it places a thumb on the scale in favor 

of the reporters’ privilege and tips the balance against executive 

branch judgments about the nature and scope of damage or potential damage to our Nation’s security. 

Section 5 of the bill is problematic for reasons of a different variety. The Sixth Amendment entitles criminal defendants to compel 

witnesses to appear in court and testify. Section 5, however, would 

permit defendants to access a class of witnesses only if, ‘‘based on 

an alternative source,’’ they are able to show that the witness had 

information relevant to a successful trial defense. The Sixth 

Amendment imposes no such ‘‘alternative source’’ requirement. Nor 

does the Sixth Amendment, unlike the proposed bill, require a 

court to balance criminal defendants’ constitutional rights against 

the public interest in news gathering and in maintaining the free 

flow of information. Such a balancing requirement in this context 

is entirely out of place. 

For these reasons and the others contained in my written statement, Mr. Chairman and Senator Kyl, the Department of Justice 

firmly opposes the proposed bill, though we recognize the clear and 

well-intended purpose of its sponsors and supporters. And, Mr. 

Chairman, I also appreciate the efforts that you have made personally, and your staff, to try to address some of the concerns we have 

raised and the changes that have been made in the legislation. But 

we still hold these positions even with those efforts. 

So thank you for the opportunity to testify here, and I look forward to discussing this with you. 

[The prepared statement of Mr. McNulty appears as a submission for the record.] 

Chairman SPECTER. Well, thank you, Mr. McNulty. 

Starting the 5-minute rounds now, at the outset I disagree with 

you that it is a solution in search of a problem. When you have got 

5

a split in the circuits and you have got the Judith Miller case, my 

view is it is something we ought to address legislatively. 

You have said or it has been noted that the legislation is modeled 

after the guidelines of the Department of Justice, what you already 

use. Can you give me a case illustratively where the standards in 

the pending legislation would differ from what the Department of 

Justice now does to prejudice the Department? 

Mr. MCNULTY. You are looking for a specific case where we have 

issued or an opinion has been issued— 

Chairman SPECTER. Well, I am looking for the difference, and instead of asking you to comment on the differences between the 

two—and perhaps you cannot give it on the spur of the moment. 

But I would like you to address that in concrete terms. What kind 

of a case illustratively would prejudice the Department by this legislation that would not hurt the Department by using your guidelines? 

Mr. MCNULTY. I think, Mr. Chairman, the heart of that question 

or our response to that question goes to the national security area, 

and in that I would say just a couple things. 

By setting the standard the way in which the provision relating 

to national security does concerning the need for the Government—

the burden is on the Government now, the burden of proving significant harm and through clear and articulable facts. So it is preponderance of the evidence, but it is clear and articulable harm 

that has to be proven. We are put into a very difficult situation, 

and I can think of a number of hypotheticals where that standard 

creates real problems for us. For example— 

Chairman SPECTER. Let me interrupt and move it along because 

I have a couple more questions. If you want to supplement, do so 

in writing. 

You have the contempt citation of Judith Miller. Had the LugarSpecter bill been in effect, I think she would not have gone to jail. 

Would she have gone to jail by a proper application of the Department of Justice guidelines? 

Mr. MCNULTY. I really do not know how to respond to that because that would require me to know all of the circumstances and 

facts involved in that investigation which would lead to our application of our guidelines to say that we have exhausted all the other 

methods to obtain the information. 

Chairman SPECTER. Well, may I ask you to make that inquiry? 

Mr. MCNULTY. Well, the problem is—I would be happy to do 

whatever the Chairman wants, but here is my problem. I am 

recused of the investigation being conducted by Pat Fitzgerald, and 

for me to get the information necessary to make a decision about 

whether or not the Judith Miller case— 

Chairman SPECTER. Can you delegate that? You have a personal 

recusal? 

Mr. MCNULTY. Well, it is the leadership recusal. The AG is 

recused, I am recused. It is a Special Counsel investigation. Now, 

Dave Margolis in my office is the person who oversees or has supervisory control over the Special Counsel. 

Chairman SPECTER. Well, I would like an answer to that question from the Department of Justice. We are considering oversight 

at the right time as to what the Special Prosecutor has done. But 

6

that bears directly on this legislation. This legislation was, as I 

said earlier, motivated significantly by the Miller incarceration and 

the circuit split. So I would like the Department to know the Department has continuing responsibility for what Mr. Fitzgerald is 

doing. 

Mr. MCNULTY. Yes. 

Chairman SPECTER. The Department has the authority to discharge him, for example, if the circumstances are appropriate. So 

I would like whoever is not personally recused to give us a response. 

Mr. MCNULTY. I will take it back to the Department. 

Chairman SPECTER. OK. You say—and I am concerned about 

this, too—that the courts’ lack ability to weigh national security interests, and there is a fair amount of judicial discussion of that 

dealing with the President’s inherent authority, which we have in 

the surveillance legislation. But I was at the Judicial Conference 

yesterday talking to D.C. circuit judges who have to weigh classified information on habeas corpus, and the President has agreed to 

the electronic surveillance bill where the court is going to weigh it. 

Doesn’t that show that the courts do have the capacity to weigh 

national security matters? 

Mr. MCNULTY. Well, I mean, courts do look at national security 

issues in certain ways, but this one presents, I think, an impossible 

task for the court because it requires the court to know so much 

about the significance of a harm and be able to say that this disclosure, which might, by the way, involve some tactic or some effort 

by the Government that is controversial and a matter of public discussion, and a judge is going to look at that, every different judge 

looking at it in a different way, and say that that outweighs this 

harm. 

Now, the harm will have to be understood in the context of all 

of the facts and aspects of harm that are going on. A responsibility 

that constitutionally has been committed to the executive branch, 

and courts have observed that repeatedly. That would be a very big 

undertaking. 

Chairman SPECTER. Thank you, Mr. McNulty. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

Let me pursue that same course because I think while there are 

a lot of issues relating to the legislation, the one that probably is 

of most national importance and the one that raises the most questions in my mind is the exception for national security interest, primarily Section 9. 

The Chairman began to get into an area of inquiry that I wanted 

to pursue as well, and that is, what kind of standards there would 

be to evaluate whether or not the Government had met its burden 

here. The language, for example, ‘‘outweigh the public interest in 

news gathering and maintaining a free flow of information to citizens,’’ how would a court look at this? Is there a body of law? Is 

there some kind of a test? How would you define whether you have 

satisfied the ‘‘public interest in news gathering’’ test or ‘‘public interest in maintaining a free flow of information to citizens’’? 

Mr. MCNULTY. Senator, I think it would be highly subjective. I 

think each judge would have to make that kind of judgment on his 

7

or her own about this balance. And the problem is the judge would 

do that knowing something of the harm—that is, the intelligence 

community would try to muster all of its information in some ex 

parte proceeding and present that as best as possible. But by the 

very definition of the Act, it is going to limit some of that information. And even doing it—and this is one interesting point—even by 

going into court and making this showing of significant harm, we 

are potentially signaling to our enemy who may be involved in that 

story that we believe that this disclosure is a significant harm. And 

perhaps we have tried, for national security interests, to downplay 

the disclosure or to in any way limit the damage from the disclosure. But now by going after the source information, we are saying 

that yes, indeed, we have enough evidence here to convince this 

judge that a significant harm to national security has happened. 

Senator KYL. And by the very nature of the effort here, it is not 

something that can be kept secret or classified because the whole 

point is to weigh the harm versus the other general interest— 

Mr. MCNULTY. Certainly that exercise would be public. The information provided would be in camera. 

Senator KYL. The ‘‘significant harm to national security’’ is what 

we are talking about. That is the exact language. Do you have a 

sense of what would have to be established in order to demonstrate 

the harm is significant? In other words—let me put it conversely—

what harm to national security is not significant? 

Mr. MCNULTY. Well, that is right. I think that the term is going 

to mean different things to different folks. Some judges I think will 

say that, ‘‘I believe if it involved national security, I am going to 

err on the side of agreeing with the Government in terms of the 

significance.’’ Other judges will be much different about that and 

will want to see very specific information about that. 

Another problem is that a disclosure sometimes can occur that 

reveals something that may actually be partially known or suspected, but it is related to other programs that have not been disclosed. And now the concern of the Government is if we do not get 

to the source of that information, we run the risk of those other 

programs being exposed. And so now the significant harm is just 

a bit extended. It is not about that disclosure, but about that person’s access to information where the harm could be much greater. 

Now, will a judge see that as clearly outweighing the interest of 

the public for the information? It is hard to say. 

Senator KYL. What comes to my mind is the disclosure of the national surveillance activity, as it has come to be known, and immediately following the public disclosure were the calls for the Government to answer the question: What other programs do you have 

that are like that? Or are there any other programs that are like 

that? 

Is that a matter of concern? 

Mr. MCNULTY. That is right. I think that is the kind of widening 

circle effect that this can have. 

Senator KYL. One of the provisions here talks about, in subsection (a)(2), ‘‘unauthorized disclosure of properly classified information.’’ What does that mean? 

Mr. MCNULTY. I am sorry. This is in section— 

8

Senator KYL. It is subsection (a)(2). It is part of general Section 

9. The (a)(2) exception, the Act will provide no privilege ‘‘against 

disclosure of information...in a criminal investigation or prosecution 

of an unauthorized disclosure of properly classified information...’’ 

Mr. MCNULTY. Oh, right. This also is, I think, a significant problem with the bill because now the court also has to make a decision 

that this information has been properly classified. And that in 

itself is a big undertaking because it then puts the judge in the position of making—or exercising the kind of judgment that experts 

in the field have to exercise, which is to know that if this information were to get into the hands of the enemy or do harm to the 

United States and other aspects of classification. 

So the judge is now saying, ‘‘I am not sure I even buy that you 

have classified this properly and, therefore, everything that follows 

is I do not think that the disclosure of it is a problem.’’ 

Senator KYL. Just a quick followup, Mr. Chairman. So you don’t 

read that as narrowly as just a procedural limitation but, rather, 

the substantive judgment of whether it was appropriate to classify 

the information in the first instance? 

Mr. MCNULTY. That is how I read it. I certainly defer to the authors and supporters if I am missing something there. 

Senator KYL. It does not say one way or the other. 

Mr. MCNULTY. That is how I see it. And I want to quickly just 

say and make sure there is no misunderstanding here, and I will 

have to repeat myself. When we are talking about the risks here 

on the national security front, the Government’s interest is to find 

the leaker. And I know that, because this is such a sensitive subject, by talking about those concerns there in the bill, it is easy to 

jump to the next conclusion, which is, oh, OK, so every time there 

is a leak of something that is highly sensitive, you want to go after 

the reporter. And the answer is no. We want to go after the leaker, 

and that is why this authority has been sparingly used, less than 

20 times in 15 years. But it is about whether or not we will ever 

have that ability if we believe that that is our last recourse in 

being able to get the information. 

Chairman SPECTER. Thank you, Senator Kyl. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. First, I would ask 

unanimous consent that Senator Leahy’s statement be made a part 

of the record. 

Chairman SPECTER. Without objection, it will be placed in the 

record. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

you for holding the hearing and thank Deputy Attorney 

General McNulty for coming by. 

I believe that—and I think everyone agrees—the press has a 

vital role to play in our country in providing people with information. A free and independent press is just as important as a fair 

and independent judiciary, and the freedom is enshrined in our 

Constitution with good reason. It is exemplified every day by brave 

9

and intrepid men who make up the most vibrant and effective 

press community in the world. 

To be sure, the threats to a free press come from many quarters, 

not just the Government. If you pick up a newspaper this morning, 

you will be shocked to see that a respected international company, 

Hewlett-Packard—it is here in the New York Times here—looked 

into infiltrating newsrooms to identify leakers of confidential corporate information. So this problem is everywhere, and it is probably going to get greater, not less, as we depend on information 

more and more and more in our society. 

So there certainly is a need to protect press independence. In 

order for the media to do their job, we know it is important for 

them to use confidential sources. In many cases, there is no problem in protecting confidential sources. When Government officials 

are acting as whistleblowers, as a confidential source in the Government says the agency has doctored a study, or when the Government is hiding important information whose disclosure will not 

harm national security in any way—in those cases I think every 

one of us would want the reporter to be able to get the information 

and have it out, unless we want to change the whole fabric as to 

the way this Government has been going for over 200 years. 

But in other cases, the leak itself is per se a violation of law, and 

that is the problem I had with the broader bill that was introduced. 

Not all leaks are OK, which is what the broader bill said. When 

a person leaks secret grand jury information, that is against the 

law. Society has made a determination: You leak grand jury information, that is against the law. There is no countervailing issue 

here because we have made that—and it is routinely done by prosecutors to aid their cases. We have all seen it. 

The Plame case is another one. Leaking the identity of a covert 

CIA agent is against the law. There is no justification for a reporter holding information. In cases like these, the harm done by 

the leak and the need to punish the leaker often far outweighs the 

need to keep a source confidential. 

So we have a balancing test here. How do you draw the line? 

And I think the bill that Senator Specter has drawn up and I have 

cosponsored recognizes there must be a balance. It recognizes we 

have to preserve a free press but ensure that criminals are brought 

to justice. It recognizes that not all disclosures by Government officials to members of the press are equal. That is the fundamental 

wisdom of the bill. And you have extremes on both sides saying the 

press is right all the time, it should always be protected, and then 

the press is never right, it should not be. 

We certainly want to protect a whistleblower. We certainly want, 

if someone at the FDA sees that tests are being short-circuited and 

goes to the higher-ups and they say, ‘‘Go away,’’ that they be able 

to go to the press and expose it. On the other hand, when something is publicly prohibited by statute from being made public, it 

is a different story. When there is an overriding public interest 

against disclosure, which there is not in the typical whistleblower 

case, the press must bend to the needs of law enforcement. 

One of the problems, of course, is that the government has a selfinterest in overclassifying things, and not just in national security. 

You could make a hypothetical argument that some Government 

10

official would say everything we do is classified. So we have to be 

mindful of that as well, and you pointed out, Mr. Deputy Attorney 

General, someone has to make that determination. I would argue 

a judge is often better at making that determination despite his or 

her lack of familiarity than the self-interested Government is in 

case after case after case. 

So the legislation does seek that balance. It is not an easy balance, but I think this legislation, unlike the previous bill, it is better to have it than not to have it, and that is why I am supporting 

it. But I want to make two other points, and then I will conclude. 

First, I was struck by a statement in Mr. McNulty’s written testimony. You say, ‘‘There is no virtue in leaking. It reflects a profound 

breach of public trust and is wrong and criminal.’’ I understand 

that point of view, but many leaks outside of the national security 

context have been good for America. Movies extol leakers. Books 

do. Our society does. Every President has. So I think that statement goes quite overboard, and I was wondering if you meant it 

only in the national security context. 

Second, I worry that this administration has engaged in a pattern of selective outrage. I worry that the administration employs 

a double standard when it comes to leaks and the harm to our National security. Congressman Delahunt and I sent a detailed letter 

to Attorney General Gonzales and John Negroponte on July 18th, 

pointing out case after case where it was clearly classified information that was leaked, and we did not hear a peep from the Government because it seemed to serve their interests to have that information out, and then others where everyone was on their high 

horse condemning the leak. 

So a review of the record, at least our review, leaves the impression that the administration is unconcerned about leaks of classified information to certain media sources, particularly when the 

revelation may have provided a political advantage to the administration, and that ultimately is destructive of the values that you 

seek to assert in your testimony. 

Well, I received a response from Mr. Negroponte. He said— 

Chairman SPECTER. Senator Schumer, how much longer do you 

need? 

Senator SCHUMER. About 30 seconds, Mr. Chairman. 

Chairman SPECTER. We are looking at an 11 o’clock vote, and I 

had said— 

Senator SCHUMER. About 30 seconds. 

Chairman SPECTER [continuing]. Earlier we would have to stay 

within the time limits. 

Senator SCHUMER. I need about 30 seconds. 

Chairman SPECTER. Fine. 

Senator SCHUMER. I did not receive a response from the Justice 

Department, even though Negroponte said, ‘‘Questions regarding 

the number of referrals and the status of any associated investigation have been referred to the Department of Justice, which is best 

able to determine the information that can be provided in these 

matters.’’ 

So I am asking you, am I going to get a reply to my letter? 

Mr. MCNULTY. I will check it out. 

Senator SCHUMER. Fine. Please, would you get back to me? 

11

Mr. MCNULTY. Yes. 

Senator SCHUMER. This is an important issue. It relates to this 

legislation. We deserve a response. It was a very careful and wellthought-out letter. 

Mr. MCNULTY. OK. 

Senator SCHUMER. OK, fine. 

Let me conclude by saying just as we have to balance liberty and 

security, we need to balance a free and independent press against 

the needs of law enforcement, and I think this legislation comes as 

close as one can to striking that balance. 

I yield. 

Chairman SPECTER. There is no question pending, Mr. McNulty, 

but would you like to answer. 

Mr. MCNULTY. Sixty seconds. I know we are moving along fast. 

I wanted to say first my statement’s language was not properly 

qualified. I apologize for that, because my intention here is to talk 

about the unlawful leaking. ‘‘Leaking’’ is a general term, and it is 

best to use it in a qualified way. And I am referring here to where 

it is a violation of law. I certainly understand your point about the 

fact that disclosing information generally can be certainly not a violation of law and, therefore, can be of some help, or whatever, depending upon the circumstances. 

Just one other quick point, and that is, I really appreciate, Senator Schumer, your acknowledgment of the fact that there is an 

area where it is unlawful to disclose information, whether it is classified or it is grand jury. My concern about this bill is that no matter what side of the debate you are on here, you have to say that 

it is going to make it harder for the Government to get this information. That is sort of the point of it, that we have to go to court. 

We have the burden, and we have to convince the judge that this 

interest and this need outweighs the public right to know and gather information from the media and so forth. And that alone, I 

think, sends a troubling message to the unlawful disclosure of information because it says that now it is just that much harder for 

the Government to ever find me if the Government is going to try 

to do it. There is a greater burden, there are more obstacles, and 

I think it could encourage that process rather than discourage it. 

Chairman SPECTER. Thank you, Mr. McNulty. 

We are going to be pursuing this legislation, Mr. McNulty, and 

we will continue to work with you to see if we can find an accommodation. I understand your position today, and we wanted to have 

this hearing, as I said earlier, to have a public discussion of the position of the Department of Justice. And we want to see if we cannot accommodate your interest, but I think it is highly likely— 

and, of course, I cannot speak for the Congress, only for myself. 

But I think it is likely we will be proceeding with the legislation. 

Mr. MCNULTY. Senator, Mr. Chairman, I would like to submit for 

the record an answer to a question I did not get, which is to respond to the former Solicitor General on his concerns about the 

case law and the split among the circuits. You raised it in your 

opening statement. 

Chairman SPECTER. You want to respond to a question you did 

not get? 

[Laughter.] 

12

Mr. MCNULTY. Because I think it is important for the record to 

have the Justice Department’s view on that subject, since the 

former Solicitor General is a distinguished person and I want to 

make sure that we have responded to that issue in particular. And 

it is just to say that I think that this issue of what the First 

Amendment protects will still be in the circuits even after this legislation is passed. I think that reporters would still take that issue 

up, and you could have a disparity. You will shift the disparity, if 

there is one, in the circuits— and I believe as a practical matter, 

that disparity has proved to be a significant issue. But you will 

shift it to the district court where you will have now all the Federal 

judges with their different way of making this balance, and you 

will end up with some weird things about how in some places in 

the country it is easier to disclose this to the press, other places 

it is not because of the way judges operate. And so I think that the 

problem is not fixed, if there is one, in terms of uniformity, by 

shifting this to the courts. 

Mr. Chairman, thanks for letting me say that. 

Chairman SPECTER. OK. Thank you very much, Mr. McNulty. 

Thank you for coming in. 

Senator KYL. Mr. Chairman, I was hoping to have a second 

round of questioning. We will never have a more qualified witness 

than Mr. McNulty here. 

Chairman SPECTER. You may proceed. 

Senator KYL. I would appreciate that very much. I will continue 

to be very brief. 

Chairman SPECTER. You may proceed. 

Senator KYL. But I want to focus again on Section 9, on the national security exception, because I think this is where we really 

have to pay attention. 

One of the definitions is with respect to acts of terrorism against 

the United States. That is where you can have an exception to the 

privilege. And I am wondering whether, Mr. McNulty, there are situations in which we might want to act and situations where the 

potential act of terrorism is against Canada or the United Kingdom 

or Mexico or some other country. Why just an act of terrorism, in 

other words, against the United States? And, also, could you envision circumstances in which the issue would be preparation of an 

act of terrorism rather than an act itself? 

Mr. MCNULTY. The limitation to the United States did strike me 

as being a potential concern here because we are in such close alliance with Canada and the U.K., for example, in terms of threat. 

And the recent attack planning that went on in the U.K. this summer I think illustrates what you could get into here in terms of trying to convince a judge that this raises significant harm in the 

United States. But that is a potential problem. 

Senator KYL. There is another definitional issue here, and I am 

just perplexed. Maybe I should address this more to the authors. 

But it applies, the words are, ‘‘by a person with authorized access,’’ 

and I am wondering what sense it makes for the bill to say that 

there is no privilege in a criminal investigation of unauthorized disclosure of information by a person with authorized access, but you 

could have a privilege when a person with unauthorized access disVerDate 0ct 09 2002 15:24 Apr 04, 2007 Jkt 034205 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34205.TXT SJUD1 PsN: CMORC
13

closes the information. Is that a situation that, in your view, could 

occur? And would it pose a problem? 

Mr. MCNULTY. Absolutely. The ultimate harm here is the disclosure of the information, so the chain of control may not be the deciding factor. And it could very well be that the individual who had 

access was not authorized to have it, but found the information 

anyway or went after it in some fashion, acting as an agent in 

some fashion. 

So I think it could create probably an unintended consequence. 

Senator KYL. Even a staff assistant that obviously was not 

cleared— 

Mr. MCNULTY. Right. 

Senator KYL. OK. Just quickly moving on, in the definition section, Section 3, ‘‘attorney for the United States,’’ it appears to me 

that—and it is or any ‘‘other officer or employee of the United 

States in the executive branch. . .with the authority to obtain a 

subpoena or other compulsory process.’’ Wouldn’t this provision include JAG officers? And if that is the case, could this negatively 

impact military tribunals or terror trials by limiting what Government attorneys can compel? Wouldn’t it be worth considering a 

JAG exception, for example, to the rule? 

Mr. MCNULTY. Yes, I think the language is broad enough to include military attorneys because it refers to an employee of the 

United States generally in the executive branch. So that means 

then that some of the circumstances where this could come up with 

be—and this may be more of an issue down the road, an unusual 

situation involving a military investigation and prosecution, and 

they raise some question about the court of jurisdiction there, too, 

as well. 

Senator KYL. Given the fact that we are considering how to do 

these military tribunals and so on, it seems to me that that is an 

important issue that we should look at. 

Let me just ask finally, to try to keep within the time here, there 

was one thing that struck me as odd outside of this National security exception, and I would like to get your comment on it. In Section 7, it says, ‘‘If the alleged criminal or tortious conduct is the 

act of communicating the documents or information at issue, this 

section shall not apply.’’ In other words, there is a privilege. 

Is there a rationale, in your view? Why should a journalist have 

a privilege when the act of communicating the documents or information to the journalist is a criminal act? What is the rationale for 

that, in your view? I guess the question from your point of view of 

a prosecutor, what issues would that raise? 

Mr. MCNULTY. Well, that is a complicated question. It raises the 

question of in what way does the violation of criminal law occur 

with the disclosure itself, and I concede that that is one of the 

trickier subjects here in this. 

The argument could be made on the side of those supporting the 

bill that the disclosures, generally speaking, would violate—in all 

aspects could violate the law and, therefore, that would swallow up 

the privilege itself. But then you have that issue that Senator 

Schumer raised as well, that you do not want to protect illegal activity. 

So it becomes a difficult matter to navigate in this legislation. 

14

Senator KYL. I appreciate it. 

Mr. Chairman, in view of your time constraints, I would simply 

submit some additional questions for the record to 

Mr. McNulty, and thank you. 

Chairman SPECTER. Fine. Thank you very much, Senator Kyl. 

Thank you very much, Mr. McNulty. 

Mr. MCNULTY. Thank you, Mr. Chairman. 

Chairman SPECTER. We now turn to our second panel: Honorable 

Theodore Olson, Professor Steven Clymer, Mr. Bruce Baird, and 

Mr. Victor Schwartz. 

Our first witness is Theodore Olson, partner in the Washington 

law office of Gibson, Dunn & Crutcher, where he co-chairs the Appellate and Constitutional Law Group. Prior to joining the firm, 

Mr. Olson served as Solicitor General. He was involved in high-profile cases involving Hamdi v. Rumsfeld and Rumsfeld v. Padilla; 

headed the Office of Legal Counsel as an Assistant Attorney General during the Reagan administration, argued 43 cases in the Supreme Court; bachelor’s degree from the University of the Pacific 

and a law degree from the University of California. 

Thank you for joining us again, Mr. Olson, and we look forward 

to your testimony. 

STATEMENT OF THEODORE B. OLSON, PARTNER, GIBSON, 

DUNN & CRUTCHER LLP, WASHINGTON, D.C. 

Mr. OLSON. Thank you, Chairman Specter, Senator Kyl. It is a 

privilege to be here before this Committee to testify concerning a 

matter that is important to the ability of citizens to monitor the activities of and to exercise a democratic restraint on their Government. One of the most vital functions of our free and independent 

press is to function as a watchdog on behalf of the people—working 

to uncover stories that would otherwise go untold. Journalists in 

pursuit of such stories often must obtain information from individuals who, for fear of retribution or retaliation, are unwilling to be 

publicly identified. 

Naturally, these stories sting. Uncovering corporate malfeasance, 

environmental pollution, official corruption, or governmental abuse 

of power quite often exposes powerful, influential interests. The response often is a lawsuit, a leak investigation, and full-throated efforts to find and tarnish the sources of the information. And subpoenas to the reporters who uncovered these facts, these uncomfortable facts, are often the weapons of first resort. 

Recognizing the need for some protection for journalists and their 

sources, 49 States and the District of Columbia have laws providing some measure of protection to reporters from subpoenas. 

Numerous Federal courts already grant similar protections, some 

based upon the First Amendment and others on Federal common 

law. And as you have observed, Mr. Chairman, the circuit courts 

differ. You mentioned the circuits that provide some measure of a 

privilege and some that do not. Some of them provide protections 

in criminal cases, some only in civil cases. So the Federal law is 

a hodgepodge. How can this make any sense in Federal courts? 

This lack of uniformity creates intolerable uncertainty regarding 

when a meaningful assurance of confidentiality can be made. 

15

This uncertainty renders many existing privilege provisions in 

the States ineffective. Reporters cannot foresee where and when 

they may be summoned into court for questions regarding a particular story, and their editors, publishers, and lawyers are similarly hamstrung by the confusion and can provide little help. 

This proposed legislation does not work a dramatic expansion of 

the reporters’ privilege or a realignment of public policy, and it 

may not please everyone. That is usually the case with legislation. 

But it is a long overdue recognition that the privilege should be 

recognized and in Federal courts should be uniform, and to the extent, consistent with the privileges provided by State courts, those 

differences should be eliminated. This Act regularizes the rules, 

and it merely requires, among other things, that a party seeking 

information from a journalist in a criminal or civil case be able to 

demonstrate the need for that information, that it is real, that it 

cannot be gleaned from another source, and that nondisclosure 

would be contrary to the public interest. 

Concerns over national security and law enforcement have been 

properly addressed and fairly balanced. Naturally, the Department 

of Justice does not want its judgments second-guessed by judges, 

and I have the greatest respect for the United States Attorneys and 

the Department officials making these decisions, including General 

Gonzales and Deputy Attorney General Paul McNulty. But we do 

not recoil from judicial oversight of these types of decisions when 

it comes to attorney-client or physician-patient privileges or search 

warrants or FISA warrants. And there is no reason we should reject it when it comes to a journalist’s source of communications. 

Bear in mind that 39 State Attorneys General, not bashful about 

protecting law enforcement prerogatives, have supported recognition in a brief filed in the Supreme Court in the Valerie Plame 

case. Indeed, they say that the absence of a Federal shield law undermines the State law policy decisions underlying those provisions. 

Now, reasonable minds can disagree on the value of anonymity 

granted for one story or another, even on the concept of a reporter’s 

privilege itself. But there should be no disagreement that uniform 

rules are better than a hodgepodge of a Federal system that leaves 

all parties in a state of confusion. 

I have been on both sides of this. I have been in the Justice Department for 7 years in two different administrations, and I respect 

the interests and integrity of the law enforcement officials. But for 

another 30 years or so, I have been a lawyer representing journalists, reporters, broadcasters, and publishers, and it is extremely 

difficult to tell those persons, who are a valuable component of our 

constitutional system, what the law is. I do not see an objection to 

a Federal law that attempts to regularize the system and affect the 

common law policies that are already in existence in many States 

and reflected in the Department of Justice’s voluntarily adopted 

guidelines. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Olson appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Olson. 

16

Our next witness is Professor Steven Clymer, Cornell Law 

School, he began his legal career investigating police corruption as 

an Assistant District Attorney in Philadelphia—somewhat after my 

time, Mr. Clymer. Why didn’t you apply earlier? 

[Laughter.] 

Mr. CLYMER. I did not have my law degree then. 

Chairman SPECTER. Had been an Assistant U.S. Attorney in the 

Central District of California, involved in the high-profile Federal 

prosecution of L.A. police officers charged in the beating of Rodney 

King; now teaches criminal procedure, evidence, and 

counterterrorism; undergraduate and law degrees from Cornell. 

Thank you for joining us, and we look forward to your testimony. 

STATEMENT OF STEVEN D. CLYMER, PROFESSOR, CORNELL 

LAW SCHOOL, ITHACA, NEW YORK 

Mr. CLYMER. Thanks for having me here today, Mr. Chairman. 

Chairman SPECTER. When were you an Assistant D.A. in Philadelphia? 

Mr. CLYMER. I started there in 1983 and I left in 1986. 

Chairman SPECTER. Was there much police corruption, police 

brutality in 1983? 

Mr. CLYMER. Yes, there was a fair amount then. 

Chairman SPECTER. And the D.A.’s office investigated it? 

Mr. CLYMER. Yes. Successfully, I might add. 

Chairman SPECTER. Aside from my tenure, they did not do too 

much of that. Of course, they did not have Commissioner Rizzo to 

deal with. Times change. Nobody remembers Commissioner Rizzo. 

Anybody remember Mayor Rizzo? 

This comes out of my time, Professor Clymer, not yours. 

[Laughter.] 

Chairman SPECTER. You may proceed. 

Mr. CLYMER. Thank you. Thank you for having me here. I would 

just like to make a couple of points and then answer any questions 

that you may have. 

First, I want to address the question about why there is a need 

for this legislation now, and I guess that boils down to the question 

of whether the present law in its present form is an impediment 

to the free flow of information. And, quite frankly, I think that is 

a hard case to make. The principal example I will give are the recent high-profile leaks about the NSA wiretapping program and the 

leak about the CIA detention of al Qaeda operatives overseas. 

Those two leaks of highly classified information came in the face 

of widespread news coverage of the jailing of Judith Miller—newspaper coverage that made very clear that there was little or no 

Federal protection for anonymous sources. 

That suggests to me that people who are inclined to make leaks 

of that kind of information are going to make leaks whether or not 

there is Federal protection for anonymous sources. The people who 

made those leaks had to have known that if the reporters in those 

cases were subpoenaed, they could be compelled to testify about the 

identity of their sources. Yet they chose, nonetheless, to make those 

leaks. 

What are the other arguments we get for the need for this law 

now? Well, there is an argument that is made by the media often 

17

that there are more subpoenas now to reporters than there ever 

have been before. I haven’t seen statistics, but let’s assume for the 

sake of argument that is true, that now there are more subpoenas 

than they have been in the past. One thing is clear. Those subpoenas are not coming from the Department of Justice, which 

issues on average less than one subpoena to the media for source 

information every year. That would suggest that any law that this 

body passes ought to exempt the Department of Justice, which 

seems to do a very good job of policing itself in this area. 

The third argument that is made for the legislation is the need 

for uniformity, and I think there are powerful claims that uniformity across the Federal system is better than a lack of uniformity. However, the proposed legislation will not accomplish that 

uniformity. As the Deputy Attorney General said, this legislation 

has a very subjective, open-ended, and unstructured balancing test 

that individual district court judges are going to apply on a caseby-case basis. It is a balancing test that I believe is virtually unworkable because it requires district judges to predict in individual 

cases what disclosure of source information in that case will have 

on the future flow of information to reporters. 

With all respect to Federal judges—and they are due an enormous amount of respect—I do not believe they are competent to 

make that determination. And what that balancing test will boil 

down to on a case-by-case basis are the subjective, idiosyncratic 

views of individual Federal court judges. And so you will not get 

uniformity as a result of this proposed legislation. You will get 

greater disuniformity than we have today. 

Let’s suppose I am wrong about that. Let’s suppose there is now 

a need for some legislation to increase the flow of information to 

the news media. Will this legislation accomplish that objective? I 

think the answer is clearly no. The most important point in time 

for the flow of information is when an anonymous source calls a reporter and seeks an assurance of confidentiality. If the reporter 

cannot give a certain assurance, the source may not disclose the information, and the complaint about the present state of the law is 

there is no certain assurance that a reporter can honestly give to 

a source. This legislation does not change that one iota. This legislation is subject to eight or nine separate exceptions and a series 

of subjective balancing tests, depending on which exception applies. 

At the time the reporter talks to the source, it will not be clear 

which one of those exceptions and which one of those balancing 

tests may apply down the road. It depends on who subpoenas the 

information, whether it is a civil or criminal proceeding, the type 

of case it becomes, and who makes the request. The balancing test 

itself is entirely unpredictable. So even if this legislation were to 

become law tomorrow, that reporter talking to that source could 

not give any assurance of confidentiality. 

The third and final question, I suppose, is this: Could I do any 

better? Because it is easy to criticize. It is certainly harder to offer 

solutions. And so I will offer just in passing two possible ways that 

I think you could have a more definite, more certain piece of legislation that would go to where the problems actually are. 

One possibility is to exempt entirely any disclosures that are in 

and of themselves illegal: leaks of classified information, leaks of 

18

grand jury information, leaks of wiretap information, leaks of tax 

return information—all of which would violate and clearly violate 

Federal law. Simply make them outside the realm of the privilege. 

I have got a different proposal, but I see my time is up, so if 

there is a question, I will answer about that proposal as well. 

[The prepared statement of Mr. Clymer appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Professor Clymer. 

We now turn to Mr. Victor Schwartz, partner in the Washington 

firm Shook, Hardy & Bacon, where he chairs the firm’s Public Policy Group; former Dean of the University of Cincinnati College of 

Law; serves as general counsel to the American Tort Reform Association, and had previously chaired the Department of Commerce’s 

Interagency Task Force on Insurance and Accident Compensation; 

a graduate of Boston University and Columbia Law School. 

Thank you for again appearing as a witness before this Committee, Mr. Schwartz, and the floor is yours. 

STATEMENT OF VICTOR E. SCHWARTZ, PARTNER, SHOOK, 

HARDY & BACON LLP, WASHINGTON, D.C. 

Mr. SCHWARTZ. Thank you, Mr. Chairman and Senator Kyl. It is 

a privilege to be here today, especially on this panel. The National 

Law Journal called me the other week and said there are four lawyers in this town that charge more per hour than I do, and two of 

them are on this panel. 

[Laughter.] 

Mr. SCHWARTZ. So I thought that is definitely an honor. 

Chairman SPECTER. Is there some aspersion on the other panelist? 

Mr. SCHWARTZ. No. I am looking up to them, and I am sure the 

professor would be in the same league. 

I have the privilege of testifying on behalf of NAM, which is the 

largest industrial trade association in the country, and we would 

submit a letter for the record, which includes other associations 

that generally concur in my thoughts today. And, Mr. Chairman, 

I know that you and your staff have worked hard to create a fair 

and balanced bill on the subject of the reporter privilege. But the 

purpose is to guarantee the free flow of information to the public 

through a free and active check on Government. And you emphasized this in your opening remarks—Government and the media. 

There has and will be serious debate about that, but my purpose 

today is outside of the perimeter of that debate. I would like to talk 

about how the bill, perhaps inadvertently, affects private litigation. 

The bill interfaces with the law of evidence, and I did teach that 

for over 15 years. And my first article was about the Federal Rules 

of Evidence, and it had a very interesting history that is relevant 

here today. 

When the Federal Rules of Evidence were sent up to the Congress, they did something that is almost unique in the history of 

this body. They struck the part that dealt with privileges, and the 

Senate Judiciary Committee was clear that this is a topic in private litigation that should be left to the Judiciary. The Committee 

report said, ‘‘Our actions today in rejecting having specific privileges in private litigation outline should be understood as reflecting 

19

the view that a privilege based on confidential relationship and 

other privileges should be determined on a case-by-case basis.’’ And 

they set forth a general rule, 501, that all lawyers who practice in 

the Federal courts are familiar with. In essence, the House Judiciary Committee Chair said the same exact thing. 

Congress’s judgment I think was correct, especially in the context 

of private litigation, and you know that virtually the entire Rules 

of Evidence, Mr. Chairman, are based on finding the truth—the 

hearsay rule, evidence dealing with experts. There is only one area 

where the Federal rules put something at a higher value than 

truth, and that is privilege. And in private litigation, this is highstakes poker and requires careful individual consideration in the 

private litigation context. 

In that regard, I think the bill is overly broad because its shield 

would rise up against all leaks—and others have discussed this—

whether they are legitimate or illegal. For example, leaking a trade 

secret or leaking something protected under HIPAA would be given 

the same protection as a whistleblower, which should be protected. 

The Free Flow of Information Act could provide free flow of information that should not really flow—trade secrets, health files, and 

other areas of privacy. There should be no safe harbor for areas 

where the source has violated law. 

We just saw recently there was a leak where somebody who 

worked for Coca-Cola gave information over to Pepsi-Cola. PepsiCola did the honorable thing and returned it. But if this information had been given to a reporter, a blogger, boom, everybody could 

go out and make Coke in their garage, and that would not be a 

very good outcome. 

People who are breaking the law should not be protected by simply handing information over to a reporter in the private litigation 

context. The people who have done this should be prosecuted, and 

impediments should not be put in the way. 

It is also true in private litigation. As the Chairman, who has extensive experience in litigation, knows, discovery is a difficult process, Senator Kyl, and you know this, too. If when I am handing 

over documents in discovery I realize that this material can be put 

in the hands of a reporter and these is no way to get any information about the illegal leaker, that is going to slow down the discovery even more. 

The great writers on evidence who I studied—and I am sure the 

Chairman remembers—Charles McCormick, who was also 

Secretary of the Navy; a great scholar on evidence, John 

Wigmore—all agree that privileges in the private context should 

not be absolute, these include priest-penitent, lawyer-client, or reporter. This system in the private litigation area has worked well. 

We have entrusted the judges. They have not always done it perfectly, but they know how to do it. 

I thank you for the time you have given me today. 

[The prepared statement of Mr. Schwartz appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Mr. Schwartz. 

Without objection, the statement from Senator Kohl will be made 

a part of the record. 

20

And we now turn to our final witness on the panel, Mr. Bruce 

Baird, senior partner in the Washington law office of Covington & 

Burling, where he specializes in white-collar defense and securities 

information. Mr. Baird had been an Assistant U.S. Attorney in 

Manhattan, handled high-profile, complex cases involving Michael 

Milken, Drexel Burnham Lambert; and from 1981 to 1986, he was 

the lead prosecutor heading a 5-year investigation into the Colombo 

crime family; bachelor’s degree from Cornell and a law degree from 

the New York University School of Law. 

Mr. Baird, we appreciate your being with us and look forward to 

your testimony. 

STATEMENT OF BRUCE A. BAIRD, PARTNER, COVINGTON & 

BURLING LLP, WASHINGTON, D.C. 

Mr. BAIRD. Thank you, Mr. Chairman and Senator Kyl. I will be 

brief. 

I think from a prosecutor’s perspective and from a defense perspective, I have some experience on both sides. I have had some 

high-profile cases in which I would have given my right arm to be 

able to go to reporters and say, ‘‘Give me your sources.’’ But it is 

a value that I think we all share that resulted in the Department 

of Justice guidelines and that results in prosecutors not being able 

to do that unless there is a really good reason. 

There was a New York Post reporter who had the Colombo organized crime family dead to rights before we did, but I could not get 

that information. There were Wall Street Journal reporters who 

knew more about Michael Milken than we did, and we could not 

get that information. But we managed to prosecute those cases. 

There are, as we all know, many investigative techniques. Subpoenaing reporters for their sources is not the only way to prosecute a case. There has been some talk here about, you know, the 

requirement to avoid shielding people from these prosecutions or 

shielding people from the clutches of the Government. That does 

not happen just because you do not get information from a source. 

You undertake other investigative techniques. 

So from a prosecutor’s perspective, I think the bill does no more 

than codify the Department of Justice’s existing policy. The one difference, as, Mr. Chairman, you remarked and as the Deputy Attorney General remarks, is that judges are now involved. That is true. 

Judges are involved, but, of course, judges are involved in many respects in this situation and in many others. We rely on judges to 

make very complicated decisions about balancing tests. We require 

that in many areas of law. We require it every day. Judges decide 

whether prejudice outweighs probative value, a very subjective 

test. 

I recall a judge who taught himself patent law and electrical engineering to decide a case, wrote a 300-page opinion full of circuit 

diagrams. 

That is the sort of thing that this Committee knows better than 

anyone else. You put judges on the bench who have that ability, 

and I do not really understand the argument that judges are incapable of deciding these questions. 

So I think from a prosecutor’s perspective, this bill will help. It 

will make the law more uniform. It will make prosecutors more 

21

able in an appropriate case to go to a court and seek a reporter’s 

sources, and the judge will have something to hang his hat on, will 

have a bill, will have text, will not be left with vague First Amendment arguments about which people differ. 

From the defense perspective, the bill is also an improvement. 

There is explicit recognition of a criminal defendant’s potential 

need for this information and for the needs of a party in civil or 

administrative litigation. And, of course, it is applicable to all Federal agencies, as, Mr. Chairman, you remarked, and not just the 

Department of Justice. 

So, in the end, I do not think this is an issue that should divide 

the Department of Justice and other prosecutors from defense 

counsel. Information is not always desired by the same people. As 

Mr. Schwartz said, sometimes private litigants want the information. Sometimes the Department of Justice wants the information. 

There should be a test, there should be judges administering the 

test, and I think this bill draws a line which is appropriate. You 

know, as was said, you cannot make everyone happy. There can be 

interpretation, much easier with a statute than with a constitutional bill. And so I think this bill in the end will improve the state 

of the law and will give both sides, both people who want the information in an appropriate case and the press, which does not want 

this information revealed in an inappropriate case, standards to go 

on. 

I want to particularly remark with respect to the Deputy Attorney General’s statement that the Department of Justice has a great 

record in the last 15 years, I think they do. But my memory goes 

back 30, and there was a time when Attorneys General and Deputy 

Attorneys General thought they knew better than anyone else what 

the law should be and were indicted and cast out of office for it. 

Having judges decide these questions is something that goes deep 

in the fabric of this country and is the most appropriate way to 

deal with the issue. 

Thank you. 

[The prepared statement of Mr. Baird appears as a submission 

for the record.] 

Chairman SPECTER. Thank you, Mr. Baird. 

Mr. Baird, you have had extensive experience in the Department 

of Justice, but not, at least according to the resume I have seen 

here, in the national security field. Do you think your observations 

that the Department of Justice would not be prejudiced apply as 

well in the national security field? 

Mr. BAIRD. Well, you are right, Mr. Chairman. I am not an expert in the national security field. I see, though, that the bill has 

exceptions in the national security area, and the only thing I understood the Department of Justice to say in response is that they 

did not want judges to make the decisions; they wanted to make 

the decisions themselves. And it seems to me judges have made decisions, as I think Mr. Olson mentioned, in the FISA context, in 

many other national security-related contexts. It has not been my 

experience, either on the defense or the prosecution side, that 

judges are incapable of making hard decisions using balancing 

tests. Quite the reverse. 

22

Chairman SPECTER. Mr. Schwartz, there are some 49 States and 

the District of Columbia which afford some privilege to reporters. 

Are the interests of your clients prejudiced in those States? 

Mr. SCHWARTZ. In some of them. There was a situation in California—and it is not a client of mine—where a company was told 

that they ought to polygraph their employees as an alternative 

source to seeking things from a reporter. They were not a client. 

And I do not think that is a very reasonable rule. It is an overly 

broad privilege. 

Most of the rules are fine. They have three factors: Is it relevant— 

Chairman SPECTER. Well, you have to cope with reporters’ privilege almost everywhere in the United States. Are you getting 

along? 

Mr. SCHWARTZ. Well, things would be more difficult if this was 

added to the mix because States might copy it. They tend to do 

that. And there is something in the mix of this standard that I 

really have not seen elsewhere, and it is beyond the three normal 

parts. You usually have relevancy. Is it relevant? Is there a reasonable alternative source? If there is, you are supposed to seek it. 

And how central is it to the case? 

But in addition here, in the private sector area there is a Department of Justice guideline which has really nothing to do with private litigation where a judge has to weigh public interest against 

public interest. And we do not face that anywhere, as far as I 

know, and that is one of the reasons I am here today. It is an additional barrier that is just not in standard evidence law or anyplace. 

It may be relevant and important with governmental things, the 

things that other witnesses are testifying about today. But it certainly not in the private sector— 

Chairman SPECTER. Mr. Schwartz, I am going to have to move 

on. 

Mr. SCHWARTZ. OK, sure. 

Chairman SPECTER. Professor Clymer, do you think the incarceration of Judith Miller was appropriate? 

Mr. CLYMER. I do not know enough facts to answer that question, 

but what I would say about this is that I think that is the wrong 

question to ask. And the reason I think it is the wrong question 

to ask is because the issue before this body is not should we give 

special privileges to reporters so that they can disobey lawful court 

orders. The question we should ask is: Will this piece of legislation 

increase the flow of information to the public through the news 

media? 

If we are going to privilege reporters, it is not because we are 

concerned about someone, a professional like Judith Miller, having 

to go to jail. It is because we are concerned whether that is going 

to have an effect on the flow of information. 

So although I can certainly sympathize with Judith Miller, a professional trying to do her job, having to go to jail, she went to jail 

for failing to comply with a lawful court order. And the real question is: If we change the law to allow her not to go to jail, not have 

to comply with a court order, is that going to increase the flow of 

information to the public? And I think the answer ultimately is no. 

23

Chairman SPECTER. Well, up until your answer, I thought it was 

a pretty good question to ask. 

[Laughter.] 

Chairman SPECTER. But maybe I am wrong. 

Mr. Olson, on a matter of oversight, would this bill have resulted 

in a different result in the Judith Miller incarceration? 

Mr. OLSON. I think it may have, because as we are learning now 

through reports in the newspapers with respect to when that information was given to journalists and the memory of the journalists 

seemed to all differ from one another, and when the special prosecutor or whatever name is given to Mr.— 

Chairman SPECTER. My time is almost up, and I want to put one 

more question to you. You have had extensive experience in the Department of Justice, and I have asked the Deputy Attorney General 

to respond to that question by somebody who was not recused. 

What are the parameters for discharging a special prosecutor? 

Whereas, in this case we have it fairly well established that there 

was no national security issue involved, and it has even been suggested that there was no crime involved, we have had some independent counsel cases which have gone on for a decade. What are 

the parameters for evaluating the special prosecutor’s conduct, say, 

in the Miller matter and in the investigation generally, which has 

led to the prosecution of Lewis Libby? 

Mr. OLSON. Well, that would be a very long answer. I think that 

if you do that oversight, you are going— 

Chairman SPECTER. There is no time limit on the answer, just 

on the question. 

Mr. OLSON. If you do that oversight, you are going—in the first 

place, this appointment was not under the independent counsel 

statute. This appointment of Mr. Fitzgerald was under the inherent 

authority by the Attorney General, which is set forth in a statute 

to delegate any of the functions in the Department of Justice to 

anybody that the Attorney General wants to do. So the Attorney 

General here has the power to dismiss and remove this special 

prosecutor at his pleasure. 

Chairman SPECTER. Would cause be required? 

Mr. OLSON. Not as I understand the decision by the Attorney 

General to do this delegation in the first place. I think it is under 

a statute, 28 U.S.C. 505 or something like that, that allows the Attorney General to delegate any of the authority in the Department 

of Justice to any other person in the Department of Justice. So I 

do not think cause would be required. It is a political problem that, 

you know, if there is going to be a dismissal. 

But to get back to your question, it would seem to me you might 

start with the concept of when the appointment was made and how 

much collectively was known with respect to what was the nature 

of the crime. I think you asked in your question something about 

whether or not the remainder of the prosecution at that interval 

was necessary to determine whether or not national security was 

implicated, whether a covert agent fitting the standard of that particular statute was involved, and whether—and you made the point 

in your earlier question. It is one thing to subpoena reporters with 

respect to national security concerns. It is another when it is the 

whole range of other crimes in the Federal statutes. And those are 

24

things that this statute would address by requiring some concentration on the need for it, the importance of the information 

from the reporter, whether the need for the information from the 

reporter would outweigh the public interest that is embodied in the 

First Amendment and so forth. So that would be a relevant question, but I think that there would be a lot of other things that you 

would want to ask as well. 

Chairman SPECTER. Thank you very much, Mr. Olson. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. 

Mr. Olson, let me ask you, would you agree or stipulate that 

Paul McNulty is a knowledgeable and honest and expert public 

servant on the matters to which he testified today? 

Mr. OLSON. Absolutely. I have the greatest respect for Paul 

McNulty. 

Senator KYL. I knew you did and that you would. It seems to me 

there is a direct contradiction between what you say and what he 

says. In your statement you say, ‘‘The Act does not compromise national security or burden law enforcement efforts.’’ In view of his 

testimony to the contrary, can you really make that broad a statement? 

Mr. OLSON. Well, I believe that a lot of attention has been given 

to that issue, and I think you pointed this out in your questions—

or maybe Senator Schumer did, between the earlier version of this 

statute, which was the subject of testimony last year, and there 

were questions—I was here for that testimony and— 

Senator KYL. Forget about that. My earlier questions to him 

were all from the current version of the statute. 

Mr. OLSON. Yes. 

Senator KYL. Which elicited a response from him that there were 

indeed problems. 

Mr. OLSON. I respectfully disagree. I think that the issues have 

been addressed in Section 9. What I think Mr. McNulty did not acknowledge is that there is going to be judicial analysis of this process, anyway. The Department standards do not require the Department to go to a judge. But what is going to happen is the reporter 

is going to decline to respond to the subpoena. He is going to make 

a motion to quash. There is a going to be a motion before a judge 

to hold the reporter in contempt for not responding to the subpoena, and it is going to be before a judge. So a judge is going to 

be considering these questions: whether there is a common law 

privilege, whether there are First Amendment implications. And 

the Department is going to say it is a national security case and 

it is very important. 

And so I think Mr. McNulty is incorrect, respectfully, because I 

think these matters are going to be before a judge anyway. And 

judges do consider national security considerations when they deal 

with search warrants, under Title III and FISA. 

Senator KYL. You know our time constraints here. 

Mr. OLSON. Yes.

25

Senator KYL. This statute, I think you would have to concede, 

would make it more difficult, though, given the fact that it statutorily establishes a privilege beyond the current common law privilege, or I gather there is no need for it. 

Mr. OLSON. Well, I am not sure that it does. As the Chairman 

pointed out, there are four or five circuits that recognize some level 

of common law privilege. There are several circuits that do not. 

Senator KYL. So you are not sure that this goes beyond the currently recognized privilege. 

Mr. OLSON. Well, the problem, as I pointed out, is there is a 

hodgepodge and it is not clear what the standards are. The Supreme Court ultimately would have the power to determine that 

there were a common law privilege. We urged the Supreme Court 

to take the case in—the Wen Ho Lee case on behalf of a reporter, 

Pierre Thomas. It may be that the Supreme Court might recognize 

a common law privilege, and then the question is: Should it all be 

decided by judges, or should the Congress of the United States exercise its judgment as to the standards? And I think the case is 

strong that Congress should— 

Senator KYL. Let me ask you, Professor Clymer, the third or 

fourth point that you made, Professor, was that there are so 

many—and it follows directly what Mr. Olson just said. The legislation is subject to so many tests and exceptions that a reporter cannot guarantee the privilege to the source at the time he makes it. 

Would you expand on that a little bit and explain why in your 

view that renders this a difficult privilege to implement? 

Mr. CLYMER. The problem is this: The benefits from the privilege 

have to occur when the conversation occurs between the reporter 

and the source, because if the objective of the legislation is to increase the free flow of information, that is when the information 

flows. And what the source, if he is reluctant to give the information, wants is a guarantee or an assurance that his identity will 

remain confidential. 

Under present law, clearly, you cannot make that assurance. But 

under this legislation, you cannot make that assurance either because you do not know at the time you have that conversation 

which exception may apply, who is going to ask for the information, 

whether it will be in Federal or State court, or what a judge is 

going to do under one of these open-ended, unstructured balancing 

tests that are in this legislation. 

And, by the way, I think it is worth pointing out that these balancing tests do not appear in the Federal regulations that DOJ follows. They do not appear in the standard common law tests. These 

balancing tests that are in this legislation are, to my knowledge, 

brand new. I have not seen them elsewhere. 

And so this creates another layer of uncertainty so the reporter 

cannot give the sorts of assurances. So what we get from this legislation is all the costs—additional litigation, loss of the truth—without the benefits because the reporter still cannot give certain guarantees of confidentiality. 

Senator KYL. Thank you very much. With no more time here, I 

will turn it back. 

Chairman SPECTER. Do you want to proceed with another question or two, Senator? 

26

Senator KYL. Well, why don’t I do this. I had two or three questions of Mr. Olson, one of Mr. Schwartz, and I think one more of 

Mr. Clymer. So what I will do is submit those for the record. 

Chairman SPECTER. OK. Thank you very much, Senator Kyl. 

Senator Brownback? 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you, Mr. Chairman. I apologize for 

not being here at the outset or hearing the testimony of the witnesses. I was in another hearing and presiding earlier. Thank you, 

though, for holding the hearing, and it is an important hearing. 

I want to step back on this because there seems to me to be a 

troubling confluence of things that are happening right now, and 

we are trying to address the things that—a lot of the things that 

I am concerned about do not seem like we are addressing here. We 

have got these security leaks that are taking place, and in my estimation, in this war on terrorism probably our most valuable tool 

is information, is our ability to gather information. And we need 

this in this war on terrorism. 

I used to chair the Immigration Subcommittee, and one of the 

things that shocked me was the number of legal entries we have 

got a year into the United States. We have nearly 250 million legal 

entries a year into the United States. And somebody—probably several people in that group seek to do us harm. But it is not like finding a needle in a haystack. This is a needle in a hay field. We have 

got to be able to really get some information, lawfully, legally, and 

in ways that the American public support it. And yet what we are 

seeing is more national security leaks taking place. 

And then recently—and I do not know that this ties into it, but 

it really strikes me as odd that in the Judith Miller case we have 

people being pursued for some period of time, her going to jail, and 

then somebody here 3 years later holds his hand up and says, 

‘‘Well, OK, yes, I am the one that did this.’’ And I know the gentleman that said that, and this just really strikes me as odd taking 

place at this point in time. 

I appreciate the panelists and their thoughtfulness in putting 

forward their testimony, but my question to you is: Given that atmosphere and our need to maintain security in the United States 

today in a lawful fashion, a fashion that the public supports, are 

there things that we should be doing to further penalize leakers of 

national security information, to say, you know, OK, reporters 

should be able to have access to legitimate knowledge? But if somebody is putting out national security information, there needs to be 

a legitimate penalty with this, a significant penalty with this, if 

this is wrong to put out. 

This is a learned panel, and this is not what you came here to 

testify about, but I am sure you have thought about this angle of 

it as well. Would anybody care to comment about that? 

Mr. CLYMER. Can I make two observations, Senator? 

Senator BROWNBACK. Yes. 

Mr. CLYMER. One is that I think this legislation, at least in some 

cases, will do exactly the opposite of what you suggest. In other 

words, it will immunize people who make those sorts of leaks, beVerDate 0ct 09 2002 15:24 Apr 04, 2007 Jkt 034205 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34205.TXT SJUD1 PsN: CMORC
27

cause it will require, in order to do an investigation of those people, 

that the Department of Justice has to satisfy certain requirements 

that a judge may determine for one reason or another are not satisfied, thereby preventing access to information that will result in 

prosecution of that sort of person. So I guess that is the first observation to make because I think that in some respects this legislation goes exactly in the opposite direction of what you are talking 

about. 

The second observation is I think your concerns are legitimate, 

but I think they should be expanded. There are leaks of nonclassified information that could be extremely harmful to law enforcement in a variety of ways that are not as strongly addressed in this 

legislation as leaks of classified information. And it seems to me 

that what would be a better approach would be to have any privilege not applicable whatsoever if the disclosure of the information 

itself constitutes a Federal crime, be it classified information, 

grand jury information, or other sorts of information the disclosure 

of which violates Federal criminal law. 

Senator BROWNBACK. And the disclosure of which by the individual leaking and the newspaper entity that discloses it? 

Mr. CLYMER. Well, I do not think you have to reach the conclusion that the newspaper itself is engaged in criminal activity, as 

long as the disclosure to the newspaper is a violation of the law. 

I think Congress has made determination that that is something 

that is very serious and we should not effectively immunize people 

who do that by foreclosing any effective investigation of the crime. 

Mr. BAIRD. Senator, I agree with the last statement on penalties. 

You could create legislation with more penalties. But I disagree 

with the statement that this legislation immunizes leakers. I think 

as a former prosecutor, there are many ways to investigate crime, 

and the first resort is never to go to a reporter and ask for sources. 

These are crimes—I agree with you, Senator, that these are serious 

crimes and they should be investigated, and they can be investigated. There are many ways to investigate them beyond asking 

a reporter for his sources. 

Senator BROWNBACK. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Brownback. 

Senator Kyl has asked that I include in the record a letter dated 

June 21, 2006, from Bruce Josten of the Chamber of Commerce to 

me and a letter from a group of trade associations dated today, 

September 20th, to Senator Leahy and myself, and they will be included in the record. 

We thank you very much for coming in, gentlemen. Staff has advised me, on an unrelated matter, that Mr. Schwartz has a good 

imitation of me. 

Mr. SCHWARTZ. [Imitating Chairman Specter] I don’t think I can 

do that here, Senator. That would just be wrong. 

Chairman SPECTER. Well, I have to agree with you about that. 

[Laughter.] 

Chairman SPECTER. We are concluded. 

[Whereupon, at 11:02 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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