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46–829 PDF 2009

S. HRG. 109–1040 

REPORTERS’ PRIVILEGE LEGISLATION: AN ADDITIONAL INVESTIGATION OF ISSUES AND IMPLICATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

OCTOBER 19, 2005 

Serial No. J–109–44 

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 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 70 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 2 

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

statement .............................................................................................................. 100 

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

WITNESSES 

Clymer, Steven D., Professor of Law, Cornell Law School, Ithaca, New York ... 6 

Davenport, Dale, Editorial Page Editor, The Patriot News, Harrisburg, Pennsylvania ................................................................................................................. 25 

diGenova, Joseph E., Founding Partner, diGenova and Toensing, LLP, Washington, D.C. ........................................................................................................... 4 

Gordon, Anne K., Managing Editor, The Philadelphia Inquirer, Philadelphia, 

Pennsylvania ........................................................................................................ 23 

Miller, Judith, Investigative Reporter and Senior Writer, The New York 

Times, New York, New York ............................................................................... 19 

Rosenberg, Chuck, U.S. Attorney for the Southern District of Texas, on behalf 

of the department of Justice, Houston, Texas ................................................... 3 

Westin, David, President, ABC News, New York, New York .............................. 21 

QUESTIONS AND ANSWERS 

Responses of Steven Clymer to questions submitted by Senator Durbin ........... 33 

Responses of Dale Davenport to questions submitted by Senator Leahy ........... 37 

Responses of Joseph diGenova to questions submitted by Senator Durbin ........ 39 

Responses of Judith Miller to questions submitted by Senator Durbin .............. 40 

Responses of Chuck Rosenberg to questions submitted by Senators Kyl, Leahy 

and Durbin ............................................................................................................ 41 

Responses of David Westin to questions submitted by Senators Leahy and 

Durbin ................................................................................................................... 51 

SUBMISSIONS FOR THE RECORD 

American Bar Association, Washington, D.C., statement .................................... 56 

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

statement .............................................................................................................. 62 

Davenport, Dale, Editorial Page Editor, The Patriot News, Harrisburg, Pennsylvania, statement .............................................................................................. 73 

diGenova, Joseph E., Founding Partner, diGenova and Toensing, LLP, Washington, D.C., statement and attachment ............................................................ 80 

Gordon, Anne K., Managing Editor, The Philadelphia Inquirer, Philadelphia, 

Pennsylvania, statement ..................................................................................... 96 

Miller, Judith, Investigative Reporter and Senior Writer, The New York 

Times, New York, New York, statement and attachment ................................ 102 

Rosenberg, Chuck, U.S. Attorney for the Southern District of Texas, on behalf 

of the Department of Justice, Houston, Texas, statement and letter .............. 109 

Westin, David, President, ABC News, New York, New York, statement ........... 123 

(1) 

REPORTERS’ PRIVILEGE LEGISLATION: AN 

ADDITIONAL INVESTIGATION OF ISSUES 

AND IMPLICATIONS 

WEDNESDAY, OCTOBER 19, 2005 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:45 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Specter, Kyl, DeWine, Sessions, Cornyn, Feinstein, and Durbin. 

Chairman SPECTER. Good morning, ladies and gentlemen. 

The Judiciary Committee will now proceed with our second hearing on the issue of reporters’ privilege. 

I regret our slight delay in starting this hearing. We have made 

it a point on the Committee to be very punctual in beginning, but 

at the moment we are deeply involved in the confirmation proceedings of Ms. Harriet Miers, and there are some issues we had 

to consider. We have met together with Senator Leahy and the 

leadership on scheduling matters, and there was a need for the 

Democrats to meet separately, which they did yesterday, and Republicans have just met, so it has run slightly into the 10:30 starting time. So to repeat, I regret keeping people waiting here. 

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

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. The issue of the reporters’ privilege has 

come into very sharp national and international focus with the incarceration of Ms. Judith Miller, who for 85 days was in a detention center in Virginia. 

My staff and I, among many others, visited her there to try to 

gain some insights into the entire situation and there have been reports about a chilling effect across the country on reporters, and we 

are taking up the legislation, which has been introduced in the 

House and Senate by Senator Lugar on our body, and by Representative Pence in the House of Representatives, to decide 

whether there ought to be a privilege, and if so, to what extent it 

ought to be extended. 

The issue has been a troublesome one since 1972 when the Supreme Court in Branzburg v. Hayes said that neither the First 

Amendment or common law exempts members of the press from 

testifying before a grand jury in criminal proceedings. That deciVerDate Nov 24 2008 10:24 Feb 27, 2009 Jkt 046829 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46829.TXT SJUD1 PsN: CMORC
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sion has created some confusion, contributed in large measure to 

the concurrence of Justice Powell. Five circuits have applied 

Branzburg to prevent journalists from withholding information. 

Four of the circuits have a qualified privilege in civil cases. Nine 

of the twelve circuits apply a balancing test. And on the State level, 

31 States plus the District of Columbia have enacted reporters’ 

shield statutes, and 18 States have recognized such a privilege at 

common law. 

There is no doubt about the value of investigative reporting to 

the public interest in exposing corruption, malfeasance, misconduct, waste, and the oft-quoted comment by Jefferson cannot be 

repeated too often, if he really made it, that he would prefer newspapers without Government as opposed to Government without 

newspapers. That is quadrupled multiplied hearsay. We talk about 

super precedents and super-duper precedents. That one is worth 

repetition however many times it has been said. 

There are weighty considerations on law enforcement, on their 

point of view, and national security interests. All of those factors 

have to be taken into account by the Judiciary Committee and then 

by the full Senate, and then by the Congress. 

I am going to yield back almost a full minute. We will have other 

of the Democrats joining us. Senator Feinstein, this is extemporaneous, but that does not pose any problem. Would you care to 

take the ranking member’s responsibility for an opening statement? 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Well, I do not have an opening statement 

prepared, Mr. Chairman, but let me just say this, because Mr. 

Rosenberg is going to be testifying, and I am aware of the position 

of Justice. I hope he will address the national security provision of 

the shield law which was submitted to us, which we had the prior 

hearing on. 

The problem that I have is I do think it is very legitimate before 

a Federal grand jury in an instance of national security, and not 

necessarily when the challenge is immediate, but when it is near 

or present, that there be some ability to get information if a reporter has it, and so I would be most interested in his comments 

along those lines. 

And I thank you very much, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Our first witness is Mr. Chuck Rosenberg, United States Attorney for the Southern District of Texas. He has served as Chief of 

Staff to Deputy Attorney General James Comey, Counselor to the 

Attorney General John Ashcroft, and as Counsel to FBI Director 

Robert Mueller. We had hoped to have Mr. Comey at the last hearing, and we are glad to have you here today, Mr. Rosenberg, and 

look forward to your testimony. 

3 

STATEMENT OF HON. CHUCK ROSENBERG, U.S. ATTORNEY 

FOR THE SOUTHERN DISTRICT OF TEXAS, ON BEHALF OF 

THE U.S. DEPARTMENT OF JUSTICE, HOUSTON, TEXAS 

Mr. ROSENBERG. Thank you, Mr. Chairman, members of the 

Committee. It is an honor to testify today. 

For 33 years the Department of Justice has adhered scrupulously 

to a demanding set of regulations that govern our issuance of 

media subpoenas. We adhere to these regulations to balance two 

critical interests: first to protect the vibrant press, free to gather 

news on important issues, to use confidential sources, and to act 

as a check on Government; and second, to enforce Federal criminal 

law, to protect national security and vital secrets and the public 

safety. And through Republican and Democratic administrations 

alike, our internal regulations have enabled us to balance those interests on a case-by-case basis and to seek information about confidential sources from the press only when it really, really matters. 

For this discussion, Mr. Chairman, I believe the numbers are 

useful. Over the last 14 years, which is the period of time for which 

we have computerized records, we have issued subpoenas to the 

media seeking confidential sources 12 times, 12 times in 14 years, 

less than one confidential source subpoena per year. And each one 

of those 12 subpoenas was reviewed carefully by senior career and 

political officials in the Department and personally approved by the 

Attorney General. 

So I think we must ask what is broken about the way we are 

handling matters involving subpoenas to the media. We rarely 

issue subpoenas to the media seeking information about confidential sources, and when we do, it is only after painstakingly careful 

review and meticulous adherence to our internal guidelines. 

We should not enter into this debate believing that the First 

Amendment is under assault by the Department of Justice. It 

manifestly is not. In fact, I believe any serious observer of the Department of Justice would tell you that our track record, our strict 

adherence to our own guidelines, and our five levels of internal review are not the problem. Rather, the overwhelming number of 

subpoenas issued to the media for confidential source information 

arises in the context of private litigation, and of course, when we 

are not a party to the litigation, our guidelines do not apply. We 

play no role at all. In short, I do not see anything in our work that 

justifies discarding 33 years of careful practice which has served 

the media and the Nation well. 

The proposed legislation is problematic for many reasons, which 

I discuss in detail in my written testimony, but here I would like 

to briefly highlight certain key points, including addressing the 

concerns that Senator Feinstein has raised. 

First, it imposes inflexible mandatory standards in place of our 

existing flexible, prudent guidelines; and second, in the most urgent circumstances it prevents us from getting information quickly 

when we need it the most to protect the public. For example, the 

only exception in the bill to obtain confidential source information 

comes in the narrow category of cases involving imminent and actual harm to national security. That provision, I submit, simply 

does not work. What of the case where harm is imminent, but the 

harm is not to national security? What happens when confidential 

4 

source information could help us recover a child that has been kidnapped. Under the proposed bill, that confidential source information would be off limits to us because that case is not a national 

security case. 

What of the case where national security is at risk but we cannot 

demonstrate that harm is imminent? The exception, I submit, is 

both too little and too late. 

I also would encourage the media to question whether given the 

restrained approach of the politically accountable Justice Department leadership over the past 33 years, whether shifting the focus 

of this exercise to the Judicial Branch would produce more or perhaps less protection for journalists and their sources? 

I think this is a very important discussion, and I have great respect for the people who have joined the debate. Simply stated, the 

notion that the Justice Department is the problem and that this 

legislation is the solution, I submit, is plain wrong. 

I am a career prosecutor. I participated in this process at the Department. I have seen how it works. I know how meticulous we are 

in our reviews. I know how rarely we seek information from the 

press about confidential sources, and I know that when we do it we 

do it for the right reasons. We believe that we have been doing this 

the right way for decades. We strongly oppose this bill as it applies 

to our work. 

I thank you. I look forward to answering your questions. 

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

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

I am going to ask the other two witnesses who are going to be 

testifying against the shield law to come forward at this time, Mr. 

Joseph diGenova and Professor Steven Clymer, if you would come 

to the witness table, so that when we begin our round of questioning, we will question all three witnesses who are appearing in 

opposition to the proposed legislation. 

Our next witness, Mr. Joe diGenova, is well known to the Committee and to the Senate generally. He served as Counsel to this 

Committee, also to Government Affairs and the Select Intelligence 

Committee, and Chief Counsel and Staff Director for the Senate 

Rules Committee, was the United States Attorney for the District 

of Columbia for 5 years in the 1980’s, and was Independent Counsel, has a long resume of being involved in some major investigations and prosecutions. 

Thank you for joining us, Mr. diGenova, and the floor is yours. 

STATEMENT OF JOSEPH E. DIGENOVA, FOUNDING PARTNER, 

DIGENOVA AND TOENSING, LLP, WASHINGTON, D.C. 

Mr. DIGENOVA. Thank you, Mr. Chairman. 

Let me just say at the outset that my position may be a little 

bit more nuance than opposition to the bill. I actually see a need 

for the Congress to address this question. In my testimony I have 

indicated that I oppose an absolute privilege because I do not believe in common law there should be any absolute privileges for the 

very reason that Mr. Rosenberg gave, that there may be facts and 

circumstances warranting the piercing of any privilege, including 

5 

the attorney-client privilege and a journalist privilege if this Committee chose to establish one under Federal common law. 

I do believe, however, that if in fact the Committee decides to go 

down this route, it needs to establish some procedural safeguards 

for the enforcement of these rights for a journalist, the same way 

I believe they should it for lawyers. 

Mr. Rosenberg has testified that the Department over the years 

has done a superb job of supervising its internal guidelines, and 

that there is no reason to address this question. My proposal would 

be that given the purported success of these guidelines in the Department using them, that Congress should have no fear in enacting those guidelines into law, and making them a legal requirement. Under their own terms, the Justice Department guidelines 

create no enforceable legal rights. 

I believe that notwithstanding the purported success of the Department in restraining itself in issuing subpoenas, since it says 

that it has no problem complying with these guidelines, at a minimum what the Committee should do is adopt those guidelines as 

legislation, and consistent with Mr. Rosenberg’s suggestion, modify 

the legislation to take into account specific instances to avoid what 

I call a manifest in justice, or to deal with manifest necessity such 

as securing information from a journalist about the location of a 

kidnapped child. All of us understand the necessity for that, and 

the circumstances which would lead a judge to, in a balancing test, 

certainly agree that a reporter should be required to disgorge that 

information. In addition, his national security exception, where the 

Government might not be able to prove the actual imminence of a 

threat, that can be handled through evidentiary hearings and 

through presumptions which this Committee could draft into law. 

What I think the Committee needs to address in dealing with 

this privilege is what happens on the ground in a courtroom. And 

what happens on the ground in a courtroom, particularly in the 

grand jury context, is that the person being subpoenaed, whether 

it is a lawyer or a journalist, does not know what evidence the 

prosecutor is telling the judge about. When you address this question—and I strongly urge you to adopt the Justice Department 

guidelines and put them into law—the Department should have no 

objection to that since it says it complies with it. In addition to 

doing that, you should adopt rules under the Federal Rules of 

Criminal and Civil Procedure for the manner in which hearings are 

to be conducted in these key areas, whether it is a journalist or a 

lawyer. So that when an attempt is made to pierce a vital privilege 

under U.S. common law, there are safeguards which allow the person being subpoenaed to have access to at least some of the evidence that is being used against them to force the vitiation of the 

privilege. This is a problem in the grand jury context which has 

never been addressed. It was evident from the published reports 

about the Judith Miller case and the Matt Cooper case that the attorneys representing them were operating vastly in the dark about 

the nature and extent of the information that was being used to 

compel them to testify. 

Now, there may be reasons in a given case that a judge would 

order that that information not be turned over to the other side so 

that a true adversarial proceeding could occur to determine whethVerDate Nov 24 2008 10:24 Feb 27, 2009 Jkt 046829 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46829.TXT SJUD1 PsN: CMORC
6 

er the privilege should be vitiated, but those would be rare. That 

might happen in a national security case, but I submit to you that 

this Congress is perfectly capable of calibrating the circumstances 

under which information should be turned over to someone who is 

being subpoenaed. In the case of a reporter I think it is vitally important, and obviously in the case of a lawyer, having been subpoenaed myself and been threatened with jail, I can assure you that 

when you do not know, as our attorney said in the Third Circuit, 

what the other side has, you are there with a hammer trying to 

hit a pinata to find out what is on the inside. 

So I would urge this Committee to adopt the Justice Department 

guidelines into law, create procedural safeguards for any hearings 

around them, and finally, require sworn testimony about the basis 

for the crime. 

Thank you, Mr. Chairman. 

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

Chairman SPECTER. Thank you, Mr. diGenova. 

Our next witness on this panel is Mr. Steven Clymer, who 

worked as a Pennsylvania Assistant District Attorney, and 7 years 

as an Assistant U.S. Attorney for the Central District of California, 

been on the Cornell Law School faculty since 1995. Thank you very 

much for joining us today, Professor Clymer, and we look forward 

to your testimony. 

STATEMENT OF STEVEN D. CLYMER, PROFESSOR OF LAW, 

CORNELL LAW SCHOOL, ITHACA, NEW YORK 

Mr. CLYMER. Thank you for inviting me today. 

If Congress enacts a reporters’ privilege, it should be more limited than the proposals currently pending before this body. I want 

to describe two ways I think it has to be limited if there is to be 

a reporters’ privilege. 

First of all, a Federal reporters’ privilege that protects criminal 

disclosures to reporters would undercut important Federal criminal 

statutes. Most disclosures to the news media do not in and of themselves violate Federal criminal laws. Unfortunately, some disclosures to the news media do. These laws are designed to safeguard 

information, that if improperly disclosed could jeopardize not only 

national security, but the safety of law enforcement officials, such 

as information about whether a search warrant is going to be executed. It could undermine criminal investigations, and it could destroy the reputations of innocent people. 

Some proposals for a Federal reporters’ privilege, including S. 

1419, draw no distinction between legal disclosures and illegal disclosures. Proposals like this would help to conceal the identity of 

sources whose disclosures constitute Federal felonies. In this regard the proposed privilege is more extensive than other well-recognized privileges such as the attorney-client privilege which has 

a crime-fraud exception. Any reporters’ privilege that is enacted 

should contain a similar exception. 

Failure to exempt illegal disclosures from coverage would conflict 

with the very Federal laws that criminalize those disclosures. The 

privileges would encourage the disclosures that the criminal statutes are meant to deter. That sort of contradictory message from 

7 

Congress can only breed disrespect for the laws criminalizing those 

sorts of disclosures. 

In addition, failure to exempt illegal disclosures effectively would 

immunize people who made those disclosures as long as they disclosed it to a member of the news media. If investigators ask the 

source whether he made the disclosure, the source could assert the 

Fifth Amendment privilege, thereby curtailing that method of investigation. If there was a reporters’ privilege that protected illegal 

as well as legal disclosures, it would prevent any investigator 

speaking to the reporter about the source of the leaks. As a result, 

no one could determine who leaked the information or prove it in 

court. Such an outcome would signal that illegal disclosures of classified or otherwise sensitive information such as wiretap information, tax information, grand jury information, no matter how harmful to national security, to police safety, to law enforcement interests or to the personal privacy of innocent people, are immune from 

criminal prosecution as long as they are made to a recipient who 

could qualify as a reporter under the privilege. 

In this regard I think it is worth noting that S. 1419 has a definition of ‘‘covered person’’ who could be potentially broad enough 

so that a disclosure of sensitive or classified information to an 

Internet blogger would be covered. 

My second point, Federal reporters’ privilege should not guard 

against invalid assertions of the privilege. In order to do so, courts, 

not reporters, should determine whether the privilege applies. 

There is no good reason to conceal the identity of the source who 

does not want to be kept secret. Any reporters’ privilege should 

apply only if some preconditions are met, namely that the source 

has requested an assurance of confidentiality and has received such 

an assurance, and later has not waived any confidentially. I note 

in passing that S. 1419 is flawed in this regard as well. It applies 

even if the source has never sought confidentiality, never received 

confidentiality, and has in fact waived confidentiality. 

Other privileges have preconditions like this, and if a witness asserts the privilege, the opponent of the privilege has the right to 

have a court make a determination whether the preconditions have 

been met. Courts, not witnesses in other contexts, decide whether 

a privilege applies. 

The same should hold true for any reporters’ privilege. Recent, 

widely publicized events demonstrate that courts and litigants 

should not be required to accept reporters’ assertions of the privilege at face value. In Providence, Rhode Island, despite a court 

order, a reporter named Jim Taricani refused to disclose the identity of a source. After being held in contempt of court, the source 

came forward and said he had never asked to be confidential in the 

first place. Taricani disputes that claim. 

Here in Washington, Judith Miller refused to comply with a 

court order requiring her to testify before a Federal grand jury 

about a source. After she had been held in contempt and spent 85 

days in Federal custody, she claimed that her source finally had 

given her permission to reveal his identity, but both the source and 

his lawyer dispute that account, saying that they had waived confidentiality long ago. It is not clear why the reporters’ claims for 

8 

the need for confidentiality in these cases were contradicted by 

their own sources. 

What is clear, though, is that those assertions should not be accepted at face value. If they are, we would stand to lose probative 

evidence for no good reason. Instead, like other privileges, courts, 

not witnesses, should determine the existence of the privilege. 

In conclusion let me say that the free flow of information to reporters clearly benefits society, but it comes at a price if there is 

a privilege that is necessary to guard it. The price is a significant 

one, limits on the truth-seeking functions of both grand juries and 

courts. Those limits threaten to impair efforts to achieve justice in 

important matters, and they should be considered very carefully 

before deciding the scope of any reporters’ privilege. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Professor Clymer. We 

will now begin our customary 5-minute rounds. I notice, Professor 

Clymer, in your resume, you were Pennsylvania Assistant District 

Attorney. Where? 

Mr. CLYMER. Philadelphia, sir. 

Chairman SPECTER. Philadelphia. Was that after my time or before my time? 

Mr. CLYMER. It was after your time, sir. 

Chairman SPECTER. I am glad to establish the chronology. 

Mr. CLYMER. I was proud to serve in the office that you ran, sir. 

Chairman SPECTER. Thank you. That is the best job in the world, 

being an Assistant District Attorney, especially in Philadelphia 

County. 

Mr. diGenova, you said you were threatened with jail. Did you 

go to jail? 

Mr. DIGENOVA. We did not, Your Honor. My— 

Chairman SPECTER. Who is this ‘‘we?’’ 

Mr. DIGENOVA. My law partner and I, Victoria Toensing. We did 

not go to jail because we challenged the subpoena and moved to 

quash, lost in the district court— 

Chairman SPECTER. You did not go to jail and you did not succumb to the threats. 

Mr. DIGENOVA. We did not, Your Honor. We went to the Third 

Circuit where we won, and the history of that is what has led me 

to be concerned about the way— 

Chairman SPECTER. That is enough. 

[Laughter.] 

Chairman SPECTER. I only have 5 minutes. 

Mr. DIGENOVA. Yes, sir. 

Chairman SPECTER. Mr. Rosenberg, as Professor Clymer has already noted, I was a prosecuting attorney. It would have been very 

easy to go to newspaper reporters, would have made it much simpler for me to conduct investigations, but I got along. 33 States 

have shield laws, 18 a common law. How can the States get along 

respecting reporters’ privilege, and the Federal Government cannot? Are the States just not doing their job or are you so much 

more effective? 

9 

Mr. ROSENBERG. Not at all. That is an excellent question, Senator. First of all, 36 of the States have a qualified privilege, not absolute. But more importantly, the Federal Government— 

Chairman SPECTER. Will you stop on qualified? That is an area 

worth exploring. I do not know that we are going to grant any absolute privileges. We are just in the middle on the Roberts’ hearings of the deliberative process privilege, which is qualified. But 

here you have a reporter who is in jail for 85 days, and millions 

of Americans were wondering why. There may be a very good reason why she was in jail. I am one of those who was wondering why 

she was in jail, and I asked Ms. Miller, and she could not tell me 

why she was in jail. 

This Committee is in the process of seeking to find out, as a matter of our oversight, from the Special Prosecutor why she was in 

jail. What were the factors of such great importance to have a reporter in jail for 85 days, and to have an obvious chilling effect on 

reporters elsewhere? Whether they should have been chilled or not, 

there is no doubt that they were chilled. 

Congress has very, very substantial oversight authority with respect to legislation and with respect to investigations, and so far 

our efforts to find out what is behind the proffer of the Special 

Prosecutor, have gone to no avail. This Committee is not finished 

on its oversight responsibilities with respect to this matter as to 

what is the reason for what has occurred. And when Attorney General Gonzales sat where you are sitting, we went over in great detail the authority for this Committee’s oversight authority. It does 

not exactly apply to a Special Prosecutor because he stands in a little different spot, but I think no higher than the Attorney General. 

But if all the States can get along with a qualified privilege at 

least, why not the Federal Government? 

Mr. ROSENBERG. That is an excellent question, Senator. 

The Federal Government, I submit, has a uniquely different role, 

responsible for conducting international diplomacy, waging war, 

classifying information. The State of Pennsylvania, for instance, 

Commonwealth—excuse me—would not classify a document as secret or top secret. It does not contain, it does not possess, it does 

not generate, it— 

Chairman SPECTER. None of that is involved in the Judith Miller 

case. 

Mr. ROSENBERG. I do not know what specifically is involved in 

the Judith Miller case, but if you ask, Senator, why this is different 

than the States, why the State analogy is inapt— 

Chairman SPECTER. Pardon me for interrupting, but I have got 

14 seconds left. 

[Laughter.] 

Chairman SPECTER. And I stop when my red light is on. I expect 

everybody else to also. 

But why should the presiding judge not make an inquiry as to 

what the Special Prosecutor is after and balance that against 85 

days in jail? 

Mr. ROSENBERG. May I have permission to answer that? 

Chairman SPECTER. Oh, no. You are directed to answer that. 

[Laughter.] 

10 

Mr. ROSENBERG. They will both work, Mr. Chairman. Again, I do 

not know the specific facts of that case. I have not learned them. 

Mr. Fitzgerald is a friend of mine, but I have not discussed the 

case with him. I have studiously avoided it. However— 

Chairman SPECTER. Do you think it would have done you any 

good if you had not studiously avoided him and tried to discuss the 

case with him? 

Mr. ROSENBERG. I do not know. 

Chairman SPECTER. Do you think he would tell you more than 

he would tell me? 

Mr. ROSENBERG. Probably not. 

Chairman SPECTER. I agree. Go ahead, Mr. Rosenberg. 

Mr. ROSENBERG. But, Mr. Chairman, we have a unique responsibility. As Professor Clymer noted, when confidential, secret, top secret information is leaked, that is not a violation of Pennsylvania 

law or Ohio law or the law of any State. It is a violation of Federal 

law. Because we have unique responsibilities to protect the national security and to safeguard our Nation’s secrets, the fact that 

there may be a State privilege does not quite answer the question 

of whether there should be a Federal privilege. 

Chairman SPECTER. Thank you, Mr. Rosenberg. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Mr. Rosenberg, let me refer to page 2 and 3 of the bill, the Dodd 

bill, which essentially has the exceptions. What problems do you 

have on those pages, the national security and the law enforcement? 

Mr. ROSENBERG. Senator, there are several problems that I see. 

First, by throwing this open to the courts, we are going to have circuit-by-circuit determinations, for instance, of what ‘‘imminence’’ 

means, what is national security, who is and who is not a covered 

person. Somebody could be covered in the Third Circuit but not in 

the Fourth. Some set of facts could be construed to be imminent 

in the Fifth Circuit but not in the Sixth. 

The fact is that we make a very careful determination at the Department of Justice, and we draw on 33 years of experience to do 

that, and as I mentioned, have only issued these subpoenas in a 

very small number of cases, and I refer now to confidential source 

subpoenas. 

The problem is that if you throw it open to the courts, number 

one, you will have those varying interpretations inevitably. But 

there is another problem and I think it is just as pressing. 

Senator FEINSTEIN. This is your argument then—I do not mean 

to interrupt you—but to have no bill at all; is that right? 

Mr. ROSENBERG. That is right. 

Senator FEINSTEIN. How would you feel if Mr. diGenova’s codification of your procedures were made into law? 

Mr. ROSENBERG. Not much better, Senator. 

Senator FEINSTEIN. Because of the differential between courts? 

Mr. ROSENBERG. Yes, in part, but there is another problem. One 

of the things that we can do, if we need to, is move very fast. We 

do not do it often. As my former boss, Jim Comey said, ‘‘We often 

move at the speed of wood.’’ But when we need to move fast, we 

can. And the problem is that if you have to go to court—and most 

11 

of the time with the things we do, we of course do go to court. But 

if you have to go to court in an imminent harm situation, we do 

not know how long that is going to take, whether it is appealed, 

how many layers it goes up. We need to be able to move. 

Senator FEINSTEIN. Can I stop you there? 

Mr. ROSENBERG. Yes. 

Senator FEINSTEIN. I would like to have Mr. diGenova respond 

to that, and Dr. Clymer if he wishes to. 

Mr. DIGENOVA. Certainly, Senator. The situation is such that it 

is—there are always worse case scenarios. 

Senator FEINSTEIN. No, no, no, no. Stop for a minute, Joe. What 

he is saying is that the DOJ rules set a basic standard which 

avoids the courts essentially, and therefore, through negotiation, 

they are able, they believe, to effect a clear system. 

Mr. DIGENOVA. They can still do that if they were enacted into 

law. That would not prevent negotiation. Someone has to go to 

court and file a motion to quash a subpoena. At that point, even 

before that, they will do the same negotiating they do with news 

organizations every day before the news organization ever files a 

motion to quash on a subpoena. Once that motion to quash is filed, 

they are in the same position today that they would be with the 

guidelines enacted into law. There is only one difference, they 

would have to follow the guidelines, which notwithstanding what 

the Department says here today, they do not always do. 

Senator FEINSTEIN. Dr. Clymer, would you respond? 

Mr. CLYMER. I think there is an additional problem with enacting the DOJ guidelines as law. In my experience the Department 

is perhaps overly rigorous in the application of those guidelines, if 

anything. If they are enacted into the law, the Department no 

longer has the obligation or the need to do that and, instead, the 

courts decide. 

In some measure, it may be easier to get a subpoena to a media 

source through the court system than it is to get it through main 

Justice. You lose the uniformity, you lose the institutional memory 

about what gets done and what doesn’t get done, and I am not sure 

you really gain any benefit. Unless there has been some evidence 

that there has been a abuse of the process, it seems to me there 

is no problem to fix. 

Senator FEINSTEIN. Quick question of all of you. If there were to 

be a bill, should it preempt the State laws that now exist? 

Mr. CLYMER. I think that is a bad idea. I don’t think this body 

should be telling State courts what is admissible or inadmissible in 

State court proceedings. 

Senator FEINSTEIN. Does everybody agree with that? 

Mr. DIGENOVA. I agree with that, Senator. 

Mr. ROSENBERG. I don’t really have a view on that, Senator. 

Senator FEINSTEIN. So, Mr. Rosenberg, let me just be clear. Main 

Justice is opposed to any bill, no matter how good it might be. Is 

that correct? 

Mr. ROSENBERG. We are certainly opposed to this bill. We always 

will work with this Committee if there is something that we can 

do to help make a bill better. But this bill does not help. It hurts 

law enforcement. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

12 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman, for holding this important hearing. 

Obviously, this is a question of competing values that we are trying to reconcile here. Mr. Rosenberg, in light of the Branzburg v. 

Hayes decision, where the Supreme Court said there is no constitutional privilege, on what basis would a reporter offer confidentiality 

under all circumstances to a source? 

Mr. ROSENBERG. Well, a reporter is in a bit of a bind, then, Senator. What Branzburg said is that there is no privilege if an investigation is conducted in good faith. And I add that gloss because 

I think it is an important gloss. If an investigation, God forbid, is 

brought in bad faith or merely to harass a reporter, Branzburg left 

open the possibility that you can go to court and seek to quash it 

on First Amendment grounds, because the First Amendment would 

override a bad-faith investigation, as it should. 

Senator CORNYN. But it is a matter of law, correct?, that a reporter cannot guarantee confidentiality. 

Mr. ROSENBERG. I believe that is correct, Senator, but if I may 

just add quickly. Somehow it has gotten into the drinking water 

that all leaks are beneficial. Some, frankly, are venal. Some, frankly, as Professor Clymer noted, are a crime in and of themselves. We 

only—and when I say ‘‘we,’’ the Department of Justice seeks confidential-source information in a very narrow set of circumstances, 

when, for instance, the leak itself is a crime. We are not going after 

whistleblowers, and I know our history bears that out. 

Senator CORNYN. Professor Clymer, the Court’s decision in 

Branzburg said that if the Court was going to recognize a constitutional privilege for journalists, then they would in effect be in the 

business of defining who is and who is not a journalist. And to me, 

it strikes me as one of the most difficult aspects of what we are 

being asked to do here, because I don’t know whether that would 

apply with equal force to the journalist who works for the New 

York Times or Washington Post or Dallas Morning News or Houston Chronicle, or Al-Jazeera or perhaps an Internet blogger who 

has a cell phone with a camera and maybe a recorder and a laptop 

computer and is capable of publishing information with almost 

equal ease of what we would consider to be a professional journalist. 

Would you tell us how we are going to do that? 

Mr. CLYMER. Well, I think there are a couple of problems there, 

Senator. The first problem is just the language used in any bill, 

and the proposed bill before the body has language that I think 

could easily be read to apply to an Internet blogger and would 

apply to Al-Jazeera. And so the proposal before the Senate now 

would make those covered people, which would mean that disclosures to those entities would be privileged. 

The second problem is that even if Congress tries to limit or 

carefully draft the bill to avoid that problem, there is no telling 

how courts may interpret it in light of Fifth Amendment or other 

constitutional concerns. They may decide that you cannot favor one 

group of media over another group of media. And so if you are 

13 

going to give the privilege to the New York Times, you necessarily 

have to give it to the Internet blogger as well. 

I don’t have a proposed solution to that problem. All I can tell 

you is I think it is a problem and I think it is a problem that deserves very serious consideration. 

Senator CORNYN. Well, obviously the Internet bloggers, and perhaps others, don’t observe the same professional ethics or have the 

same review by editors and others that are trying to make sure 

that they are performing their job in a responsible and accurate 

sort of way. 

Let me ask, Mr. Rosenberg, in the 42 seconds I have remaining 

here, in Mr. Fitzgerald’s case, because he is a Special Counsel, is 

he bound by the Department of Justice guidelines? 

Mr. ROSENBERG. Excellent question, Senator. My understanding, 

because he is appointed by the Attorney General, in essence, yes, 

he is. 

Senator CORNYN. But the Attorney General recused himself. 

Mr. ROSENBERG. And made Mr. Comey the Acting Attorney General for purposes of that investigation. The Acting Attorney General, Deputy Attorney General Comey, then delegated his authority 

to Mr. Fitzgerald. 

Senator CORNYN. Is Mr. Fitzgerald on record as acknowledging 

that he is bound by the Department of Justice guidelines? 

Mr. ROSENBERG. I don’t know that he is on record, but if you look 

at Judge Hogan’s opinion, you will see that he complied with all 

the guidelines. 

Senator CORNYN. Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman, and thank you to 

the panel. 

Mr. Rosenberg, the hypothetical that you used about a kidnapping victim is exactly the same hypothetical I posed to the last 

panel and they couldn’t come up with an answer. And as I read 

this law that we are considering here, if in fact a 5-year-old girl 

is kidnapped, being held somewhere, and the kidnapper calls a reporter to describe in gruesome detail what is happening to that little girl, if confidentiality was promised to the person, the kidnapper, then under this law there would be no way for the Department of Justice, dealing with a Federal crime, to compel the disclosure of that kidnapper. Is that your understanding? 

Mr. ROSENBERG. Yes, sir. 

Senator DURBIN. And that, of course, defies the basic attorneyclient privilege, which says if the commission of a crime is involved, 

the privilege does not apply. 

Mr. ROSENBERG. It indeed sweeps more broadly, yes, sir. 

Senator DURBIN. So let’s take that to the next—that is the easycase scenario. Now let’s take it to the more-difficult-case scenario. 

Now we are dealing with the whistleblower, and the whistleblower 

is disclosing classified information to the reporter. The disclosure 

of that information may be the commission of a crime. 

Mr. ROSENBERG. Yes, sir. 

Senator DURBIN. So how would you deal with that exception, or 

that situation? 

14 

Mr. ROSENBERG. Well, the test for a national security case would 

be imminent actual harm. If we could not show that that leak was 

imminent actual harm, we may not be able to reach it through this 

bill. In other words, it may be off limits, even though a crime. 

Senator DURBIN. And of course it could be more technical and not 

classified information, but some other protection of Federal law 

that would protect the disclosure of certain information which is 

being given for the purpose of disclosing wrongdoing by other people in the Government. 

Mr. ROSENBERG. Yes, sir. And as I noted earlier, it might be 

something we could reach in one circuit but not in another, setting 

up a truly bizarre situation. 

Senator DURBIN. Let me ask you the more basic thing, and I 

don’t know how we get to this point. In the Valerie Plame case, 

which we are dealing with here, we weren’t, obviously, dealing with 

noble intent or public good or an effort to use the press to disclose 

wrongdoing. What appeared here to be, what happened with the 

Novak disclosure, was venal, it was political, and it may have been 

the commission of a crime itself. How do you get to the question 

of the intent of the disclosure of the information? Should that be 

part of this conversation? 

Mr. ROSENBERG. Senator Durbin, if you permit me not to speak 

about that matter. It is an ongoing investigation and I don’t think 

it would be appropriate. 

Senator DURBIN. Certainly. 

Mr. ROSENBERG. But your more general question is a difficult 

one. With this privilege enacted, we have to show imminent harm 

to national security. If we can show that, then whether the motive 

was venal or not, we might be able to get to it. 

Senator DURBIN. Mr. Clymer, let me ask you. I hope I will be 

here when Ms. Miller testifies, but there appears to be a problem 

that she went through with the attorney for Mr. Libby as to whether or not the confidentiality was waived, whether she understood 

it to be waived by free will or coerced. How would you address 

that? I mean, you raised that as one of the issues here, the waiver 

of the confidentiality itself. 

Mr. CLYMER. I think that any privilege should address it the 

same way other privileges address it, which is to say the witness 

asserts the privilege, the opponent of the privilege has the ability 

to challenge that assertion, and a court—not the witness, but a 

court—gets to decide whether or not the privilege has been validly 

asserted. That may require in some instances that the court conduct an in camera hearing with the source, yet undisclosed to the 

party trying to identify the source, but to determine whether the 

source waived the privilege, whether the source ever asked for confidentiality, and whether, if the source did waive, whether the 

waiver is valid. 

Senator DURBIN. And your argument is that is consistent with 

other privileges and how they are asserted in court proceedings? 

Mr. CLYMER. I have done it. As a prosecutor, I have had people 

assert the Fifth Amendment privilege and I have claimed that it 

is an invalid assertion, we have a hearing, and the court decides. 

I have done it with attorney-client privilege, and we have a hearing 

and the court decides. It should not be up to the reporter to decide, 

15 

and the opponent should not have to accept the reporter’s assertion 

at face value. 

Senator DURBIN. How would you improve the current law before 

us other than this area, in terms of the waiver of this privilege? 

Mr. CLYMER. In 35 seconds? 

Senator DURBIN. I know. That is one of the problems. 

[Laughter.] 

Mr. CLYMER. A couple of problems. No. 1, this law as written also 

protects non-confidential-source material in the news media. That 

is an entirely separate issue than the one we have been talking 

about, and I think it requires separate and very close scrutiny because it is not clear to me that there are good reasons for a separate privilege for non-confidential-source material. 

Second, as I said, I believe that it is a mistake for a body that 

passes laws making certain disclosures crimes, to turn around and 

say we are going to conceal the identity of the person as long as 

they make the disclosure to a media person. 

Those are my two biggest concerns. 

Senator DURBIN. The second one may be a tough hurdle to clear. 

Mr. CLYMER. I agree, sir, it is. 

And then the third one is the one you just raised, which is the 

issue about who gets to decide if the privilege is validly asserted. 

Senator DURBIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

The American criminal process has always been a pursuit of 

truth. We have had historically certain limited privileges for certain individuals. When you go to law school, you study each one of 

those, and they are defended and argued for and against, and you 

have cases that show how abuses occur with the privileges and 

cases that demonstrate why the privileges are legitimate—the 

priest-penitent, the husband-wife, and many states have a reporter 

privilege. 

I think, though, the first principle we should consider is this: If 

you have confidence in our Government—and I do—then to deny 

the investigators of that Government the ability to find truth is a 

compromise on the ideal of the American legal system. You have 

to justify that compromise through a rational analysis. 

So I guess that is where we are today, and I am interested in 

looking at this. It does strike me quite clearly—and just briefly, because you can see how short our time is—I would ask each of you, 

would you agree that the position of the United States Government 

that deals with international relations, that deals with national security, terrorism, war, and the ability of our Government to unleash deadly force against enemies and have those enemies desire 

to unleash deadly force on our soldiers and our people, even, that 

it is a—we have to be more careful than most States. Would you 

disagree with that, Joe, and would you— 

Mr. DIGENOVA. I would not, Senator. I would agree with that. 

Senator SESSIONS. Professor Clymer. 

Mr. CLYMER. I also agree. 

Senator SESSIONS. Mr. Rosenberg. 

16 

Mr. ROSENBERG. I agree. 

Senator SESSIONS. You have already stated that in your remarks. 

And I think that is true. I was asked by one of my newspapers 

about it and all the States have it. I started thinking about that, 

well, why has the U.S. Congress not passed such a law? And I 

think it is a qualitative difference. 

Now, Professor Clymer, you talked about the lawyer-client privilege, I believe, or maybe both of you did. But if a lawyer advises 

a client on how to commit a crime or, in conversation with that client about a crime, takes steps to further that crime, the privilege 

does not continue. Is that correct? 

Mr. CLYMER. That is correct. In fact, if the communication at 

issue was made for the purposes of furthering a crime or a fraud, 

there is a well established exception that applies in the privilege— 

Senator SESSIONS. I assume all of you would agree. 

All right. So it seems to me, now, that if a member of the United 

States Government, in violation of the security rules of that Government, provides information that is classified to a reporter and 

that reporter broadcasts it, if it was a lawyer client, the privilege 

certainly would not apply in that instance because they would be 

aiding and abetting the crime or actually being a co-conspirator or 

a co-participant in the crime. Is that correct? 

Mr. CLYMER. Although it is worth pointing out that the attorneyclient privilege does not require that the attorney be involved in 

the criminal conduct. If the client asked the attorney questions and 

the client intends to commit a crime by asking those questions, the 

attorney can be a completely innocent party and the communication still is not privileged. 

Senator SESSIONS. Well, but, you know, he has to be advising the 

client on how to commit the crime, does he not? Victoria, I see back 

there, says no. 

Mr. DIGENOVA. Actually, Senator, in most of the instance where 

the attorney-client privilege is pierced, it is not because the lawyer 

was wittingly involved, it is that the lawyer was used unwittingly 

by the client, they find out about it later, the courts seek their testimony, and the lawyer is delighted to testify about what they were 

told. That is the majority of the cases where the privilege is 

pierced. 

Senator SESSIONS. Well, I could see that, and you make a good 

point. Well, at any rate, those are the reasons I think we need to 

be careful here. This is a big deal. It is something that my initial 

inclination would be, well, why not be supportive of our media? 

One reason Senator Specter never called a reporter before the 

grand jury in Philadelphia is he had to face The Philadelphia Inquirer and they have ink by the barrel. I mean, there is a political 

reality there. So even the Department of Justice has to be careful, 

because you take a lot of abuse if you bring a reporter. So there 

is an inherent discipline on the Government not to abuse this 

power. 

Mr. ROSENBERG. May I just have a moment, Senator, to respond 

to that? 

Senator SESSIONS. Yes. 

Mr. ROSENBERG. You are exactly right. And that is why not only 

do we adhere so closely to our internal guidelines, but I can tell 

17 

you, they are rather strict. We have to make all reasonable attempts to obtain information from alternative sources first. Then 

we must negotiate with the media. And then, if that fails, we may 

seek permission, if there are reasonable grounds to believe a crime 

has occurred and the information is essential—that is the word in 

our guidelines—essential to a successful investigation. And that is 

why, if you look at the past 14 years, we have only issued 12 confidential-source subpoenas. We take this responsibility very seriously. 

Senator SESSIONS. My time has expired. 

Thank you very much, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Sessions. 

Ordinarily, we limit it to one round. But let us go forward with 

a few additional questions here. 

Mr. Rosenberg, five circuits have applied Branzburg to prevent 

journalists withholding information to the Government. Four other 

circuits recognize a qualified privilege. The law in the D.C. Circuit 

appears to be unsettled. Isn’t this the kind of a situation on an important issue of public policy that there ought to be uniformity 

among the circuits, so that there is a special reason for Congress 

to intervene? 

Mr. ROSENBERG. Well, I don’t believe there is reason to intervene, but it does raise an ancillary point that I think is important. 

I don’t think Branzburg is that unsettled. I think if there is a goodfaith grand jury investigation, then there is no privilege. And that 

is what the D.C. Circuit recently said. But it goes back to an earlier point in our discussion—Senator Feinstein—when we talked 

about how inevitably different circuits are going to judge parts of 

this bill in different ways. And that is a fundamental problem with 

the legislation. 

Chairman SPECTER. Well, Mr. Rosenberg, is it incorrect that five 

circuits have said there is no privilege at all and four circuits use 

a balancing test? 

Mr. ROSENBERG. I believe, Senator, but I will check, that that 

was in the civil context. In other words, for a criminal grand jury 

investigation brought in good faith, I think there was one aberrant 

decision that I know of in the Third Circuit, a 1992 case called Williams. Absent that, I believe, in a criminal grand jury context, 

good-faith investigation, Branzburg is settled law. 

Chairman SPECTER. Well, that is not my staff’s research. 

Mr. ROSENBERG. I could be wrong. And I am happy to be corrected. 

Chairman SPECTER. Well, any of us could be wrong. We will double-check that. But you say there is at least a distinction in the 

Third Circuit, which moves in a different direction? 

Mr. ROSENBERG. There is a 1992 Third Circuit case, I believe, In 

re Williams, which the Third Circuit—it was a split panel, by the 

way, evenly divided, I believe—improperly focused on Justice Powell’s concurrence in Branzburg to find that there could be a qualified privilege in the grand jury context, which I think is a 

misreading of Branzburg. I think absent that—and again, I am 

confining my analysis to criminal grand jury cases brought in good 

faith. 

18 

Chairman SPECTER. Well, OK, you may think it is a misreading 

of Branzburg, but the Third Circuit doesn’t. 

Mr. ROSENBERG. And they win. 

Chairman SPECTER. The Third Circuit is a very important circuit. It covers Pennsylvania. Right, Professor Clymer? 

Mr. CLYMER. Absolutely. 

[Laughter.] 

Chairman SPECTER. But there is a special need for Congress to 

come into it if the circuits are divided. 

Mr. diGenova, you had commented about the need to have access 

to discovery so that there could be information presented to a court 

implementing a balancing test? 

Mr. DIGENOVA. Yes. 

Chairman SPECTER. Would you expand on what you had in mind 

there? 

Mr. DIGENOVA. Yes, Mr. Chairman. As a result of experiences in 

the area both with the reporters’ privilege and the attorney-client 

privilege, in the grand jury context people who are seeking to challenge the subpoenas are not entitled to get the ex parte information 

that is given to the court. In those two situations, where the privileges are quite substantial and important, the absence of having 

access to that information— 

Chairman SPECTER. Well, let me interrupt you because I have a 

minute–20 left, would that idea be applied conceptually to Ms. Miller’s case, where— 

Mr. DIGENOVA. Oh, absolutely. 

Chairman Specter—[continuing]. Where you think she should 

have had the right to know what the background was so that there 

could have been a weighing test by the Federal judge in charge— 

Judge Hogan, who is in charge of the Federal grand jury? 

Mr. DIGENOVA. Yes. Absolutely. Because only the Government 

knows the ex parte communication with the court. The person challenging the subpoena does not. 

Chairman SPECTER. Professor Clymer, do you agree with Mr. 

diGenova? 

Mr. CLYMER. No. 

Chairman SPECTER. Why not? 

Mr. CLYMER. I think it would be a bad idea if a person who was 

merely a witness in a grand jury investigation would be able to 

gain access to 6(e) material, which is essentially what Mr. 

diGenova is suggesting. I think it would undermine the effectiveness and the function and the historical performance of Federal 

grand juries. 

Chairman SPECTER. Why do you say that? Why shouldn’t that 

determination be made by a judge, to know what is in the background, what— 

Mr. DIGENOVA. I don’t mean to suggest, Senator, that the judge 

should not have access to that information. I mean to suggest, I 

don’t see that a person— 

Chairman SPECTER. So you think the judge should have access 

to it on a balancing test? 

Mr. DIGENOVA. Well, the judge should have access to the information if it is necessary to make a determination. For example, the 

19 

D.C. Circuit had access to confidential information in the case involving the Judith Miller subpoena. 

Chairman SPECTER. Senator Feinstein, do you care to ask additional questions? 

Senator FEINSTEIN. No, Mr. Chairman. I am very anxious to 

have the next panel. 

Chairman SPECTER. We will move right to them unless Senator 

Session intercedes. 

Thank you very much, Mr. Rosenberg. Thank you, Professor 

Clymer. Thank you, Mr. diGenova. 

We now turn to our next panel, Ms. Judith Miller, Mr. David 

Westin, Ms. Anne Gordon, Mr. Dale Davenport. 

Our first witness on this panel is Ms. Judith Miller, author and 

Pulitzer Prize-winning correspondent for the New York Times, 

writing about national security issues with emphasis on terrorism 

and the Middle East. She joined the Washington bureau of the 

Times in 1977, and in 1983 was the first woman to be named chief 

of the Times bureau in Cairo. In 1990 she was a special correspondent in the Persian Gulf crisis. Before joining the Times, 

worked on National Public Radio and a contributor to The Progressive, a monthly magazine. 

Ms. Miller, we appreciate your coming in today. You look so 

much better than when I last saw you. 

Ms. Miller. So do you, Senator. 

Chairman SPECTER. People say that I am looking better now that 

I am growing hair. But you look much, much better than anybody 

does. So thank you for joining us, and we are very much interested 

in what you have to say. 

STATEMENT OF JUDITH MILLER, INVESTIGATIVE REPORTER 

AND SENIOR WRITER, THE NEW YORK TIMES, NEW YORK, 

NEW YORK 

Ms. MILLER. Good morning. I am Judith Miller, a reporter for the 

New York Times. That statement, in and of itself, is extraordinary. 

Reporters don’t usually testify at Congressional hearings, but the 

circumstances that in July forced me to spend 85 days in the Alexandria Detention Center in Virginia highlight the urgent need for 

a Federal shield law to protect journalists and their sources. 

I am here today to urge you to enact the Free Flow of Information Act so that other journalists will not be forced, as I was, to 

go to jail to protect their sources. I am here because I hope you will 

agree that an uncoercable press, though at times irritating, is vital 

to the perpetuation of the freedom and democracy we so often take 

for granted. 

Yes, the legal machinations in my case were enormously complex, but the principle I was defending was fairly straightforward. 

Once reporters give a pledge to keep a source’s identity confidential, they must be willing to honor that pledge and not testify unless the source gives explicit, personal permission for them to do 

so and they are able to protect other confidential courses. Eventually, when the fuss over my case dies down, I hope journalists and 

politicians will begin examining the real issues at stake here, especially the question of when and under what circumstances a waiver 

can be considered voluntary. 

20 

Struggling with such a weighty question alone in jail was hardly 

ideal. I did the best I could under rather challenging circumstances. Confidential sources are the life’s blood of journalism. 

Without them, whether they are in government, large or small 

companies, or nonprofit organizations, people like me would be out 

of business, as I painfully learned while covering intelligence estimates of Saddam Hussein’s weapons of mass destruction. We are 

only as good as our sources. If they are mistaken, we will be wrong. 

And a source’s confidence that we will not divulge his identity is 

crucial to his or her readiness to come to us with allegations of 

fraud or abuse or other wrongdoing, or even a dissenting view 

about Government policy or business practices that the American 

people may need to know. 

I know from my 30 years in national security and intelligence reporting that confidential sources in this area, though traditionally 

the most press-shy and skittish of contacts, are indispensable to 

Government accountability and the people’s right to know. I would 

just point to the two examples. 

In 2000, I relied heavily on such sources in co-writing a series 

of articles on al Qaeda, which was openly and doggedly pursuing 

nuclear, biological, and chemical weapons. That series won one of 

seven Pulitzer Prizes for the New York Times that year, and it 

could not have been written without pledges of confidentiality I 

gave to officials who were so worried about al Qaeda—all too presciently, alas—that they were willing to discuss classified information with me to call attention to how relatively little time and 

money were being spent countering what they considered the 

gravest of threats to our Nation. 

Admittedly, the situation that sent me to jail was not as clearcut. It was not the case of a government or corporate whistleblower, but an all-too-familiar case of Washington politics. Yet the 

principle that confidential sources must be protected must apply in 

all cases. Indeed, one person’s whistleblower is another person’s 

snitch. 

One reason why this bill is so urgently needed is, in the post-9/ 

11 era, dramatically increased amounts and types of information 

are being classified as secret and, hence, are no longer available for 

public review. Last year, more documents were classified secret 

and top secret than ever before in American history. In such a climate, confidential sources, particularly in the national security and 

intelligence areas, are indispensable to Government accountability. 

Journalists are increasingly being subjected to Federal subpoenas 

since 9/11, more than two dozen reporters have now been subpoenaed in the past 2 years and are in danger of going to jail. If current trends prevail, the Alexandria Detention Center may have to 

open an entire new wing to house reporters. 

In conclusion, I would just say that my 85 days in prison were 

tempered by the letters I received from friends and supporters from 

throughout the world, but many were perplexed why—and they 

could not understand why a reporter doing her job, much less a reporter who had never written an article about this story, could be 

imprisoned for keeping her word. 

What has been missed in much of the furor over my case, paraphrasing Paul Levinson, a Fordham University professor, is that 

21 

the recent hand-wringing should not prevent us from recognizing 

the most enduring truth: Reporters, even flawed reporters, should 

not be jailed for protecting even flawed sources. When the dust 

clears, I hope that journalists and newsrooms will be emboldened, 

not confused or angered, by what I have done. And I hope that you 

will ensure that no other reporter will have to choose between 

doing her small bit to protect the First Amendment and her liberty. 

Thank you, Senators. 

[The prepared statement of Ms. Miller appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Ms. Miller. 

We now turn to Mr. David Westin, President of ABC News, 

under whose leadership ABC received two of broadcast journalism’s 

highest awards, the Peabody Award and Columbia University’s DuPont Award. 

In his career before coming to ABC, he was an attorney with Wilmer Cutler and Pickering, and served as law clerk to Associate 

Justice Lewis Powell. Perhaps he had a hand in the Branzburg 

opinion to raise the areas of doubt and confusion. Or perhaps that 

was in another era. 

Thank you for joining us, Mr. Westin. The floor is yours. 

STATEMENT OF DAVID WESTIN, PRESIDENT, ABC NEWS, NEW 

YORK, NEW YORK 

Mr. WESTIN. Thank you very much, Mr. Chairman, and thank 

you to all the members of the Committee for having me here today. 

I must confess at the outset, I didn’t work on Branzburg v. Hayes. 

It was a few years before I was with Justice Powell. 

Chairman SPECTER. Well, that is too bad. I am sure if you had, 

it would have been clearer. 

[Laughter.] 

Mr. WESTIN. You flatter me, but I wouldn’t want to criticize my 

old boss. 

In my limited time, I want to make two basic points. As you say, 

I have served both as a lawyer—I did have the honor of clerking 

for Justice Powell, and then with Wilmer Cutler for many years— 

and now I have been in a newsroom for approaching 9 years now. 

So I have seen both sides of this issue. Today I am here not as a 

lawyer. I still have my D.C. Bar card, but I am not as a lawyer 

here today. I am really representing the 1,300 men and women of 

ABC News. 

I have seen both sides of it and I recognize there are two sides 

to this issue and that it is a very difficult issue. But I think it is 

just as important as it is difficult. 

The two points I really want to try to make here are, number 

one, why I believe that it is really important that this Committee 

and Congress do something in this area. As has been pointed out, 

Branzburg v. Hayes is back from the early 1970’s now, and we have 

had some confusion in the Federal law for a good long time and we 

have gotten along. So a legitimate question is, why now? What is 

different? And the second point for me to make is to give you some 

sense of where at least I think it would make sense for Congress 

to come out if it chose to legislate in this area. 

22 

On why it makes a difference, let me talk about confidentiality. 

Confidentiality is truly important. I have seen this now in the 

newsroom in doing our reporting. It doesn’t mean—and I don’t 

want there to be any illusion about this—it doesn’t mean that all 

of our reporting involves confidential sources or confidential information. In fact, the vast majority of the reporting we do doesn’t involve pledges of confidentiality and it doesn’t involve sources who 

even ask to be kept confidential. But there are some stories and 

some information that is important, that we cannot get at without 

giving some assurance of confidentiality. And everyone knows 

about Deep Throat, those famous cases, but I can tell you just from 

ABC News during my tenure there, we have had investigative reports on everything from wrongdoing at Veterans Administration 

hospitals to problems at the FBI crime labs and a scandal in the 

State of Illinois involving corruption in State government. And 

those stories we really could not have gotten to without giving 

some pledge of confidentiality. 

Now, as a matter of policy within ABC News, we are careful with 

those pledges. We do not just give them out easily. It has to be a 

truly important story and we have to believe that it truly is important to give the pledge of confidentiality in order to get at that 

story. But it does come up, and it is important. 

What has changed, and what is different just during my tenure 

at ABC News, is that, when I first came in, the real question was 

is the information you have right, are we confident that it is truthful, Number one; and number two, is it newsworthy? There now is 

increasingly a third element that we need to take into account, and 

that is, even though we believe it is true and even though we believe it is newsworthy, are we, are our reporters willing to risk subpoena and coercive efforts by prosecutors or by civil litigants or 

Government litigants in a private capacity, are we willing to risk 

that for the story? And that is a further element that has been inserted now within recent years because, simply, of more of these 

cases coming up and more prominent cases coming up. 

And please understand, I think Mr. Rosenberg misunderstands 

my position, at least. I don’t mean this as an indictment of the Justice Department. I am not saying they are doing anything wrong. 

They may be doing exactly right. What I can tell you is, inside the 

newsroom this is something we are very, very conscious of. And so 

it is keeping some information from the American people that otherwise we and others would be reporting. 

Number two, what really do I think makes sense, given the fact 

that I do recognize there are two sides to this? I think basically— 

and I leave the drafting to others—basically I think what we need 

is a rule that says prosecutors and others can get access to this 

confidential information only when there is truly a need for it and 

there truly is no other way to get it. 

Now, a number of factors go into that: The importance of the offense being investigated, the likelihood that there was an offense 

in the first place, national security needs to be taken into account. 

There are a variety of factors. But the question is, is it truly necessary and is it truly the case that there is no other way to get at 

it. 

23 

And finally—and perhaps this is the biggest issue, because I 

think frankly there is a lot of common ground with the Justice Department. I think there is a lot in the regulation to be applauded, 

and the fact that they have it. But they recognize in the regulation 

the First Amendment interests here, implicitly. That is why they 

have the regulation—even though I note it doesn’t apply outside 

the Justice Department. It doesn’t apply to SEC and FTC and 

other subpoenas. 

But the real issue is who gets to decide in the end? It is understandable why prosecutors really believe in what they are doing 

and are zealous in pursuing their investigations. And as a citizen, 

we all should applaud that. We should want that. At the same 

time, there is a legitimate countervailing interest on the part of a 

robust media that is uncovering some of these stories we can’t always get at. And in that circumstance, in the end I trust a court 

to sort that out. And that is really the issue. Do the courts ultimately decide that, or should we leave it to the unfettered discretion of the Justice Department? And that is why on balance I come 

out with the need for a balance to be struck, but in order for us 

to do our job at ABC News, I think it is critical that the courts ultimately strike that balance. 

Thank you very much. 

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

for the record.] 

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

We now turn to Ms. Anne Gordon, managing editor of The Philadelphia Inquirer, where she has been since 1999. A graduate of the 

University of Denver, has worked in the field of journalism at various locales—the Rocky Mountain Business Journal, business editor in the Fort Lauderdale Sun Sentinel, and Denver Post, assignment manager for KCNC, a Denver TV station, and Sunday editor 

of the Cleveland Plain Dealer. 

Thank you for coming to Washington today, Ms. Gordon. We look 

forward to your testimony. 

STATEMENT OF ANNE K. GORDON, MANAGING EDITOR, THE 

PHILADELPHIA INQUIRER, PHILADELPHIA, PENNSYLVANIA 

Ms. GORDON. Thank you. 

Mr. Chairman and members of the Committee, thank you for allowing me to share my experience with you today as I consider this 

very important legislation. As a journalist, I work hard to keep my 

beliefs out of public life, but you have asked me here today to 

speak on behalf of journalism, a profession that I hold dear and 

that I believe is bedrock to a free and open society. But while generations of Americans have added their voices to those of our 

founding fathers in support of those who dare to speak out, there 

is today renewed conflict among the Government, the judiciary, and 

the press. I urge you to put this conflict to rest. 

By passing the Free Flow of Information Act that creates a Federal shield law, you can protect the press when it exposes secrets 

that benefit the public and national security. The Justice Department has told you that this bill is bad policy. The implication is 

that when the press tells its readers, as The Inquirer recently did, 

for example, that nearby refineries are vulnerable to attacks and 

24 

accidents that could imperil hundreds of thousands, it is threatening national security. The threat comes not from inadequate protection of these sites, the Justice Department would seem to reason, but from the use of confidential sources to reveal the story. 

In fact, not publishing this material threatens national security. 

I want The Inquirer to tell its readers that some chemical plants 

in our region are properly inspected and guarded and some are not. 

I want to tell them which levees pose a threat to New Orleans. I 

want to tell them which campaign donors are profiting from the 

Iraq war and from contracts to operate the Philadelphia airport. 

Some of the information needed to tell these stories does indeed 

come from confidential sources, sources that would not talk, provide documents, or point the way to change if it were not for the 

assurances that they will be protected from reprisals. 

The fear of exposure exists at all levels, and from those involving 

the Government to those involving industry and even our most sacred institutions. These are not cases involving political intrigue in 

Washington, D.C., but real, daily examples of wrongdoing exposed 

because of the promise to protect a courageous individual who 

wants to see justice done. The debate over a Federal shield law has 

been warped by a cycle of political leaks in Washington. But the 

reality is that those sorts of discussions are a minor part of the 

larger field of reporting that uses confidential sources. It is also important to note that very often the confidential source is merely the 

starting point in an investigation. But without the promise at the 

onset, the fuller story would never be told. 

Last year in the United States, more than two dozen reporters 

were subpoenaed or questioned about their confidential sources in 

Federal court cases. Six journalists were jailed or fined for refusing 

to disclose a source. That number may seem small, but these actions sent doubt into the minds and spines of whistleblowers and 

journalists alike. Today, 31 States and the District of Columbia 

provide shield laws that prohibit journalists from testifying about 

confidential sources. Eighteen other states have recognized a reporters’ privilege as a result of judicial decision. 

Why, you may ask, does the Federal Government need to get involved? Quite simply, because State shield laws offer little help in 

Federal proceedings. Confidential sources are left without any protection other than the hope that the journalist will be willing to 

violate a court order demanding them to testify. And having no 

shield in Federal proceedings undermines the State shield laws 

that do exist. 

Let me give you an example. The Pennsylvania shield law is in 

fact absolute. Confidential sources are protected under all circumstances. But the lack of Federal shield laws undermines the 

right-minded policy of the Pennsylvania legislature. If a journalist 

is subpoenaed in a Federal court, even though the reporting was 

done in Pennsylvania, the journalist can be ordered to disclose a 

confidential source, something that the legislature has otherwise 

prohibited. The source is left knowing that confidentiality is not 

guaranteed because a journalist in Federal court may be left with 

a Hobson’s choice of violating the court order and going to jail, or 

breaking a promise. 

25 

I know of no case where a disclosure of a confidential source 

would have protected the citizens of my State or our Nation. On 

the other hand, the disclosure of such source’s identity will jeopardize the public’s interest and security because individuals will be 

too afraid to bring information to light. 

I should add that the Free Flow of Information Act does not 

allow for absolute protection, which is why it has been supported 

by major news organizations and the American Bar Association. It 

allows for disclosure when in fact it would be necessary to prevent 

imminent harm to this Nation’s security. 

We can all of us, each of us, understand why a promise of confidentiality is crucial to disclosure. How many of us have asked a 

friend for a vow of confidence? Our lawyers are bound by confidentiality, our rabbis, our ministers, our priests, and our doctors as 

well. Whistleblowers need to be given the same assurances. What 

is most important here is that wrongdoing is exposed. When we 

hear as a Nation about Watergate or the fact that tobacco worked 

to make cigarettes more addictive or that Enron was a financial 

nightmare, we are hearing about promises made and kept, about 

a pact with our forefathers that this Nation would respect a free 

press. 

I urge you today to pass the Free Flow of Information Act, pass 

it so that Americans understand that journalists who protect their 

sources are not criminals, pass it because the lack of clarity at the 

Federal level undercuts State law. 

Thank you. 

[The prepared statement of Ms. Gordon appears as a submission 

for the record.] 

Chairman SPECTER. Thank you very much, Ms. Gordon. 

Our final witness is Mr. Dale Davenport. Been in the newspaper 

business for a long time. Started in 1966 as a staff writer for the 

Associated Press, then was with the Centre Daily Times and The 

Morning Press, and has been with The Patriot-News in Harrisburg 

since 1972, starting as a reporter and is now head of the editorial 

pages. Mr. Davenport made a special trip to Washington to see me, 

to urge these hearings and some Congressional action some months 

ago, and in part is a motivating factor. 

Thank you for coming, Mr. Davenport. We look forward to your 

testimony. 

STATEMENT OF DALE DAVENPORT, EDITORIAL PAGE EDITOR, 

THE PATRIOT-NEWS, HARRISBURG, PENNSYLVANIA 

Mr. DAVENPORT. Thank you, Mr. Chairman. Senator Feinstein. 

In Harrisburg, I think as we speak, there is a trial going on— 

it has been going on this month—in the U.S. Middle District Court, 

that you may have heard about. Eleven citizens of the Dover Area 

School Board in York County, south of Harrisburg, sued the school 

board over a policy adopted last year that directs 9th grade science 

teachers to tell their students that life is so complex that it might 

have been created by an intelligent designer. The citizens claim 

that this policy violates the Establishment Clause of the First 

Amendment. 

But another clause of that Amendment is also in play here because, during discovery, counsel for both the plaintiffs and the deVerDate Nov 24 2008 10:24 Feb 27, 2009 Jkt 046829 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46829.TXT SJUD1 PsN: CMORC
26 

fendants in this case subpoenaed two reporters, one for each of the 

York newspapers, that covered the meeting at which this policy 

was adopted. The plaintiffs wanted the reporters to verify what 

happened at the meeting, essentially what they had written about. 

The defendants, however, wanted at least one of the reporters to 

produce her notes and e-mails, drafts of her stories, and other unpublished material that they claimed would show that she was biased. 

Now, what her bias, alleged or not, has to do with the central 

issue of church and State, I don’t know and I can’t answer. But it 

has taken numerous motions and hearings and in camera examination by the trial judge and four court orders to get to where we are 

today, and that is that the two reporters are still under subpoena 

to testify as fact witnesses, if they are called, essentially just to 

verify that they wrote the stories and that they are accurate. Commendably, the trial judge, Judge John E. Jones III, has prohibited 

questions about anything else, including confidential sources. 

Now, these lawyers were not seeking the identity of the confidential sources, but they sought material that might lead to the identity of sources, confidential or not. If there were a Federal statute 

in place that defined conditions and set strict limits for journalist 

testimony, then everyone would know the standards, the judges 

would not have to rely on case law to judge the particular circumstances of a case like this. And it is less likely that reporters 

would be called to testify in the first place, which would reverse a 

disturbing trend in Pennsylvania of lawyers increasingly calling 

journalists to testify. 

Journalists ought to be the last resort as witnesses, not first 

choice. Not only is being called to testify disrupting, but it has a 

chilling effect on the everyday sources who provide the background 

or the context for our stories, the glue that holds our stories together. This Dover story wasn’t one where confidential sources supplied the information for the stories. The reporters simply covered 

a public meeting of public officials. But that is not to say that these 

reporters did not have sources who helped them produce the stories 

who might not have wanted to be quoted or identified. 

When I began my newspaper career 42 years ago as a summer 

relief reporter in my hometown paper, a little 10,000-circulation 

daily in Central Pennsylvania, I didn’t know the term ‘‘confidential 

source.’’ But I encountered right away literally dozens of people 

who gave me information, helped me get information, who didn’t 

expect and often did not want their names identified in the paper 

as the source of that information. These were clerks in the row offices at the county courthouse. They were the admitting nurse at 

the hospital. Police officers, an ambulance driver, the secretary in 

the school board headquarters. Most of these folks were simply 

doing their jobs, or thought they were doing their jobs, by pointing 

me in the direction of a document or an official source or confirming some detail of something I had learned elsewhere. 

Throughout my career, I have had more sources of this sort than 

I could ever count. And what these folks want is for the journalists 

to have all the facts so that the story is accurate, complete, and 

fair. Americans know that democracy depends on being informed. 

27 

They depend on the media to inform them, and if they can help to 

make that happen, they tend to do it. 

All of these people are sources and all of us in the news business 

have lots of them. If we had to rely on only official sources, then 

we would only have the official line in our stories and the free 

press as we know it would not exist. 

This brings me to why I think a shield law is so important. It 

might keep us out of jail, and that would be a good thing, but a 

shield law is not primarily about protecting journalists. A shield 

law primarily protects those thousands upon thousands of ordinary 

Americans who facilitate the free flow of information. They are 

helping journalists get the information and report the story, often 

anonymously and often by choice. 

I urge you to pass a Federal shield law that protects all Americans who help to keep this country strong by helping to keep us 

all informed. 

Thank you, Senators, for the opportunity to testify. I look forward to your questions. 

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

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

Ms. Miller, in your testimony you refer to sources as to information on al Qaeda. Could you elaborate upon that, please? 

Ms. MILLER. Yes, Senator. I had done a three-part series on the 

danger of al Qaeda. 

Chairman SPECTER. When did you do that? 

Ms. MILLER. In January 2001. And I had worked on it the year 

before and I had actually gotten interested in al Qaeda soon after 

its creation, and was convinced, based on the intelligence officials 

that I was talking to and others with access to classified information, that al Qaeda was a very dangerous threat to this country. 

They believed that, but they also believed that the then-Clinton administration was not spending enough money countering this 

threat and that al Qaeda didn’t have priority. So even though our 

discussions potentially involved the disclosure of classified information, I was able to work with some of them to get information that 

ultimately led to this series that talked about al Qaeda as a network of over 50,000 people around the world who had been through 

camps and who were trained and who were intending to kill Americans. 

Chairman SPECTER. Was your work with these informants and 

the specification of confidentiality that they would not be—the 

source would not be disclosed, instrumental in your getting the information? 

Ms. MILLER. Absolutely. I could not have gotten this information 

without those pledges. 

Chairman SPECTER. An over-arching critical issue is the chilling 

effect. You talk about more than two dozen subpoenas. The testimony by the Government was that there have only been 12 in the 

last 12 years, and we will check that out. Can you give us any specific illustrations—and I am going to come to the entire panel on 

this question—as to what your own experience has been on people, 

on reporters who have not done their job because of the chilling effect of the potential of what happened to you, Ms. Miller? 

28 

Ms. MILLER. Well, I would hope that anyone who talked to me 

would be assured that I was now willing to protect them. But in 

general, I think soon after my experience, my newspaper published 

a story about the Cleveland Plain Dealer in which that newspaper 

decided not to publish two articles that it had been working on because it was afraid of the consequences of probes into confidential 

sources. And I think that is a very telling example of the chilling 

effect. These subpoenas are extremely disruptive also to newsrooms, and they took me out of the flow—have taken me out of the 

flow of news reporting for well over a year now. 

Chairman SPECTER. Mr. Westin, have you experienced in your 

capacity as President of ABC News specific cases where this 

chilling effect has impeded the work of your reporters? 

Mr. WESTIN. It certainly, I am sorry to say, is a factor that we 

talk about and take into active consideration as part of the editorial process. 

Let me be clear. We get a number of subpoenas, both private and 

governmental subpoenas, all the time at ABC News. And the vast 

majority of those we work out. We negotiate them out, we limit 

them, you know, sometimes we move to quash and they go away. 

It is only a fairly rare exception that really comes in litigation. 

But what has happened as a practical matter is, because the Department of Justice does occupy a leadership position in law enforcement and the law generally in this country, the fact that they 

have pursued some of the very high-profile cases has sent a message throughout civil litigants’ ranks and through the States about 

the danger of this. And as a result, as I said earlier, there are cases 

now—our reporters still do their job, I agree with Judith. But there 

are cases now where, in years past, we just said if we know the 

facts are right and we know this is newsworthy, we will go with 

the story. Now we have to ask ourselves a tough question about 

what sort of situation we are leading our reporters into, our editors 

into, and ultimately our corporation into, and is the story really 

worth going through that. There are stories that still remain so important that they deserve that, but we have to take that into account in deciding what we will pursue and how hard we will pursue it. 

Chairman SPECTER. You testified, Mr. Westin, that the standards 

ought to be that it is truly needed and no other way to get the information. Do you think on a balancing test that a judge would undertake that there ought to be an inquiry into how important the 

prosecutor’s objectives are, how serious a matter is involved to warrant the jailing of a reporter? 

Mr. WESTIN. Personally, yes, I do believe that. I believe that if 

we are really trying to balance the interests here, there are investigations, and then there are investigations. And some go to really 

vital national interests and things—law enforcement should certainly be pursued very vigorously. Others are more marginal. And 

I think that that is a relevant factor for a judge to take into account. 

Chairman SPECTER. Ms. Gordon, in your experience have you 

seen specific cases where reporters or the newspaper has shied 

away from a story because of the fear of a subpoena and possible 

incarceration? 

29 

Ms. GORDON. Specifically, no, I have not. I don’t like to use the 

verb ‘‘chill,’’ because it implies that there is a bunch of frozen reporters out there afraid to act. And in fact, this is a very disturbing 

trend, but I believe that there is a great deal of courage and civic 

calling in what we do that pushes this issue forward. 

Is it disturbing? Absolutely. Are we, as Mr. Westin said, subpoenaed regularly? Several times a month, and we have the legal bills 

to prove it. But the reality of it is this is a part of how we do our 

job. Journalists should not be called to become witnesses for prosecutors. They should not be called to help prosecutors or other lawyers outside of the criminal courts to do their work. We are not another arm of Government. We are something quite distinct and 

need to be seen as such. 

Chairman SPECTER. Did the jailing of Ms. Miller and the notoriety attendant to that have an impact on your reporters at the 

newspaper? 

Ms. GORDON. Absolutely. It certainly is the subject of much discussion. It has also emboldened our outside people who would like 

to get information from the newspaper to threaten us, to suggest 

that they will take us to court, to suggest that they will get a subpoena. So it has very much heightened the sense that confidentiality is something that can be breached. Which is exactly why we 

need a Federal shield law, because the message that is generally 

out there is that there is no sense of confidentiality, that what you 

tell someone in Pennsylvania, for instance, with a full shield law, 

is of no importance, it will not stand the test of confidentiality if 

it is in a Federal court, a civil case or a special prosecutor. 

Chairman SPECTER. I am going to have to interrupt for about 2 

minutes to take a call. So if you will bear with me, I will be right 

back. 

[Pause.] 

Chairman SPECTER. Let us resume, and I won’t keep you too 

much longer. It has been a long morning. 

Ms. Gordon, you were in the middle of an answer. Have you finished? 

Ms. GORDON. Yes, Senator, I have. Thank you. 

Chairman SPECTER. Okay. So who is the confidential source, Mr. 

Davenport, in that trial? Darwin? 

[Laughter.] 

Mr. DAVENPORT. It is one of those guys. 

Chairman SPECTER. Have you had, beyond the case which you 

have just described, situations where there has been a problem, 

where there has been an apprehension on the part of the paper or 

reporters about going forward with a hard-hitting investigation? 

Mr. DAVENPORT. I don’t think there has been from a standpoint 

of perhaps having to protect a source into jail somewhere. But certainly the increase in the number of subpoenas that we get—and 

they are primarily in—once you get out into Harrisburg and, I 

think, smaller towns, so often the questioning is by civil litigants, 

people in private litigation seeking to have reporters come into 

court and verify the accuracy of a story, and then they start asking 

questions about what was left out of the story, how the story was 

developed. And these are part of a continuum. And this legislation, 

this S. 1419, certainly deals with that in terms of making the reVerDate Nov 24 2008 10:24 Feb 27, 2009 Jkt 046829 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46829.TXT SJUD1 PsN: CMORC
30 

porter the last-resort witness rather than the first. I think that is 

a very troubling aspect of what is going on away from national security issues. 

Chairman SPECTER. Ms. Miller, one final question, on a slightly 

different line. On some of the reports you have been described as 

a strong-willed person who is going to move in the direction which 

you see. That is a paraphrase and a more diplomatic context than 

some of what has been written. The question I have for you is to 

what extent is that necessary, as you see it, to really do your job? 

You have to shake things up, be a bull in a china closet to get the 

kind of results you want, perhaps disagree with some of your editors to go where you want to go? 

I am going to ask you next, Ms. Gordon, if you agree with her, 

so listen. 

[Laughter.] 

Ms. MILLER. Well, thank you, Senator. I think in investigative 

reporting of any kind there is a requirement to be a little pushier 

than some sources or editors would like. I have always just pushed 

as hard as I could to get a story. That doesn’t mean we will always 

get it right, but without those qualities I don’t think you can be an 

effective reporter. But it creates some tensions and enemies, yes. 

It does. 

Chairman SPECTER. How closely do you have to supervise your 

reporters, Ms. Gordon, to make sure that you have seen all their 

notes? Do you know their confidential sources, or when a reporter 

comes to you with a confidential source, do you not inquire but ask 

peripheral questions to satisfy yourself without going to that core 

issue? 

Ms. GORDON. Well, first of all, Senator, to your earlier point— 

Chairman SPECTER. If that is an inappropriate question, you 

don’t have to answer. 

Ms. GORDON. Well-behaved women don’t change the world. So I 

think that that is something to consider. 

Second, when there is an important story, am I actively engaged 

in knowing what the reporter knows at some level before publication? Absolutely. I think it is a two-pronged process. One, confidentiality is not easily given. We work very hard, in fact, to put names 

on the record on all of our stories. When that first initial decision 

is made, that is not the end of it. The second phase is basically it 

goes through editing and a lot of discussion about whether in fact 

there will even be publication. Again, we note here we have spoken 

much about Ms. Miller’s article that was never published. So it is 

important to put that in perspective. 

It is a difficult job. It is one that requires a great deal of internal 

conversation, questioning, pushing back. Hard questions are asked, 

evidence is demanded. Our own bar is very high, and we would 

only push that a shield law at the Federal level also set an equally 

high bar in asking us to reveal our sources. And I believe that the 

act in front of us today does just that. 

Chairman SPECTER. Mr. Davenport, was the Pennsylvania shield 

law ineffective to give your newspaper, the Patriot-News, a defense 

for all these subpoenas? 

Mr. DAVENPORT. It gives us a defense in State court. But it 

doesn’t in Federal court, obviously. 

31 

Chairman SPECTER. It doesn’t help you when it is in the Federal 

court. 

Mr. DAVENPORT. Sure. And the Middle District is based right 

there in Harrisburg, and so there is quite a bit of activity. 

Chairman SPECTER. Well, we had a question earlier today about 

the impact of Branzburg, and the Third Circuit, even conceded by 

the Government witness, has the balancing test. But of course it 

didn’t get to the Third Circuit. But that obviously would be the law 

that Judge Jones would apply in the Middle District. 

Mr. DAVENPORT. Yes. His first ruling on this was a 21-page opinion, the first order involving these two subpoenas, and it relied on 

a Branzburg, and there is a case called Riley, I think, and another 

one out of the Third Circuit that he used. But he noted that the 

Pennsylvania shield law had certain application, but not in the 

Federal court. 

Chairman SPECTER. The question arose earlier today, as you may 

recall, in my questioning Mr. Rosenberg about whether there was 

a split in the circuits. And I don’t know how far C–SPAN is going 

while we talk. We have had calls in that we were correct about 

that, that there is a split in the circuits. We have a lot of nodding 

heads out here, a lot of experts in the field. We have a lot of nodding heads behind me, too. 

[Laughter.] 

Chairman SPECTER. When the chairman makes a representation, 

it is nice that he is accurate, based on the staff work. And I am 

sure all of you feel that same way in your own lines, to have people 

give you information which is accurate. 

To the extent that you can supplement your testimony with specific cases where there has been an impact by the threat of subpoena and the lack of a shield would be very helpful. I personally 

am very fact-oriented in where we go on legislation. And I think 

it is fair to say my colleagues are, too. We don’t come to these 

issues with a lot of predispositions. We know the tremendous value 

of the investigative reporting and what the press does, beyond any 

question. The first thing I do every morning is go to a whole series 

of newspapers and electronic media. And this kind of reference material is invaluable. We don’t have staffs which can do the kind of 

research which is done by the news media. We just do not have 

that. And your exposure of corruption and mismanagement and 

malfeasance is legendary. There is just no doubt about it. And we 

want to be sure that you are not harassed. 

We have countervailing considerations about being sure that the 

criminal law can be enforced and national security interests are 

protected, but that is what we are here to do, to have a balancing 

test. There is nothing like going to a judge and having the facts before the judge and the weighing of these factors and having a judicial decision. This Committee has a very heavy responsibility. John 

Jones sat in your chair, Mr. Davenport, before he was a judge. He 

was recommended by the Pennsylvania Senators to be a Federal 

judge. And we questioned him here—not as thoroughly as we have 

questioned you, but we questioned him. So the independence of the 

judiciary is very important and there is rock-bed confidence in 

what the judges do. But they have to be able to have a statute to 

work with. And I believe we need a statute. 

32 

We had a hearing fairly early and, as I say, went to see Ms. Miller and have followed the matter very, very closely. And I considered a big part of my preparation for this hearing today to read 

both of those pages after the front-page edition. My wife looked at 

the two full pages and said, Two full pages? And then she skipped 

over to the next page. And I was on the train later on Sunday, and 

it took me from Wilmington to Baltimore to read the whole story. 

[Laughter.] 

Chairman SPECTER. But I wanted to be prepared. 

Well, thank you all very much for coming in. And to the extent 

you can supplement with the specifics, I would appreciate it. The 

Committee would appreciate it. 

That concludes the hearing. 

[Whereupon, at 12:29 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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