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46–018 PDF 2009

S. HRG. 109–1030 

REPORTERS’ PRIVILEGE LEGISLATION: ISSUES AND 

IMPLICATIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JULY 20, 2005 

Serial No. J–109–31 

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 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 97 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 

prepared statement .......................................................................................... 98 

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

WITNESSES 

Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, New 

York ....................................................................................................................... 17 

Cooper, Matthew, White House Correspondent, Time Magazine Inc., Washington, D.C. ........................................................................................................... 10 

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut ......... 5 

Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, LLP, Washington, D.C. ........................................................................................................... 19 

Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana .................... 3 

Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New York ............... 13 

Pence, Hon. Mike, a Representative in Congress from the State of Indiana ..... 8 

Safire, William, Political Columnist, New York Times, New York, New York .. 15 

Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service Professor of 

Law, University of Chicago Law School, Chicago, Illinois ................................ 21 

QUESTIONS AND ANSWERS 

Responses of Floyd Abrams to questions submitted by Senators Leahy and 

Durbin ................................................................................................................... 43 

Responses of Matthew Cooper to questions submitted by Senator Durbin ........ 51 

Responses of Lee Levine to questions submitted by Senators Durbin and 

Leahy ..................................................................................................................... 52 

Responses of William Safire to questions submitted by Senator Durbin ............ 72 

Responses of Groffrey R. Stone to questions submitted by Senator Leahy ........ 75 

Questions submitted to Mr. Comey by Senators Leahy and Durbin (Note: 

Responses to written questions were not available at time of printing.) ........ 77 

SUBMISSIONS FOR THE RECORD 

Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, New 

York, prepared statement .................................................................................... 79 

Comey, James B., Deputy Attorney General, Department of Justice, Washington, D.C., prepared statement ....................................................................... 85 

Cooper, Matthew, White House Correspondent, Time Magazine Inc., Washington, D.C., prepared statement ....................................................................... 92 

Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, LLP, Washington, D.C., prepared statement ....................................................................... 99 

Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana, prepared 

statement .............................................................................................................. 115 

Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New York, prepared statement ................................................................................................... 121 

Pence, Hon. Mike, a Representative in Congress from the State of Indiana, 

prepared statement .............................................................................................. 138 

Safire, William, Political Columnist, New York Times, New York, New York, 

prepared statement .............................................................................................. 143 

Page

IV 

Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service Professor of 

Law, University of Chicago Law School, Chicago, Illinois, prepared statement ...................................................................................................................... 148 

Walden, Hon. Greg, a Representative in Congress from the State of Oregon, 

prepared statement .............................................................................................. 166 

(1) 

REPORTERS’ PRIVILEGE LEGISLATION: 

ISSUES AND IMPLICATIONS 

WEDNESDAY, JULY 20, 2005 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 9:37 a.m., in room 

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

Chairman of the Committee, presiding. 

Present: Senators Specter, DeWine, Graham, Cornyn, Leahy, 

Kennedy, Biden, Feinstein, Feingold, Schumer, and Durbin. 

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

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed with our hearing on the 

journalist shield law in the context of legislation which has been 

introduced by Senator Lugar on the Senate side and Representative Pence on the House side, and Senator Dodd has another bill. 

We regret the slight delay in starting these proceedings. Senator 

Leahy and I have been meticulous in beginning at 9:30 on the button, and we are 6 minutes late this morning because of the extraordinary circumstances where we had to work through some problems on the pending nomination of Judge Roberts. And this is a 

complicated day, as most days are in the Senate, but we are looking at a hearing which is, in my opinion, a very important hearing 

on what is the appropriate rule for limiting or protecting sources 

of journalists on grand jury investigations. 

Our focus here will be on whether reporters should be granted 

a privilege to withhold information from the Federal courts, and it 

arises in the celebrated case on an alleged leak where two reporters have been held in contempt and one reporter has been jailed, 

as we all know. The scope of this hearing does not include the issue 

of the leak but the legislation which we are going to be considering. 

The Supreme Court of the United States in a 1972 decision, 

Branzburg v. Hayes, made a determination that the press’ First 

Amendment right to publish information does not include the right 

to keep information secret from a grand jury investigating a criminal matter and the common law did not exempt reporters from 

such a duty. That, of course, leaves it within the purview of the 

Congress to have a reporters’ privilege if the Congress should decide to do so as a matter of public policy. 

It is worth noting that some 31 States and the District of Columbia have enacted statutes granting reporters some kind of privilege. 

2 

We are all well aware of the tremendous contribution of a free 

press in our society and so many lives in ferreting out wrongdoing, 

in exposing Government corruption, in exposing corruption in the 

private sector, and we are mindful of Jefferson’s famous dictum 

that if he had to make a choice between a Government without 

newspapers or newspapers without Government, he would choose 

newspapers without Government. 

So we have some very, very lofty values which are at stake here 

on the value of a free press and what the free press has contributed 

to this country contrasted with the rights of a defendant in a criminal case. And one circuit, the Sixth Circuit, has suggested that it 

would be a denial of constitutional rights to a criminal defendant 

if that defendant did not have access to information in a certain 

context. So these are weighty values indeed. 

We have many witnesses today, so I am going to curtail my opening statement to less than the customary 5 minutes. 

Chairman SPECTER. We have just been advised that Deputy Attorney General James Comey will not be with us. We have his 

statement and the Government’s position, and we have been advised that the House is taking up the PATRIOT Act today, and 

there is a House conference on it, and he is the key witness, the 

key Government official to comment about that. 

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

for the record.] 

Chairman SPECTER. I now yield to my distinguished colleague, 

the Ranking Member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman, and I thank you 

for holding this hearing. We have had a small number of cases that 

have gotten significant national attention, but the question of 

whether or not that is a form of privilege for journalists has vexed 

us since Branzburg v. Hayes that was decided by the Supreme 

Court in 1972. Since that time, 31 States and the District of Columbia have enacted statutes granting some form of privilege to 

journalists. We have tried from time to time to codify a reporters’ 

privilege in Federal law, but those efforts have failed, in part because supporters of the concept found it difficult to agree on how 

to define the scope of what is meant to be a journalist. And now 

with bloggers participating fully in the 24-hour news cycle, we have 

very similar challenges today. 

I have long been a champion of a vibrant and an independent 

press, even when at times they have skewered me. My interest 

comes honestly and early. I am the son of a Vermont printer who 

was a struggling publisher of a weekly newspaper in Waterbury, 

Vermont. In my years in the Senate, I have tried to fulfill the 

ideals of my father of fighting for a free press and a greater transparency in Government. I have long championed the Freedom of 

Information Act to shine a light on Government. Earlier this year, 

I introduced legislation with Senator Cornyn to improve implementation of that critical legislation. We are referred to as ‘‘the political 

odd couple’’ in this regard. I think not at all, this is something that 

3 

should unite both conservatives and liberals to have more sunshine 

on what our Government does. 

Open Government goes hand in hand with freedom of the press. 

But I also know as a former prosecutor that our democracy is nothing without a healthy respect for the law. We have to weight the 

public interest in First Amendment press protection and the public 

interest in solving crime. 

The hearing was not called to address the Valerie Plame leak 

case in particular, but it is impossible to imagine that the investigation is not going to be discussed today. We have heard several 

supporters of a privilege recognizing the fact that the Plame case 

is not particularly sympathetic to their cause because it involves an 

alleged national security leak from the highest level of Government. Then I think we should look at all the different areas where 

a privilege might come forth. 

I want to commend the members that have done the hard work 

of drafting this legislation, but also the witnesses who come here 

with a broad variety of views on this. 

I was concerned when we heard that Deputy Attorney General 

Comey had canceled his appearance. I wanted to ask him why the 

administration opposes these shield laws. I would like to know particularly why. Is it just in this instance, in the current issues before us? Or is it overall? And I think that we leave a big gap without that. 

But, Mr. Chairman, I will follow your example. I will put my 

whole statement in the record. I would like to hear what these witnesses say. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. Well, thank you very much, Senator Leahy. 

Our first witness is Senator Richard Lugar. Elected in 1976, very 

distinguished record before coming to the United States Senate, as 

the Boy Mayor of Indianapolis, and even more distinguished record 

since coming to the Senate, where he now chairs the Foreign Relations Committee. He has introduced Senate bill 1419, which is a 

beginning point of our discussions. 

I think it is worth noting just on an introductory basis because 

I do not intend to ask Senator Lugar any questions—I am not 

going to run that risk—that his bill and Representative Pence’s bill 

is somewhat broader than the attorney-client privilege and the 

physician-patient privilege and goes beyond news gathering. But it 

is a very important piece of legislation which is pending and addresses a subject which is very, very timely. 

Senator Lugar, thank you for being with us today, and we look 

forward to your testimony. 

STATEMENT OF HON. RICHARD G. LUGAR, A UNITED STATES 

SENATOR FROM THE STATE OF INDIANA 

Senator LUGAR. Well, thank you, Mr. Chairman, and I ask that 

my full statement be submitted for the record. 

Chairman SPECTER. It will be made a part of the record, and I 

know it is not necessary to tell panel one about the 5-minute limitation. You men preside all the time, and you impose it rigorously. 

4 

Senator LUGAR. Mr. Chairman, Ranking Member Senator Leahy, 

Senator Cornyn, Senator Feinstein, I appreciate the privilege you 

have given to me and to my colleagues, Senator Dodd and Congressman Pence, to testify on the need for a Federal media shield 

law. 

I believe that the free flow of information is an essential element 

of democracy. In order for the United States to foster the spread 

of freedom and democracy globally, it is incumbent that we first 

support an open and free press nationally here at home. The role 

of the media as a conduit between Government and the citizens its 

serves must not be devalued. 

Unfortunately, the free flow of information to citizens of the 

United States is inhibited. Over two dozen reporters were served 

or threatened with jail sentences last year in at least four different 

Federal jurisdictions for refusing to reveal confidential sources. Judith Miller sits in jail today because she refused to release the 

name of her source or sources for a story she did not write. Matt 

Cooper, who will share his story today, was likewise threatened 

with imprisonment but is not in jail because of a release from his 

obligation to his confidential source. I fear the end result of such 

action is that many whistleblowers will refuse to come forward and 

reporters will be unable to provide our constituents with information they have a right to know. 

In 1972, the America held in Branzburg v. Hayes that reporters 

did not have an absolute privilege as third-party witnesses to protect their sources from prosecutors. 

Since Branzburg, every State and the District of Columbia, excluding Wyoming, has created a privilege for reporters not to reveal 

their confidential sources. My own State of Indiana provides qualified reporters an absolute protection from having to reveal any 

such information in court. 

The Federal courts of appeals, however, have an incongruent 

view of this matter. Each circuit has addressed the question of the 

privilege in a different manner. Some circuits allow the privilege in 

one category of cases, while others, like the Seventh Circuit, have 

expressed skepticism about whether any privilege exists at all. 

Congress should clarify the extraordinary differences of opinion 

in the Federal courts of appeals and the effect it has on undermining the general policy of protection already in place among the 

States. Likewise, the ambiguity between official Department of 

Justice rules and unofficial criteria used to secure media subpoenas 

is unacceptable. There is an urgent need for Congress to state clear 

and concise policy guidance. 

Senator Dodd and I have introduced legislation in the Senate 

that provides the press the ability to obtain and protect confidential sources. It provides journalists with certain rights and abilities 

to seek sources and report appropriate information without fear of 

intimidation or imprisonment. This bill sets national standards 

based on Department of Justice guidelines for subpoenas issued to 

reporters by the Federal Government. Our legislation promotes 

greater transparency of Government, maintains the ability of the 

courts to operate effectively, and protects the whistleblowers that 

identify Government or corporate misdeeds and protects national 

security. 

5 

It is also important to note what this legislation does not do. The 

legislation does not permit rule-breaking, give reporters a license 

to break the law, or permit reporters to interfere with crime prevention efforts. Furthermore, the Free Flow of Information Act does 

not weaken national security. We have carefully constructed a 

three-part test that permits the revelation of a confidential source 

in any manner where disclosure would be necessary to prevent imminent and actual harm to the national security. The national security exception and continued strict standards relating to classified information will ensure that reporters are protected while 

maintaining an avenue for prosecution and disclosure when considering the defense of our country. 

Recently, Reporters Without Borders reported that 107 journalists are currently in jail around the world, including 32 in China, 

21 in Cuba, and 8 in Burma. This is not good company for the 

United States of America. Global public opinion is always on the 

lookout to advertise perceived American double standards. 

I believe that passage of this bill would have positive diplomatic 

consequences. This legislation not only confirms America’s constitutional commitment to press freedom, it also advances President 

Bush’s American foreign policy initiatives to promote and to protect 

democracy. 

When we support the development of free and independent press 

organizations worldwide, it is important to maintain these ideals at 

home. 

I thank the Chairman, the Ranking Member, and this distinguished Committee for holding this timely hearing. I look forward 

to working with each of you to ensure that the free flow of information is unimpeded. 

[The prepared statement of Senator Lugar appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Senator Lugar. We 

turn now to Senator Dodd. 

Representative Pence, we pay a lot of attention to seniority 

around here. 

[Laughter.] 

Chairman SPECTER. He has been here longer, he has been on the 

Hill longer than you have. He was elected to the United States 

Senate in 1980, in a year that brought 18 freshmen Senators, and 

50 percent of his class still remains; whereas, Senator Grassley, a 

member of this Committee, and I only have one-eighth of our class. 

So his 50 percent to our 12 percent is one of his many notable 

achievements. 

Nice to have you with us, Senator Dodd, and we look forward to 

your testimony. 

STATEMENT OF HON. CHRISTOPHER J. DODD, A UNITED 

STATES SENATOR FROM THE STATE OF CONNECTICUT 

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

and Senator Leahy and Senator Cornyn, Senator Feinstein as well. 

Let me commend my colleague from Indiana. Senator Lugar has 

made an eloquent statement this morning in support of this legislation, and I am delighted to join him and join Congressman Pence 

6 

and Congressman Boucher, who are principal sponsors of our companion bill in the House of Representatives. 

This is obviously an unusual occasion for several reasons to be 

here this morning. For one thing, this Committee’s workload has 

gotten a bit heavier since about 9:00 p.m. last evening, and we appreciate that very much. And for another thing, it is not every day 

that public officials or elected officials get to examine the press. 

Usually it is the other way around. And I am sure my colleagues 

will agree that one of the great privileges of public life is regularly 

learning about one’s shortcomings in the fine media organizations 

of our country. And while I say that with some dose of humor, 

there is a nugget of profound truth to it as well, Mr. Chairman. 

As you pointed out—and I think it is worthy of repeating—Jefferson, of course, once said that if we were to choose between a free 

country and a free press, he would choose the latter. He understood 

that nothing was more important to a free people than the free 

flow of information. 

An informed citizenry is the first requirement of a free and selfgoverning people. I think James Madison said it best of all, however, Mr. Chairman. He said, ‘‘Popular government without popular information or the means of acquiring it is but a prologue to 

a farce, a tragedy, or perhaps both.’’ 

Armed with knowledge, our people can govern themselves and 

hold accountable their leaders in public and in private life. Today, 

the principle of a well-informed citizenry as the cornerstone of selfgovernment is at risk, in our view. This morning, as we speak, a 

journalist named Judith Miller sits in a prison cell. Another journalist, Matt Cooper, who sits behind me, whose testimony you are 

going to hear shortly, is with us and not in prison with Ms. Miller 

only by virtue of the particular circumstances of his case. 

Some two dozen other journalists stand subpoenaed or prosecuted in our country at this hour. And what did they do to earn 

these legal burdens and sanctions? Nothing more, in my view, than 

doing their job. They received information from citizens based on 

a pledge to keep the identity of those citizens confidential, and they 

honored that pledge. And for doing their jobs, these men and 

women face litigation, prosecution, and in some cases incarceration. 

We have introduced legislation together to protect the free flow 

of information in our society. This legislation is not about conferring special rights and privileges on members of the Fourth Estate. 

To the contrary, it is intended to protect the rights of all citizens 

to be informed and to inform, including by speaking with journalists in confidence. 

The bill is hardly radical in concept. It is based on Justice Department guidelines and on statutes and/or rules that currently 

exist, Mr. Chairman, in 49 States and the District of Columbia. 

Those State statutes and rules would not be pre-empted. Instead, 

the bill would establish a uniform Federal standard for Federal 

cases involving journalists and their sources. Currently, because 

there is no such standard, there is confusion and incongruity 

among Federal courts. That makes it very, very difficult for a working journalist to know the rules of the road when interviewing witnesses and contemplating offers of confidentiality. 

7 

Our legislation would balance the legitimate and often compelling interests in law enforcement with the critical need in a free 

society to protect the free flow of information. It would achieve this 

balance by protecting the confidentiality of sources while at the 

same time allowing courts to compel journalists to produce information about wrongdoing if that information is essential to an investigation and could not be obtained from other sources. And revisions we have made to our bill would go further, allowing courts 

to compel the disclosure of sources in those cases where, and I 

quote, ‘‘necessary to prevent imminent and actual harm to national 

security.’’ 

Mr. Chairman and members of the Committee, the overriding 

principle we seek to establish with our legislation is rooted in our 

Constitution and in common sense. A free country cannot exist 

without a free press. Forcing journalists to reveal their sources 

must be a last, not a first, resort for prosecutors and civil litigants. 

Imagine for a moment what would happen if citizens with knowledge of wrongdoing would not or could not come forward and speak 

confidentially with members of the press. Serious journalism would 

virtually cease to exist in my view. Wrongdoing would not be uncovered. We would never have learned about the crimes known as 

Watergate or the massive fraud called Enron but for the willingness of sources to speak in confidence with reporters. 

When journalists are hauled into court by prosecutors, when they 

are threatened with fines and imprisonment if they do not divulge 

the sources of their information, then we are entering a dangerous 

territory indeed for a democracy because that is when citizens will 

fear prosecution simply for stepping out of the shadows to expose 

wrongdoing. When that happens, the information our citizens need 

to govern will be degraded, making it more and more difficult to 

hold accountable those in power. And when the public’s right to 

know is threatened, then all other liberties that we hold dear are 

threatened in my view. 

We are under no illusions, Mr. Chairman, as to the difficulty of 

our task in advancing this legislation. The Justice Department 

raises several concerns about our bill, and we have addressed 

them, I think. We believe we have already addressed them with the 

revisions contained in Senate bill 1419. Most importantly, as I 

mentioned a moment ago, we qualify the protection of sources 

where necessary to prevent imminent harm to the national security. 

You may hear the Department, nevertheless, claim, as it does in 

written testimony, that the legislation would pose a great threat to 

public safety. If that is so, then wouldn’t we expect to see great 

threats to public safety in those States that have shield laws which 

are at least as protective as the shield law that we propose? Indiana, which my colleague Senator Lugar has already mentioned, has 

an absolute protection for reporters from having to reveal any information in court. Senator Lugar and Congressman Pence will correct me if I am wrong, I am sure, but I am unaware that Indiana 

is beset with any unusual lack of public safety relative to other 

States. 

Moreover, if this legislation is harmful to law enforcement, as the 

Justice Department suggests, then why did 34 State Attorneys 

8 

General submit an amicus brief to the Supreme Court in the Miller 

and Cooper case, essentially arguing for a Federal shield law along 

the lines of what we have drafted? 

You may also hear the Department tell you that there is no need 

for Federal legislation in the absence of a showing that sources are 

drying up and that journalists are unable to conduct investigative 

reporting. I would respectfully, Mr. Chairman, direct the Committee’s attention and the Department of Justice to page 3 of the testimony of Mr. Pearlstine. In it he says, and I quote, ‘‘Valuable 

sources have insisted that they no longer trusted the magazine and 

that they would no longer cooperate on stories.’’ 

I would also direct the Committee and the Department to the 

June 30, 2005, edition of the Cleveland Plain Dealer, one of our nation’s most respected newspapers. On that day, the paper announced that it was withholding publication of two stories, and I 

quote, ‘‘of profound importance to the public.’’ The stories are based 

on leaked information, and the paper does not want to take the 

risk that its journalists will be prosecuted to reveal their sources. 

Mr. Chairman and members of the Committee, I suggest that the 

standard for Federal legislation set by the Department of Justice 

itself has been met, and it is time to act, I think, to draft such legislation. 

I thank you for your patience in listening to me. 

Chairman SPECTER. Thank you very much, Senator Dodd. 

We turn now to Representative Pence, who has introduced companion legislation in the House, House bill 581. Thank you for coming over today, Representative Pence, and the floor is yours. 

STATEMENT OF HON. MIKE PENCE, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF INDIANA 

Representative PENCE. Thank you, Chairman. Thank you for 

holding this hearing, and my gratitude extends, of course, to the 

Ranking Member and to all the distinguished members of the Senate Committee on the Judiciary. It is very humbling for me to be 

here and have the opportunity to address this Committee, and particularly to do so at the side of Senator Chris Dodd, and my Hoosier hero and mentor, Senator Richard Lugar. 

Enshrined in the First Amendment of the Constitution, we all 

know, are these words: ‘‘Congress shall make no law...abridging the 

freedom of speech, or of the press.’’ 

The freedom of speech and the press form the bedrock of our democracy by ensuring the free flow of information to the public. 

Although Thomas Jefferson warned that, ‘‘Our liberty cannot be 

guarded but by the freedom of the press, nor that limited without 

danger of losing it,’’ today this freedom is under attack. 

As this city engages in a familiar clash along the fault lines of 

the politics of personal destruction, a much greater scandal languishes in a quiet prison cell in suburban Washington, D.C., in the 

sad image of an American journalist behind bars, whose only crime 

was standing up for the public’s right to know. 

And Judith Miller is not alone. 

In the past year, nine journalists have been given or threatened 

with jail sentences for refusing to reveal confidential sources and 

9 

at least a dozen more have been questioned or on the receiving end 

of subpoenas. 

Compelling reporters to testify, and in particular, compelling reporters to reveal the identity of confidential sources, intrudes on 

the news-gathering process and hurts the public. 

Without the assurance of confidentiality, many whistleblowers 

will simply refuse to come forward, and reporters will be unable to 

provide the American public with the information they need to 

make decisions as an informed electorate. 

But with all this focus on news gathering, it is important that 

we state clearly: Protecting a journalist’s right to keep a news 

source confidential is not about protecting reporters; it is about protecting the public’s right to know. 

As a conservative who believes in limited Government, I believe 

that the only check on Government power in real time is a free and 

independent press. And it was in that spirit that introduced the 

Free Flow of Information Act in the House of Representatives, 

along with the bipartisan support and cooperation of my colleague, 

Representative Rick Boucher. I also would acknowledge my profound gratitude for the efforts in the Senate of my colleagues on 

a similar measure. 

Our bill would simply set national standards for subpoenas 

issued to reporters by any entity of the Federal Government, and 

we truly believe that it strikes a proper balance between the 

public’s interest in the free dissemination of information and the 

public’s interest in law enforcement. 

In 1973, the Department of Justice adopted its Policy with Regard to the Issuance of Subpoenas to Members of the News Media. 

That policy has been in continuous operation for more than 30 

years and sets standards that have to be met by Federal officials 

before the issuing of a subpoena to a news media in a Federal 

criminal or civil case. Our bill, it is important to state, uses the 

standards of that policy as a template for a Federal shield law that 

would apply to all Federal judicial, executive, and administrative 

proceedings, except where confidential sources are involved. 

In the case of confidential sources, the bill originally provided, as 

has been said, that a reporter could not be compelled to reveal a 

source. That language has been changed in legislation filed this 

Monday in the House and the Senate to allow for a qualified privilege only. Under our revised bill, a reporter cannot be compelling 

to reveal a source unless the disclosure of the identity of a source 

is necessary to prevent imminent or actual harm to national security. 

Legitimate questions were raised, Mr. Chairman, about our original draft, and we dialogued consistently with the Department of 

Justice and other outside organizations, and we feel that the revised version of our legislation strikes a careful balance. And while 

the Department of Justice has commented rather thoroughly on our 

first bill, we look very much forward to their thoughtful analysis 

of our revised version of the Free Flow of Information Act. 

There are other changes as well. My colleagues have pointed out 

that this legislation is already the law in 31 States, including Indiana. But I do want to acknowledge, as my colleague Senator Dodd 

said, that we recognize that it will not be easy for this Committee, 

10 

particularly in the wake of last night’s events, to move this legislation. 

Also, we find ourselves in the midst of an unfurling controversy. 

Nevertheless, it is my fervent hope and my prayer that this Committee and this Congress will see beyond our times and their controversies and seize the opportunity to develop clear national 

standards that will protect the news-gathering function and promote good Government. 

The Liberty Bell is inscribed with these ancient words: ‘‘Proclaim 

liberty throughout all the land unto all the inhabitants thereof.’’ 

That is our charge, and I believe now is the time for this Congress 

to proclaim liberty, to reaffirm our commitment to a free and independent press. Nothing less than the public’s right to know is at 

stake. 

[The prepared statement of Representative Pence appears as a 

submission for the record.] 

Chairman SPECTER. Thank you very much, Representative 

Pence. 

Does anybody on the panel have questions? 

[No response.] 

Chairman SPECTER. Good. Thank you all very much. We appreciate your being here. 

Chairman SPECTER. We will now call the panel with Mr. Matthew Cooper, White House correspondent for Time Magazine; Mr. 

Norman Pearlstine, Editor-in-Chief of Time; Mr. William Safire, 

New York Times Company, political columnist; Mr. Floyd Abrams, 

a leading expert on the First Amendment from Cahill, Gordon & 

Reindel; Mr. Lee Levine, Washington, D.C., firm of Levine, Sullivan, Koch & Schulz; and Professor Geoffrey Stone, Distinguished 

Professor of Law from the University of Chicago. 

Welcome, gentlemen. We will begin with Mr. Matthew Cooper, 

who has served as White House correspondent for Time Magazine 

since June of 2003, a post which he previously held for U.S. News 

& World Report. He has written the ‘‘White House Watch’’ column 

for the New Republic, been a national correspondent for Newsweek. 

During the 1980s, he was editor of the Washington Monthly. He 

has written for publications including the New York Times, the 

Washington Post, and the Los Angeles Magazine. 

Thank you for joining us here today, Mr. Cooper, to tell the Committee about your own personal experience in this very important 

matter. As I think all of you have been advised, all of the statements will be made fully a particular of the record, and we have 

limited the oral presentations to 5 minutes to give the maximum 

amount of time for questions and answers by the panel. 

STATEMENT OF MATTHEW COOPER, WHITE HOUSE 

CORRESPONDENT, TIME MAGAZINE INC., WASHINGTON, D.C. 

Mr. COOPER. Thank you, Mr. Chairman, Senator Feinstein, Senator Graham, and Senator DeWine. I am honored to be here today 

in such distinguished company, especially with my boss, Norman 

Pearlstine, the editor-in-chief of Time Incorporated. I agree with 

his eloquent argument for some kind of national shield law. 

I do not intend, Mr. Chairman to discuss the ongoing investigation into the leak of a covert CIA agent or my role in it. 

11 

Chairman SPECTER. We appreciate that very much. 

[Laughter.] 

Mr. COOPER. I do, too. 

What I do want to do is try to give the perspective of a regular 

working journalist of 19 years on what it is like to do one’s job 

these days in the absence of a Federal shield law. 

But let me say, Mr. Chairman, first that I come here with real 

humility, not just because I am the only ink-stained wretch on this 

august panel, but because what we in the media are asking for is 

quite formidable, an exemption from some of the duties of citizenship. We are asking for a privilege that is not afforded to farmers 

or manufacturers. To be sure, 49 States, through court rulings and 

statutes, have decided to give journalists, and thus the public, some 

form of legal protection, but it is still much to ask Congress to 

grant us a degree of Federal protection, and I think it behooves us 

in the media to do so humbly. 

But ask we do, and with good reason, I think. I do not have 

strong feelings about which statute makes the most sense and how 

the privilege should best be defined. But I do want to talk about 

how the rules of the road are, to put it mildly, quite confusing for 

a working journalist such as myself in the absence of any clear 

Federal standard. 

I might add this also applies to any public official, from the 

school board to the Senate, or from that matter from the grocer to 

the captain of industry who chooses to talk with the media using 

some degree of confidentiality. 

Right now, if I pick up the phone and call a Senator or his or 

her staff or a civil servant and they say, ‘‘Don’t quite me on this 

but’’ or ‘‘Don’t identify me but,’’ I cannot really know what I am 

getting myself into, assuming that what follows is important and 

controversial enough to rise to the level of litigation. Will it end up 

in State court where I have protections? Or in Federal court where 

I may have none? If it is a civil trial that stems from the conversation, I would seem to have more protection than if it leads to a subpoena before a criminal grand jury. The rules of the road as I try 

to do my job as a reporter are chaotic at best. In the case of my 

imprisoned colleague, Judith Miller of the New York Times, several 

courts held that she had no right to defy a subpoena before a grand 

jury, but still another Federal court upheld her right and the right 

of the New York Times to refuse to turn over phone records. So the 

Supreme Court has not chosen to clarify these rules, but you can. 

I have confidence that the thorny question of ‘‘who is a journalist’’ can be reconciled through thoughtful debate and a look at 

decades of State experience where the press, after all, thrives and 

law enforcement is able to put criminals in jail every day. The proposed bipartisan statutes are a good starting place. 

It is also worth remembering that this privilege is about the 

public’s right to know. Without whistleblowers who feel that they 

can come forward to the reporters with a degree of confidence, we 

might never have known the extent of the Watergate scandal or 

Enron’s deceptions or other events that needed to be exposed. So 

it is not about us journalists as some priestly class, but it is about 

the public and our democracy. 

12 

One might ask, Mr. Chairman, Why now? Reporters broke scandals without a national shield law, so why one now? I would offer 

this thought: In the 33 years since the Branzburg decision, the ambiguity in the law has not come at a great cost. There have been 

notable clashes between the press and prosecutors, and occasionally a journalist has found him- or herself in jail, generally just for 

a few hours, although tragically now for longer circumstances. I 

have some personal experience with this, of course, having almost 

gone to jail myself but for a last-minute waiver of one of my 

sources. But those cases generally have been so rare as to be truly 

aberrant. For the most part, there has been a civil peace between 

prosecutors who have avoided subpoenaing journalists, and the two 

camps have generally stayed out of each other’s way. Recently, 

though, we have seen a run of Federal subpoenas of journalists, not 

only in my case but also in others, like the investigation into the 

anthrax killer and the case of Wen Ho Lee. 

I do not want to get into whether those subpoenas are good policy or likely to be upheld through the appellate process, but I do 

think everyone—prosecutors and journalists alike—would benefit 

from knowing what the rules are. 

In the meantime, it is hard to imagine another area of American 

life where the gap between the rights one is afforded in Harrisburg 

or Montpelier or Sacramento or Austin are so lavish compared to 

what one is provided under Federal law. Michael Kinsley, the editorial page editor of the Los Angeles Times, who has been a skeptic 

of a Federal privilege for journalists, has nonetheless noted the cost 

of confusion. ‘‘If journalists routinely promise anonymity and routinely are forced to break those promises, this will indeed create a 

general ‘chilling effect’ on leaks. But the real issue is whether the 

promises should have been made. Under a clear set of rules, the 

‘chilling effect’ would be limited—not perfectly, but primarily—to 

leaks that ought to be chilled and to promises of anonymity that 

should not be made.’’ 

As someone who relies on confidential sources all the time, Mr. 

Chairman, I simply could not do my job reporting stories, big and 

small, without being able to speak to officials under varying degrees of anonymity. It is timely, Mr. Chairman, that Bob Woodward’s account of his relationship with Mark Felt, the source 

known as Deep Throat, has come out this summer for it offers us 

a powerful reminder of the importance of anonymous sources. Prosecutors chose not to subpoena Woodward and Bernstein, but today 

I wouldn’t be so sure they would show the same restraint. And so 

we need some clarity. And as a working journalist, I would like to 

know better what promises I can legally make and which ones I 

cannot. This would benefit me as a reporter, but, again, it would 

also benefit those who talk to reporters and the public’s right to be 

informed. 

Thank you, Mr. Chairman. 

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

for the record.] 

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

We turn now to Mr. Norman Pearlstine, editor-in-chief of Time 

for a decade. He has had extensive experience in the field: executive editor of the Wall Street Journal, executive editor of Forbes 

13 

Magazine, a bachelor’s degree from Haverford College, a law degree 

from the University of Pennsylvania, and that suggests, accurately 

I understand, some Philadelphia area roots. 

Thank you for coming in, Mr. Pearlstine, and we look forward to 

your testimony. 

STATEMENT OF NORMAL PEARLSTINE, EDITOR-IN-CHIEF, 

TIME INC., NEW YORK, NEW YORK 

Mr. PEARLSTINE. Thank you very much, Mr. Chairman and members of the Committee. Since 1995, I have served as editor-in-chief 

of Time Inc., the largest publisher of general interest magazines in 

the world, including Time, Fortune, and Sports Illustrated, and almost 140 other titles. I am honored to have this opportunity to testify in support of the proposed Federal shield law to protect journalists from being compelled to testify about confidential sources. 

This type of protection, which has been adopted in one form or 

another by 49 States and the District of Columbia, is commonly 

called a ‘‘reporter’s privilege,’’ but this is something of a misnomer. 

The laws are really intended to protect the public by ensuring the 

free flow of information about governmental activities and other 

matters of public concern. I believe there is an urgent need for such 

protection at the Federal level. 

The absence of Federal legislation has created extraordinary 

chaos, limiting the public’s access to important information that is 

so necessary in a democratic society. The Supreme Court’s sharply 

divided decision 33 years ago in Branzburg v. Hayes has mystified 

courts, lawyers, and journalists alike. As a result, the Federal 

courts are in a state of utter disarray about whether a reporter’s 

privilege protecting confidential sources exists. The conflicting legal 

standards throughout the Federal courts defeat the nearly unanimous policies of the States in this area. This uncertainty chills essential news gathering and reporting. It also leads to confusion by 

sources and reporters and the threat of jail and other harsh penalties for reporters who do not know what promises they can make 

to their sources. 

I recently witnessed the problems firsthand. As the Committee is 

no doubt aware, for almost 2 years Time Inc. and its reporter Matthew Cooper fought against compelling disclosure of confidential 

sources in response to grand jury subpoenas in Special Counsel 

Patrick Fitzgerald’s investigation of the Valerie Plame affair. The 

Federal district judge presiding over the matter called this battle 

a ‘‘perfect storm’’ in which important First Amendment rights 

clashed with the important interest in law enforcement. We fought 

all the way to the Supreme Court, urging it to overturn Branzburg, 

and we lost. 

My decision to turn over confidential documents to the Special 

Counsel after we had pursued every possible legal remedy was the 

toughest decision of my career—and one I should never have had 

to make. The experience has only deepened my commitment to ensure protection for confidential sources and made clear to me how 

much we need Federal legislation. 

It is Time Inc.’s editorial policy that articles in our publications 

should identify sources by name whenever possible. But sometimes 

we can obtain information only by promising confidentiality to a 

14 

source, because many persons with important information won’t 

speak to the press unless they are assured anonymity. Information 

given in confidence is especially valuable when it contradicts or undermines public positions asserted by governments or powerful individuals or corporations. Without confidential sourcing, the public 

would never have learned the details of many situations vital to its 

interests. 

To cite a few recent examples of stories of significant public interest that appeared in our magazines, I recently worked with colleagues at Time on stories about a suicide bomber in Iraq and the 

vulnerability of our Nation’s commercial nuclear facilities, should 

they be subjected to terrorist attack. And I worked with writers 

and editors at Sports Illustrated on stories about the use of 

steroids in professional sports. None of these stories could have 

been published without reliance on confidential sources. 

Following my decision to obey the courts by providing the Special 

Counsel with Time Inc.’s Plame file, I met last week with Time’s 

Washington bureau and later that day with many of its New York 

writers and editors. Some of them showed me e-mails and letters 

from valuable sources who insisted that they no longer trusted the 

magazine. The chilling effect is obvious. 

Federal law recognizes evidentiary privileges for communications 

between spouses, therapists and patients, attorneys and clients, 

and clergy and penitents. Although these privileges may lead to the 

loss of evidence, they are viewed as necessary to protect and foster 

communications deemed valuable to society as a whole. The same 

should be true for communications between reporters and confidential sources. 

The Plame case is part of a disturbing trend. In the last 2 years, 

dozens of reporters have been subpoenaed in criminal and civil 

cases to reveal their confidential sources, many of whom face the 

prospect of imminent imprisonment. The use of such subpoenas in 

the Plame case represents a profound departure from the practice 

of Federal prosecutors when this case is compared to other landmark cases involving confidentiality over the past 30 years. Neither 

Archibald Cox, the Watergate special prosecutor, nor Judge John 

Sirica, for example, sought to force the Washington Post or its reporters to reveal the identity of Deep Throat, the prized confidential source. 

The 34 States and the District of Columbia said it best in their 

amicus brief, urging the Supreme Court to grant review in the 

Plame case. The States declared in their brief that a Federal policy 

that allows journalists to be imprisoned for engaging in the same 

conduct that these State privileges encourage and protect bucks 

that clear policy of virtually all States and undermines both the 

purpose of the shield laws and the policy determinations of the 

State courts and legislatures that adopted them. 

I strongly believe in the need for confidential sources, and we 

must protect our sources when we grant them confidentiality. But 

defying court orders, accepting imprisonment and fines, shouldn’t 

be our only way of protecting sources or resisting coercion. Put simply, the issues at stake are crucial to our ability to report the news 

to the public. Without some Federal protection for confidential 

sources, all of this is in jeopardy. The time has come from enactVerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC
15 

ment of a shield law that will bring Federal law into line with the 

laws of the States and ensure the free and open flow of information 

to the public on the issues of the day. 

Thank you very much. 

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

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

We turn now to Mr. William Safire, for more than three decades 

a political columnist with the New York Times, a 1978 Pulitzer 

Prize winner. He joined President Nixon’s Presidential campaign in 

1968, actually before the President was elected, and later became 

a senior White House speech writer. He writes a Sunday column 

of the New York Times on language, and just on a personal note, 

I have been a fan of Bill Safire’s for a long time, and I am sort of 

interested to hear how he does verbally, whether his syntax is as 

perfect as it is when he reduces it the written form. 

[Laughter.] 

Chairman SPECTER. I am especially interested in the Q&A where 

we can get extemporaneous, Mr. Safire. 

Senator Biden. Mr. Chairman, 10 seconds. I have been looking 

forward to questioning Bill Safire under oath my whole life. 

[Laughter.] 

Chairman SPECTER. You other five gentlemen are excused. 

STATEMENT OF WILLIAM SAFIRE, POLITICAL COLUMNIST, 

NEW YORK TIMES COMPANY, NEW YORK, NEW YORK 

Mr. SAFIRE. I will watch my language. 

Mr. Chairman, I am here to urge Congress to pass a law to stop 

the Government and the courts from their present, dangerous 

course of trying to deny the public its right to the free flow of news. 

The press’ freedom to publish the news without prior restraint is 

not in doubt. But now under attack is what comes before publication: the ability of journalists to gather the news. To do that work 

effectively, we must have inside sources willing to tell us what Government or corporate officials do not want the public to know. The 

key to opening up an inside source is to establish mutual trust. 

When we say we would go to jail to protect their anonymity, that 

is not just hyperbole. Over the years, trustworthy reporters have 

established that principle at great cost, just as a courageous 

woman is doing in prison today. 

That is why 49 States and the District of Columbia have shield 

laws, or case law in State courts, to stop overzealous prosecutors 

from undermining that trust by forcing reporters to identify 

sources. By protecting the reporter who is protecting a source, the 

shield achieves its ultimate goal: to protect the people’s access to 

what is really going on. 

Have these State shield laws harmed law enforcement? On the 

contrary, they have led to the exposure of corruption. That is why 

the great majority of State Attorneys General recently joined a 

brief supporting the protection of the identity of reporters’ sources. 

As a card-carrying right-wing libertarian federalist, I am proud 

that the States have led the way, and now is the moment for the 

Congress to profit from the experience of the chief law officers of 

so many States by extending the shield to Federal courts. 

16 

Would this mean that the journalists get special treatment? Before compelling a person to testify, the law recognizes the strong 

social value of the confidentiality of spouses, of lawyers, doctors, 

and clergy. In 1996, that was extended to psychotherapists. Members of those groups are not above the law because the law recognizes competing values. Judges must balance the citizen’s obligation to give evidence with society’s obligation to protect relationships built on common solemn confidences. 

More than ever, journalists across the Nation are now in danger 

of being held in contempt. The reasonable protections to reporters’ 

notes and confidences that have been in the Department of Justice 

guidelines to its prosecutors for three decades are inadequate to 

the stormy present. The legislation before you incorporates those 

balancing guidelines, applies them to the crucial issue of the identity of sources, and at last gives them the force of law, even to special prosecutors. 

Let me add a personal note. As the Chairman suggested, I have 

always been a language maven. Thirty years ago, I asked Justice 

Potter Stewart to help me find the origin of the phrase ‘‘chilling effect.’’ He checked around the Supreme Court, and Justice Brennan 

reported having written a 1965 decision striking down a State’s intrusion on civil liberty because of its ‘‘chilling effect upon the exercise of First Amendment rights...’’ 

Today we have two chilling effects taking place here in Washington, one general, one specific. 

The general chill is on the network of useful contacts and the 

web of genuine friendships that develop over the years among 

many journalists and politicians. You run into each other at a ball 

game or at a dinner, shmooz a little on a bunch of topics, pick up 

a lead or toss out an idea, later act on it or pass it along to a colleague or forget it. That is how information flows in real life, and 

it is how the public gets the news beyond the handouts. 

But now we see a reporter in prison for not revealing part of a 

conversation she may have had about a story she did not write. As 

a result, many of us feel a general chill in the air and will think 

twice about what we say in private to each other as well as outsiders. In the new world of threatened contempt, there are no innocent questions, and a grunt or a nod can get you in trouble. 

And there is a more specific chilling effect taking place right 

now. It imposes a mental ‘‘prior restraint’’ on the gathering of news 

and the expression of opinion. I have always been able to write 

what I have learned and what I believe ‘‘without fear or favor,’’ in 

the Times’ phrase, freely taking on the high and mighty. But I cannot do that this morning. 

I am seething inside because I cannot tell you what I really think 

of the unchecked abuse of prosecutorial discretion. I cannot blaze 

away at the escalating threats of a Federal judiciary that is urgently in need of balancing guidance by elected representatives of 

the people. For the first time I have to pull my punches. 

The reason is I am afraid—I am afraid of retaliation against Federal prisoner 45570093, whose byline in the New York Times is Judith Miller. This Pulitzer Prize winning reporter, who earned the 

trust of the U.S. forces with whom she was embedded in Iraq, has 

accepted the painful consequences of daring to call public attention 

17 

to the unbalanced, unwise, ever-growing application of the contempt power. 

I must not anger or upset those who control her incarceration 

and who repeatedly threaten to pile on with longer punishment as 

a criminal unless she betrays her principles as a reporter. Because 

any harsh criticism of them from me might well be taken out on 

her, I am constrained to speak gently, as if concerned about the 

treatment of a hostage. That duress, I submit, is an example of 

what Justice Brennan had in mind about a ‘‘chilling effect.’’ I can 

testify that it works all too well, which is why I will now shut up 

and look to Congress to pass a law balancing our values and taking 

the chill out of the air. 

Thank you. 

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

for the record.] 

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

Safire. 

Our next witness is Mr. Floyd Abrams, the firm Cahill, Gordon 

& Reindel, Visiting Professor of First Amendment Law at the Columbia Graduate School of Journalism, one of the most distinguished First Amendment lawyers in America, currently represents 

the New York Times reporter Judith Miller, was co-counsel for the 

Times in the Pentagon Papers case, and has represented so many 

media entities the list is virtually endless: ABC, NBC, CBS, CNN, 

Time, Business Week, The Nation, Reader’s Digest. A graduate of 

Cornell University and the Yale Law School, one of the younger fellow from 1960. 

Thank you for rearranging your schedule, Mr. Abrams to join us 

here today. 

STATEMENT OF FLOYD ABRAMS, PARTNER, CAHILL, GORDON 

& REINDEL, LLP, NEW YORK, NEW YORK 

Mr. ABRAMS. Thank you, Chairman Specter, and thank you for 

inviting me to be here today. It is a great honor for me to appear 

here once again. I am especially pleased to do so in the context of 

proposed legislation relating to a Federal shield law. 

I would like to make clear at the start that I speak for myself 

today and not on behalf of any clients. 

I am sorry that Deputy Attorney General Comey was unable to 

be here today since I looked forward to hearing his responses to 

some of your questions. Notwithstanding that, I thought I would 

take the liberty of responding on my own to one thing that he does 

say in his prepared statement; that is, if you were to adopt the legislation before you, you would be, in his language, ‘‘effectively overruling the Branzburg case.’’ The Branzburg case could hardly be 

clearer that it rests with you to decide if you wish to have a Federal shield law. The language of the Court is clear. At the Federal 

level, the Court said, ‘‘Congress has the freedom to determine 

whether a statutory newsman’s privilege is necessary and desirable 

and to fashion standards and rules as narrow or broad as deemed 

necessary.’’ 

So this is within your purview, and it is up to you to decide what 

steps, if any, to take in this area. My own view is that as we meet 

today, the ability of journalists to gather news is imperiled. I have 

18 

worked in this area for 37 years now, and that problem, the problem of gathering news, has, in my view, never been as seriously 

threatened as it is today. 

For all the ambiguity of the Branzburg case—and more than one 

lawyer has made a good living over the last 33 years purporting 

to interpret what Justice Powell’s cryptic and enigmatic concurring 

opinion means—Branzburg itself has been interpreted in markedly 

different ways by lower courts throughout the country, and the Supreme Court has given no indication that it intends, short term at 

least, to resolve all the conflicts that have arisen as to whether 

there is any protection in the grand jury area, whether there is any 

protection in the criminal law area, as to whether there is more 

protection for journalists in civil cases and the like. 

As Matt Cooper testified before you today, there is simply no way 

to know. And what I would urge upon you is that it is simply unacceptable that Federal law should offer no predictable way for journalists to know what they can do and for them to be in a situation 

where they can protect their confidential sources in a Nation in 

which 49 of our 50 States do provide such protection, and in which 

virtually every democratic country outside the United States, countries without a First Amendment, provide such protection. 

The notion that we provide or may provide no protection in Federal courts when countries such as France and Germany and Austria provide full protection and countries from Japan to Argentina 

and Mozambique to New Zealand provide such protection using 

language we would understand as being First Amendment-like in 

its nature is, it seems to me, unacceptable. 

In my view, when a journalist speaks to her sources and promises confidentiality, she should keep her word and be protected in 

keeping her word. That is not the current state of affairs. 

When the Branzburg case was decided, it was less than clear to 

many observers, including journalists, that any legislation was 

needed in this area. And for most of the 33 years that have passed, 

journalists won most cases and did not suffer much when they lost 

in most cases. That has changed radically in recent years, and I 

would say in recent days. In the last year and a half, more than 

70 journalists and news organizations have been embroiled in battles with Federal prosecutors. Dozens have been asked to reveal 

their confidential sources. Some are or were virtually at the entrance to jail, and Judith Miller, not far from here, sits in a cell 

one floor removed from that of Zacarias Moussaoui. 

It is time to adopt a Federal shield law. 

Thank you, Mr. Chairman. 

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

for the record.] 

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

Our next witness is Mr. Lee Levine, founding partner of Levine, 

Sullivan, Koch & Schulz; one of the Nation’s leading First Amendment lawyers, very broad practice in 20 States and the District of 

Columbia; Adjunct Professor at the Georgetown University Law 

Center; and author of News Gathering and the Law; graduate of 

the University of Pennsylvania where he got his bachelor’s degree, 

and law degree from Yale. Let me compliment you on two excellent 

choices, Mr. Levine. 

19 

Mr. LEVINE. Thank you. 

Chairman SPECTER. And served as law clerk to Judge Irving 

Kaufman. He represents two news reporters who had produced stories regarding Mr. Wen Ho Lee, the former nuclear scientist. 

Thank you for coming in today, Mr. Levine, and the floor is 

yours. 

STATEMENT OF LEE LEVINE, FOUNDING PARTNER, LEVINE, 

SULLIVAN, KOCH & SCHULZ, LLP, WASHINGTON, D.C. 

Mr. LEVINE. Thank you, Mr. Chairman, and members of the 

Committee. At the Committee’s request I will briefly describe recent experience concerning the reporters privilege in the Federal 

courts. 

For almost three decades following the Supreme Court’s decision 

in Branzburg v. Hayes, subpoenas issued by federal courts seeking 

the disclosure of journalists’ confidential sources were exceedingly 

rare. It appears that no journalist was finally adjudged in contempt, much less imprisoned, for refusing to disclose a confidential 

source in a Federal criminal matter during the last quarter of the 

20th century. That situation, as you have heard, has now changed. 

An unusually large number of subpoenas seeking the names of 

seeking confidential sources have been issued by Federal courts in 

a remarkably short period of time. Indeed, three Federal proceedings in Washington, D.C. alone have generated such subpoenas 

to roughly two dozen reporters and news organizations, seven of 

whom have been held in contempt in less than a year. 

In all, over the last four years, three Federal Courts of Appeals 

have affirmed contempt citations issued to reporters who declined 

to reveal confidential sources. Each Court imposing prison sentences on journalists more severe than any previously known in 

American history. Decisions such as these have emboldened private 

litigants as well, especially since they, like special prosecutors, are 

not bound by the Department of Justice guidelines. 

In one pending civil suit, for example, four reporters have been 

held in contempt for declining to reveal their confidential sources 

of information in litigation instituted against the Government by 

Dr. Wen Ho Lee. And the plaintiff in another civil suit, Dr. Stephen Hatfill, issued subpoenas earlier this year to a dozen news organizations, seeking to compel an even larger number of reporters 

to disclose the identities of their confidential sources. 

Congress and the public should be concerned about the imposition of such severe sanctions. In recent proceedings in the Federal 

courts, journalist after journalist has convincingly testified about 

the important role confidential sources play in enabling them to do 

their jobs. In my written testimony I recount several such examples. Consider just one. In 1977 Walter Pincus of the Washington 

Post relied on anonymous sources in reporting that President 

Carter planned to move forward with plans to develop a so-called 

‘‘neutron bomb,’’ a weapon that could inflict massive casualties 

through radiation without extensive destruction of property. The 

public and congressional outcry in the wake of these news reports 

spurred the United States to abandon plans for such a weapon, and 

no administration has since attempted to revive it. 

20 

Mr. Pincus, who never received a subpoena about the neutron 

bomb or any other matter in the course of his distinguished decades-long career has now received two, one from the Special Counsel in the Valerie Plame matter and another from Dr. Wen Ho Lee. 

Needless to say, the prospect of substantial prison terms and escalating fines for honoring promises to sources threatens that kind 

of journalism. As Los Angeles Times reporter and Pulitzer Prize recipient Bob Drogin, who himself has been held in contempt in the 

Wen Ho Lee case, has testified, ‘‘I have thought long and hard 

about this, and unlike you attorneys here in the room, I do not 

have subpoena power or anything else to gather information. I 

have what credibility I have as a journalist. I have the word that 

I give to people to protect their confidentiality. If I violate that 

trust, then I believe I can no longer work as a journalist.’’ 

As you have heard, in the wake of the judicial decisions about 

which I have spoken this morning, the Cleveland Plain Dealer recently decided that it was obliged to withhold from publication two 

investigative reports because they were predicated on documents 

provided by confidential sources. Doug Clifton, the newspaper’s editor has explained that the public would have been well served to 

know about these stories, but that publishing them would, and I 

quote, ‘‘almost certainly lead to a leak investigation and the ultimate choice: talk or go to jail. Because talking isn’t an option and 

jail is too high a price to pay, these two stories will go untold for 

now.’’ 

The situation that currently exists in the Federal courts has not 

been replicated in the States. As you have heard, the Attorneys 

General of 34 States, each of whom is responsible for the enforcement of the criminal law in their respective jurisdictions, recently 

urged the Supreme Court to recognize a Federal reporters’ privilege. In so doing, the Attorneys General convincingly demonstrated 

that their shield laws have had no material impact on law enforcement or on the discovery of evidence in judicial proceedings, civil 

or criminal. 

Journalists have heretofore looked to the Supreme Court to address the confusion that now surrounds the reporters’ privilege. 

The Supreme Court, however, has consistently declined to intervene, most recently in the Miller and Cooper cases. 

Nevertheless, in Branzburg itself, as Mr. Abrams noted, Justice 

White’s opinion for the Court emphasized that recognition of a reporters’ privilege more naturally falls within the province of the 

Congress. ‘‘At the Federal level,’’ Justice White wrote, and I quote, 

‘‘Congress has the freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards 

and rules as narrow or broad is deemed necessary to deal with the 

evil discerned.’’ 

Members of the Committee, given that, I believe the time has 

now come for congressional action. 

Thank you. 

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

for the record.] 

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

Our final witness is Professor Geoffrey Stone, Harry Kalven Distinguished Professor of Law at the University of Chicago since 

21 

1994, and previously was Dean at that prestigious law school; 

served as a visiting professor at New York University School of 

Law; bachelor’s degree from Wharton, and law degree from the 

University of Chicago; clerked for Judge J. Skelly Wright; widely 

recognized as one of America’s leading experts on the First Amendment. 

Thank you for being here today, Mr. Stone, and the floor is 

yours. 

STATEMENT OF GEOFFREY R. STONE, HARRY KALVEN, JR., 

DISTINGUISHED SERVICE PROFESSOR OF LAW, THE UNIVERSITY OF CHICAGO LAW SCHOOL, CHICAGO, ILLINOIS 

Mr. STONE. Thank you for having me, Mr. Chairman. 

I strongly support the enactment of a Federal journalist-source 

privilege, both to protect a free and independent press in this Nation, and to preserve and to protect an open public debate. I want 

to briefly address three issues. 

First you may wonder why it is we are sitting here in 2005 trying to puzzle through this question. Why was this not resolved a 

long time ago? The reasons essentially is that there has been a 

longstanding tradition in the United States for some 180 years, 

that even though there was no law prohibiting it, prosecutors acting as professionals did not subpoena reporters to obtain information because of their respect for the values of a free press. 

As often happens, when an event occurs that calls attention to 

an issue, such as the Branzburg decision in 1972, suddenly people 

say, ‘‘Hmm, that is a good idea. Maybe we should start subpoenaing reporters now that we have learned it is constitutional to 

do so.’’ 

And so the fact is that the necessity for this hearing and the necessity for this legislation is actually a fairly recent phenomenon, 

and as in the situation that currently prevails with a relatively aggressive use of subpoenas of reporters is not the tradition in this 

Nation. What we face today is a serious anomaly in our history and 

one that Congress now should address. 

Second, the Government argues that there’s no need for such a 

privilege, and essentially says that there is no compelling evidence 

that in the absence of a privilege potential sources decline to come 

forward. Frankly, this is a non sequitur. First of all, imagine trying 

to prove that people are unwilling to come forward because they 

are afraid to do so. It is an extremely difficult task simply as a 

matter of evidence. Moreover, the most obvious way of proving that 

today would be by comparing the experience in those States with 

a privilege with the experience in those States without a privilege. 

But of course, only Wyoming today does not have a privilege. So 

it would be impossible to undertake such an investigation. So the 

challenge from the Department of Justice to prove the need essentially is an empty set. 

Moreover, Congress is free to use common sense. We know that 

individuals, when they have reason to fear consequences of speaking, are chilled in their speech. That is why we have an attorneyclient privilege, it is why we have a doctor-patient privilege, it is 

why we have a psychotherapist-patient privilege, it is why we have 

a marital privilege, it is why we have an executive privilege, it is 

22 

why we have a speech and debate clause privilege even for members of Congress. The fact is, it would blink reality to imagine that 

there are not frequent situations when potential sources, having information that would be of significant public value, ask themselves, 

do I want to run the risk of possibly being prosecuted or possibly 

being embarrassed or losing my job or being subjected to some 

other form of retaliation? Of course individuals hesitate in these 

circumstances. This does not need to be proved in this context any 

more than it needed to be proved in the attorney-client privilege or 

in any of the other privileges that we commonly recognize. 

Finally, the Government says, what is the cost of the privilege? 

The cost of the privilege is severe. We lose evidence in a prosecution that may cost the ability of the Government to convict a person who perhaps is guilty. 

Now, the problem with this is, first of all, it is the same argument that could be made for every privilege, but more importantly, 

it completely misconceives the striking of the balance in this situation. If we focus only on the moment at which the reporter invokes 

the privilege, we in fact then have a totally distorted view of the 

cost of benefits. 

So take a situation in which a congressional staffer suspects that 

a member of Congress has taken a bribe, and that congressional 

staffer reveals this confidentially to a reporter. The reporter is subpoenaed, and the court asks the journalist to reveal the name of 

the staffer so they can investigate further to find out the evidence. 

If a privilege is recognized, the journalist will not reveal the name 

of the staffer and it will be more difficult to investigate, and it is 

that variation that the Government would ask you to focus on. But 

that is the wrong moment. 

What you have to do is go back and ask what happens at the moment that the source, the congressional staffer, thinks about speaking to the reporter in the first place? If the staffer would not be 

willing to speak in the absence of a privilege, as well might be the 

case, then the reporter will never have the story, will never publish 

the story. No one will ever know that there is even a possibility 

that that Member of Congress took a bribe. There will be no investigation, and it is hard to see how law enforcement or the Nation 

is better off in a world in which no such information is revealed 

at all, than one in which it is revealed and made available to the 

public, and at least opens the opportunity for an investigation that 

otherwise would not exist. Thank you, Mr. Chairman. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Professor Stone. 

Turning to the two cases, the one against Ms. Judith Miller and 

the one against Mr. Matthew Cooper, what were the essential differences? I want to direct this question to you, Mr. Abrams, and 

also to you, Mr. Pearlstine. What were the essential differences in 

your views of the law which led to the position to be taken as to 

Ms. Miller, who is in jail, contrasted with the position taken by 

Time, Inc., which led to Mr. Cooper’s not being in jail. 

Mr. Abrams, would you start, please? 

Mr. ABRAMS. I do not think that there was any substantive difference as to what the law was. The difference I think is that Mr. 

23 

Cooper obtained what he understood and understands to be a clear, 

unambiguous, uncoerced, waiver from his source, which permitted 

him to testify, and Ms. Miller is not in that situation, and therefore, has not testified. 

As regards the law itself, I will pass to my colleagues on the 

right, but I do not really think there was any substantive disagreement. 

Chairman SPECTER. You are saying it is just a factual matter as 

to the waiver which Mr. Cooper got, right? 

Mr. ABRAMS. Yes. 

Chairman SPECTER. Did you disagree with what Mr. Pearlstine 

said or at least was reported to have said about his view that Time, 

Inc. had an obligation to obey the law? 

Mr. ABRAMS. My own personal view—and I repeat, my personal 

view; I can lose a lot of clients very quickly today, Senator. 

[Laughter.] 

Chairman SPECTER. That happens to us all the time. 

[Laughter.] 

Mr. ABRAMS. My personal view is that I would have wished Time 

would have acted as the New York Times did in 1978 when there 

was an order requiring a New York Times reporter to reveal his 

confidential sources, and an order requiring the New York Times 

to take steps to compel him to do that. The Times and the reporter 

both said that they would not do that, they would pay whatever the 

penalty that was imposed upon them. And they did so, and it was 

very substantial. 

Now, I understand that there are serious— 

Chairman SPECTER. It was money. 

Mr. ABRAMS. It was money. 

Chairman SPECTER. Different from going to jail. 

Mr. ABRAMS. Yes, it is different from going to jail, although 

sometimes it is easier to go to jail in some circumstances if the 

money gets to be at a point where shareholders may have something to say about it. 

Chairman SPECTER. I will not pursue that line because I only 

have 5 minutes. 

But, Mr. Pearlstine, same question, what was the difference in 

your view, if any, between the New York Times and Ms. Miller and 

Time, Inc. and Mr. Cooper? 

Mr. PEARLSTINE. First of all, I share Mr. Abrams’ view as with 

regard to what the law is and what the implications of the Supreme Court’s refusal to hear our appeal are. 

I should point out that Time, Inc. was a defendant in this case, 

whereas the New York Times was not. I do respect the individual 

act of conscience on the part of Judith Miller to decide to go to jail, 

and I respected Matt Cooper’s willingness to refuse to testify as an 

individual if that were his decision. 

My own feeling is that in this rather exceptional circumstance 

where we had a Supreme Court refusing to hear our appeal, where 

we had issues of national security, and where we had a grand jury 

in place, there were specific circumstances that suggested to me 

that it was appropriate for us an institution in possession of a file 

to turn it over to the Special Counsel. 

24 

Chairman SPECTER. Had Mr. Cooper not gotten that waiver, 

what would your decision have been? 

Mr. PEARLSTINE. I made the decision prior to Mr. Cooper getting 

a waiver to turn over our file to the Special Counsel, because I 

thought on journalistic grounds that we had spent two years pursuing this case, seeking every possible judicial remedy, but that 

with the Supreme Court’s failure to act, and with the absence of 

a Federal shield law, I thought this was one of these cases and one 

of these unusual ones where the combination of national security 

being an issue and a grand jury being enforced where it was the 

right thing to do. 

Chairman SPECTER. Professor Stone, I have 8 seconds, just time 

enough to ask a question before my red light goes on, which I will 

reserve. I read—and it is hard to follow—you were critical of the 

New York Times position. Is that true, and if so, why? 

Mr. STONE. I believe that reporters, like the rest of us, should follow the law when the law is clear and when they have exhausted 

their legal remedies as was true in this case. There are circumstances where I believe civil disobedience is appropriate, but I 

think they should be reserved to those situations in which there is 

a reasonable case to be made that the legal system itself or the system of Government is oppressive or unjust, or immoral. In this situation, I think there is a profound disagreement about public policy, but I believe that if that is all there is, and it is what I believe 

there is, then I think it is their responsibility to comply with the 

law. So I agree with Mr. Pearlstine’s decision. I think that was the 

correct thing to do, and then to seek to change the law so as to create a privilege so that situations like this do not arise in the future. 

Mr. SAFIRE. Mr. Chairman, can I jump in on this waiver business? 

Chairman SPECTER. Yes, of course. Mr. Safire. 

Mr. SAFIRE. I do not have to pussy foot about this because it is 

a matter of principle. I think waivers of confidentiality are a sham, 

a snare and a delusion. When you put somebody’s head to a gun 

or a gun to a head and say, ‘‘Would you sign this waiver of confidentiality so we can force the reporter to talk about what you 

said,’’ you are coercing him in the most forceful way. You are saying, ‘‘You will lose your job or you will become a target of grand 

jury investigation unless you sign this waiver.’’ 

I think from the reporters’ point of view, from the journalists’ 

point of view, when presented with a waiver, even with my name 

on it, saying, ‘‘Okay, Safire, you can tell them what I said,’’ my reaction should be, ‘‘You tell them what you said. Get up and say, 

I met with this man and I told him this.’’ I then can say, ‘‘Yes, that 

is true,’’ or ‘‘No, he has that one wrong.’’ But the notion of putting 

the onus on the reporter, that he must reveal what happened because a source has been coerced, forced into asking him to talk, I 

think is a perversion of justice. 

Chairman SPECTER. Thank you, Mr. Safire. 

Senator Leahy. 

Senator LEAHY. Thank you. I am sorry I had to step out briefly 

because of the Supreme Court matter, but I did read the testimony 

of all of you. Mr. Safire, I had my ‘‘gotcha’’ staff go through to see 

if we could find a grammatical error in yours. 

25 

[Laughter.] 

Senator LEAHY. We did not. I did find interesting your discussion 

with Potter Stewart about the chilling effect, and I am disappointed that Mr. Comey did not show up because I really did 

want to ask questions about why the administration is so opposed 

to the shield law. You pointed out, I guess around three or so 

States have it by statute, another 19 or so by case law. But you, 

Mr. Safire, have written about the fundamental right of Americans 

who have free press to penetrate and criticize the workings of our 

Government. I agree. One of the reasons I pushed the FOIA as far 

as I have, I think it does make Government more transparent and 

it helps hold it accountable. But the question is, does this fundamental right bestow upon the press a right to refuse to testify before a grand jury in a criminal investigation? 

Mr. SAFIRE. I believe it does. 

Senator LEAHY. Is there ever a circumstance under which a reporter should divulge his or her confidential sources to either a 

grand jury or even in a civil case? 

Mr. SAFIRE. Yes. We are not asking for an absolute privilege. Indeed, in this legislation before you, there is an exception on national security, that if there is an imminent and actual danger that 

the reporter can indeed be required to testify. 

Senator LEAHY. We have seen since 9/11 the enormous flexibility 

shown in what is considered imminent danger. We see it in the 

FISA courts. We see it in others. Does this give a great deal of 

power to the Government to say what is imminent danger? 

Mr. SAFIRE. The Government does not define the word. I am in 

the semantics business. I know what imminent means. Imminent 

means about to occur. It does not mean potential. There is an element of urgency to it. Now, it is used and misused by a lot of people, but I think every lexicographer will agree that imminent 

means about to occur and that if a national security crisis is about 

to occur, then let us face it, as citizens reporters have to help. 

But here is the thing. Journalism and reporters are not the fingers at the end of the long arm of the law. We are not agents of 

the Government. Consider the weapons that the Government has 

to get evidence. It can put people under oath and threaten to jail 

them if they do not tell the truth. It can subpoena e-mails. It can 

wiretap. It can offer immunity that overcomes the Fifth Amendment. These are huge, powerful methods of gaining evidence. 

What do we have? We have the power of trust. We have the ability to say to a source, ‘‘You can trust us. We will not reveal who 

you are. You will not be involved. What is the truth?’’ Now, that 

is our power, that is our weapon, and it is being seized and taken 

away from us. 

Senator LEAHY. Let me pursue this a little bit further, some of 

the things I would have with Mr. Comey. Let me take you and Mr. 

Levine perhaps to answer this. And I am sympathetic, somewhat 

sympathetic to the Branzburg decision to accept the argument that 

public interest and possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes. 

But when a crime is committed, why would that not trump confidentiality? I mean even defense attorneys are subject to a crime 

26 

fraud exception. Should journalists have this absolute privilege 

when no one else does? 

Mr. SAFIRE. We are not asking for an absolute privilege, Senator, 

quite the contrary. 

Senator LEAHY. But when a crime has already been committed— 

I am not talking about the future—crimes have already been committed. 

Mr. SAFIRE. You go into court and a defendant is threatened with 

the loss of his freedom, and you have a conflict between the First 

Amendment and the Sixth Amendment. What do judges do? They 

strike a balance. They say, ‘‘How important is this testimony, and 

can we get it from someplace else?’’ They recognize the importance 

of the First Amendment and the protection of the right of the free 

press to help the flow of news. At the same time you are not going 

to put somebody in jail because there is no other way of getting the 

information except from the reporter. So this is something that 

judges do every day. As you know, prosecutors have to use their 

discretion on whether or not the case is so important and this is 

the only way they can get the information, and when the accused 

is faced with serious punishment, most of the time—and I guess 

my legal counsels here can say this better—most of the time judges 

come down on the side of the Sixth Amendment, and that does not 

bother us. 

The fact is that we are sensible people. We do not push this 

thing to absolutes. 

Mr. ABRAMS. Could I add to that, Senator, that in all the States 

that we have outlined for you in our testimony that have shield 

laws, they have addressed the very issue that you have asked Mr. 

Safire about. I mean in the District of Columbia, in New York and 

Indiana, and 16 States around the country, there are what could 

be called absolute shield laws. There are, in any event, shield laws 

which say, in response to your hypothetical, that, yes, in a criminal 

case a journalist cannot be required to reveal his or her source. 

Some States do it on a balancing basis. A number of States, with 

no difficulty and with no harm so far as we can tell to the rights 

of defendants or prosecutors, have gone farther and said it is so important to protect the confidentiality, that will have what is a nearly absolute rule in the same way we have for lawyers. I mean there 

is no balance struck about what Judith Miller told me about the 

right of a court to ask me to answer the question, ‘‘Who is your 

source?’’ I know who her sources are. No one would think of asking 

me because I am a lawyer and because we all live in a system in 

which we understand and accept the idea that you cannot have a 

functioning legal system unless lawyers and clients are free to talk 

to each other, and it is our position that something like that is applicable or should be held to be applicable in this area of journalists as well. 

Mr. SAFIRE. And the key word is ‘‘balance.’’ We balance the right 

of a free press against the right to a fair trial. Another field, we 

balance civil liberties against the need to crack down on terrorism. 

This balancing business is what the Constitution is all about. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

27 

As is the custom of the Committee, we will now proceed on what 

we call the ‘‘early bird rule,’’ and that makes Senator Cornyn next, 

even if other Senators were present. And on the Democratic side, 

we have Senator Feinstein, Senator Durbin, Senator Biden, Senator Feingold and Senator Kennedy, in order of arrival. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

In Thomas Friedman’s book, The World is Flat, he writes about 

this fascinating story of Bob Schieffer being encountered outside of 

a Sunday morning talk show by a young reporter, but not one that 

we would perhaps identify in traditional terms. This young man 

took out his cell phone and asked Mr. Schieffer to stand there 

while he took his picture, and then went back and wrote on a 

website that he had created for himself, and the story of the day— 

I cannot recall the context of the story, but the fact is that there 

are new and different types of people reporting information and 

making it available literally to anyone in the world. 

I would just like to ask each of our distinguished panelists—we 

have of course two great institutions, journalistic institutions the 

New York Times and Time Magazine represented, and other distinguished witnesses. Would you extent this privilege to a blogger or 

to the type of person that Mr. Friedman writes about that is basically an individual who has taken the initiative to create a story 

and publish it to the world? Mr. Safire, let me start with you if I 

might. 

Mr. SAFIRE. There are maybe 9 or 10 million bloggers out there, 

and growing all the time. I do not think journalism should profess 

to be a profession. I think the lonely pamphleteer has the same 

rights as the New York Times. When you start saying who is a 

journalist, I think you as well as we can agree on certain principles 

to draw a line somewhere. I think one important principle is regularity. Are you in this business once a year or once a week or daily? 

Another thing is, are you in the business of gathering news? 

It is a tough line to draw, but that comes I think from practice 

and case law. I would like to see the ‘‘who is a journalist’’ issue developed by good faith legislating and deciding it in courts. It has 

been done before. 

Floyd, has it ever been done before? 

Mr. ABRAMS. Well, it has been done by all the States that have 

shield laws of course, because they all have definitions, so all 31 

of those States have provided a definition. Some of them are very 

specific. You have to work for a newspaper, magazine, broadcaster 

a certain amount of time. Some of them are a little more openended and address your question a little more directly by adopting 

a sort of functional test, do people do the sort of things that we 

would call journalists as doing? It is difficult but it is not an impossible task. I mean it reminds me of the task the courts have had 

in religion cases in which the question is, who is a minister? Who 

is a priest? And the courts, quite rightly, have shied away from trying to define what is a religion for fear of seeming to license religions, but they have come up with sort of common sense definitions 

of people who do the sort of things that historically priests and 

ministers and rabbis and others have done. 

Senator CORNYN. Professor Stone? 

28 

Mr. STONE. I think that it is important to recognize that the purpose of the privilege is to encourage sources to be willing to make 

confidential disclosures. And therefore, the definition of the journalist really need not be focused on a sort of credentialism as much 

as what is the reasonable belief of the source in any given situation? If a source reasonably believed that the person to whom he 

is making a confidential disclosure is an individual who disseminates information to the public, and the source’s purpose is to enable that individual to disseminate information, then that is probably the functional test that one needs in a situation like this. 

Even in the attorney-client privilege, it focuses not on who is an 

attorney, but whether the person who thinks he is a client reasonably believes the person to whom he is speaking is an attorney. 

Senator CORNYN. Unfortunately, my time is just about to run 

out, but let me just say, to me this is something we need to explore 

a little further because it strikes me that anonymity also has the 

risk of creating non-accountability, indeed, irresponsibility when it 

comes to accurately reporting information, and certainly getting accurate information seems like a value that ought to be taken into 

account here, because inaccurate information can cause a great 

deal of harm, and journalists, professional journalists are bound by 

a code of conduct and a code of ethics, but certainly the technology 

has made it possible for many people to publish information in anonymity that could cause a great deal of harm as well. So it seems 

like a consideration we certainly need to take into account. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. I would 

just like to say that I very much regret the Department of Justice 

is not testifying here today. I have read the written remarks of 

Deputy Attorney General Comey, and it is a rather serious indictment of the legislation in front of us on many points. I think it has 

to be taken seriously, and I think we have to explore the points. 

So, Mr. Chairman, my request would be that we have another 

hearing and that we do have the Justice Department testify. They 

have made some very strong allegations in this written testimony. 

Chairman SPECTER. Senator Feinstein, I am disappointed that 

Mr. Comey is not here as well. I learned about it just this morning, 

and we will consider another hearing, This is a complicated matter, 

and a lot of ramifications, and we have a jammed agenda, but we 

will certainly consider another hearing to have him come in. 

Senator FEINSTEIN. Good. Thank you very much. 

Now a question, if I might, of the panel, and thank you very 

much for your testimony. In my home State, California, we have 

a constitutional provision as well as a statute that protects reporters. However, it is very carefully drafted, and it balances the needs 

of reporters along with the needs of law enforcement, defendants 

and others in a given case. 

California has a qualified immunity against contempt sanctions, 

rather than an absolute privilege. In addition, through case law, 

California has developed balancing tests depending upon the specifics of the case, including whether the information is being requested for a criminal or a civil case. 

29 

The legislation before us is extraordinarily broad. My initial 

reading of it is rather startled by it. I think the national security 

provisions are particularly broad. I speak as a member of the intelligence community, where we are so cautioned against even indicating something that has been in a newspaper if we have heard 

it in the Committee. And it seems to me that under the ABC of 

the national security provisions in this, they are virtually impossible. They would not even make the outing of Valerie Plame effective as far as this is concerned. 

My question to the panel is whether you are rock solid in saying 

that this legislation is the only legislation, or whether the panel is 

willing to look at what other States have done that have a background of case law, and that have affected I think a more balanced 

piece of legislation. 

Could we start with you, Professor Stone? 

Mr. STONE. Sure. First of all, I had no hand of course in drafting 

the bill, so I have no responsibility for that, but I think the key 

problem with balancing, open-ended balancing, is again we have to 

keep the focus on the fact that the purpose of a privilege is to encourage a source who is reluctant to come forward with information, to do so. The more uncertainty that exists in whether or not 

a privilege will in fact be honored, the greater the reluctance on the 

part of the source to come forward with the information, and in 

some sense the balancing can be self-defeating because if it becomes so uncertain to the source whether a prosecutor will be able 

to make a certain showing four months down the road or whether 

certain circumstances will come to pass, that they just have no idea 

whether they are going to be protected or not, then many sources, 

perhaps most sources, will simply say the better part of wisdom is 

to remain silent. 

So I think the danger of— 

Senator FEINSTEIN. Could you talk national security, please, because that is my big concern. 

Mr. STONE. Okay. If the issue is only national security, then I 

think the problem is much less, because national security leaks are 

of course only a very tiny percentage of all of the circumstances in 

which we are dealing with a potential journalist-source privilege. 

In the national security context, if at least it is clear to the 

source that they are dealing with information relevant to the national security, then I think the risk of chilling effect, which I was 

talking about a moment ago, is less severe. What really matters is 

that the rules need to be clear. If the Congress believes, for example, that the leak of any classified information period is both criminal and may not be subject to a privilege, then we should say so, 

and then at least sources and reporters will know what the rules 

are, so clarity is the key. 

Senator FEINSTEIN. Let me just debate you about this for a 

minute. 

Mr. STONE. Sure. 

Senator FEINSTEIN. Do you really have to reveal Mrs. Wilson’s 

name to have the law apply? I mean I am interested in the 

timeline of the calls that went back and forth, and then, bingo, the 

Novak article identifying her, violating a law clearly. 

30 

Mr. STONE. I would say that under my understanding of the relevant law in that situation, there is no necessity to actually identify the name to violate that statute. It is sufficient to provide 

enough information so that the individual, the reporter with whom 

I am speaking or the other individual with whom I am speaking 

could discern the name. So, no, I do not think there is any defense 

to the statute that one did not use the name, Mrs. Wilson. 

Senator FEINSTEIN. Anybody else want to comment? 

Mr. LEVINE. Let me just say a word, Senator Feinstein, about the 

California statute, because I think it is an illustrative example. In 

fact, the California statute on its face is in many ways—and of 

course it does not deal with national security for obvious reasons, 

but in many ways it is broader or at least as broad as this statute. 

Where the California has been narrowed in application, as you 

pointed out, has been by case law, and that would happen with this 

Federal shield law as well. California has recognized, for instance, 

that the Sixth Amendment right of a defendant to a fair trial is a 

constitutional right, that in appropriate cases needs to be balanced 

against the statutory rights granted by the shield law. And I think 

we all fully expect that this statute will be subject to judicial interpretation in the same way. 

On your other question, I too did not have any role in drafting 

this statute, but I think I have gotten very clear signals from everyone who has been involved, and all of us here, are interested in 

working with the Committee, and that this is not written in stone. 

Senator FEINSTEIN. Appreciate that. I would just ask if you have 

some better language with respect to Section 2A, B, C, as it relates 

to national security, because it seems to me that this is so broad 

that I mean to prevent—Mr. Safire, I think well-explained what 

imminent is—but this would mean basically there is no ability to 

compel anything. I could not conceive of a case where under this 

statute information could be received. 

Does anyone else have a comment? 

Mr. ABRAMS. I would just add, Senator, that I too had nothing 

to do with the language, but I thought on first reading at least, 

that the necessary to prevent imminent and actual harm, national 

security, was a good try, but this is not written in stone, and I am 

confident that the drafts people or others involved in this would be 

glad to sit with you and your colleagues and try to deal with any 

broader problems that you perceive. 

Senator FEINSTEIN. I appreciate that. 

Chairman SPECTER. Senator Feinstein, you are 3 minutes over. 

How much more time would you like on this round? 

Senator FEINSTEIN. No, no, no, please. That is fine. Thank you 

very much. 

Chairman SPECTER. Senator Durbin. 

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

It is clear that freedom of the press has been enshrined in our 

Constitution for good reason. It is an opportunity to put a check on 

Government, to expose corruption, deception, abuse of power clearly in the public interest of the United States. Because of Mr. 

Novak’s publication, we are now being drawn into a more specific 

debate about how far this confidentiality should extend. 

31 

Under common law and State laws we have privilege that is extended in the attorney-client situation, but it is privilege that is circumscribed. In most States, I think perhaps in all States, I could 

not, as the attorney of a person, conceal a crime if that is the information disclosed to me by a client. And so I could not assert the 

privilege if it would in any way protect that person from criminal 

penalty for what they have done. 

The law that we are considering today in its most recent revision, Mr. Safire is right is not absolute. But the law certainly is 

more specific and narrower than what I have just described. The 

only crimes that would clearly be covered by this relate to national 

security. Those are the only exceptions. And so it raises at least 

two issues, three issues in my mind, and one I will close with a 

hypothetical and leave it open to the panel. 

First, what if the disclosure of the information is in and of itself 

a crime, as in the case of Valerie Plame? The disclosure of her identity was a crime. Then I would think you would still have to go 

through this bill to prove that disclosing the source of her name is 

in some way necessary to prevent imminent actual harm to national security and more. 

Secondly, if the whole motive of confidentiality for the press is 

the public interest, what are we to do with situations like Valerie 

Plame, where clearly the motive in disclosing her name had little 

to do with public interest; it was a selfish, mendacious effort by 

those in the White House to discredit her husband and the article 

that he had written for the New York Times? Little public interest 

was being served here, and to argue that now we have to rise to 

the occasion of protecting that kind of disclosure, which is not in 

the public interest, I think raises a second major issue. 

And the third issue is this: Assume I am a reporter who receives 

a telephone call from someone who identifies himself as the kidnaper of a child. That child is still alive. And I, as kidnaper, tell 

the story to the press about what I have done with that child and 

where that child is. As I understand it, from this law and the way 

it is written, I could not be compelled, if I asserted my right as a 

reporter to confidentiality, to even disclose the identity of a kidnaper or sexual predator because it does not fall into the exception 

related to national security. It has nothing to do with terrorism. 

This is a sexual predator who has kidnaped a child. Now a great 

story has been written. 

As I understand it, that reporter could not be compelled to disclose the identity of that kidnaper under this law. I would like to 

leave it open to the panel to respond. 

Mr. LEVINE. Perhaps I could take the kidnapping example, Senator. First a couple of points. As you have heard here today, many 

States have written shield laws and 49 have some form of privilege. 

You would think that episodes involving kidnaping or other threats 

like that would arise at the State level more frequently than they 

would at the Federal level. 

As far as we can tell in going back and researching it, we are 

aware of no situation in American history where a news organization has been in possession of that kind of information, and has asserted any kind of privilege. 

32 

Senator DURBIN. Assuming it is a Federal crime of kidnaping 

and the circumstances I have just described, could the reporter be 

compelled to disclose the source under the Dodd-Lugar bill? 

Mr. LEVINE. Under this statute, no, and I think you raise a fair 

point, that I do not think anybody on the—any reporter or any 

journalistic organization would have any problem with addressing 

that situation in the statute. What I am suggesting to you though 

is our experience demonstrates that journalists and news organizations live and work in communities. They are citizens, and there 

is no evidence ever in American history that I am aware of that 

any news organization in that kind of situation has not voluntarily 

come forward without the need of a subpoena or asserting any kind 

of privilege when that kind of situation has occurred. 

Senator DURBIN. Would you address the second part of the question? If we are not dealing with a disclosure to reporter in the public interest, but rather, the disclosure of secret grand jury testimony, clearly designed to put the witness and the grand jury or the 

target of the investigation in a terrible position, bargaining for 

their freedom. Is that in and of itself—should that be treated the 

same way as whistleblower disclosures in the public interest? 

Mr. LEVINE. I think you have to be very careful about drawing 

a line based on the level of public interest or the public good that 

will be served by a disclosure for a number of reasons. First, from 

the journalist perspective—and the journalists on the panel can 

speak to this better than I can—it is impossible to know in advance. It is impossible to know when you make the promise before 

you receive the information whether what you are going to be getting is the Pentagon papers or whether it is going to be something 

else. So you put, as Professor Stone was saying, you put both the 

person who is seeking the promise of confidentiality, and more importantly, the reporter, in an impossible situation if you impose 

that kind of test, and in the end of the day provide really no protection at all. 

The second thing is that the concept is incredibly elastic. One 

person’s whistleblower is another person’s slander mongerer. I 

mean it depends on where you sit, and as one of the panelists said 

before, I would hope that in considering this legislation—and I am 

confident that you will—that you will look beyond the political exigencies of the day to the broader picture of the general public good 

that is served by allowing reporters to honor these promises. 

Senator DURBIN. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Durbin. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Recent events have obviously made this proposed Federal shield 

law a hot topic. The sight of reporters in handcuffs is not a pleasant thing for any of us to see, and as our witnesses have noted, 

these scenes are becoming more and more common. 33 years after 

the Branzburg decision it is time for Congress to act. I have cosponsored the bill introduced by Senator Dodd, Senate Bill 369, 

and I will also shortly co-sponsor Senator Lugar’s new bill. 

The important thing is to end the uncertainty and the incongruities caused by having protection for anonymous sources in 49 

States and the District of Columbia, but not in Federal cases. 

33 

I do not take lightly the issues raised by the Deputy Attorney 

General in his written testimony. We must certainly consider the 

effect that a shield law might have on investigations and prosecutions of terrorism and other serious crimes, but anonymous sources 

have been too important to exposing Government and corporate 

wrongdoing to let the current situation continue. It is not, in my 

view, a credible argument to say that because high profile anonymous sources have continued to work with reporters even without 

a shield law in the decades since Branzburg, that that will continue indefinitely. 

The chilling effect that our witnesses have mentioned is a gradual lowering of the temperature, not an instant ice age. The more 

high profile contempt prosecutions of journalists we have, the 

greater the chances that potential sources will be deterred from 

coming forward. 

Another argument made be the Deputy Attorney General with 

which I disagree is that congressional action or legislation in this 

area would overrule Branzburg. I think that is incorrect. 

Branzburg stands for the proposition that the protection of the 

identity of anonymous sources is not required under the First 

Amendment. But many judges ruling in these cases have invited 

Congress to legislate. This is an area where Congress has the 

power and the responsibility to set out the parameters under which 

testimony of this kind can be compelled. A free society cannot long 

survive without a robust free press. 

And so I am very grateful to the witnesses for the tremendous 

expertise that they bring to this subject, and I look forward to 

working with all of you to help design a workable and effective 

Federal shield law. 

The press will certainly benefit from the law, but more importantly, the Nation will benefit. 

In my remaining time I would like to ask the panel, the Deputy 

Attorney General wrote in his testimony that the evidentiary showing required by S. 340 to compel a person covered by the Act to testify or produce a document would jeopardize traditional notions of 

grand jury secrecy. And I realize that this may not be your core 

area of expertise, but can any of you talk about that concern? 

Mr. ABRAMS. May I say, Senator, that having been in the position representing Judith Miller and having represented Matt Cooper in earlier stages in his case, that the proceeding went along 

just fine without showing us anything. We never got to see anything that had been submitted to the grand jury, even though the 

Special Counsel made submissions of it to the court. And while 

that was not to our liking and we urge that it was a due process 

violation, the Court of Appeals for the District of Columbia held 

that it was indeed constitutional. 

So if there are grand jury materials which need be shown to a 

court in order to make a ruling, at least at this point, it appears 

to be constitutional to do that even without showing it to opposing 

counsel. 

Senator FEINGOLD. Now, I would have thought that a better way 

to do that is to do it under a protective order in which opposing 

counsel, at least counsel would have the right to see the materials, 

34 

and to proceed on that basis in secret, in camera, but one way or 

the other, it would not destroy the principle of grand jury secrecy. 

Mr. ABRAMS. May I chime in? 

Senator FEINGOLD. Mr. Safire. 

Mr. ABRAMS. Not only is the testimony that you referred to from 

the Department of Justice not supported by an individual here on 

the panel, but the testimony itself is about 3 days out of whack. 

You will notice how it stresses national security, and evidently, to 

read the amended act, or the act as it now is presented to us, it 

has been changed, it has been brought up to date. The argument 

about national security has been incorporated into it, and that powerful line about imminent and actual danger is in. So here you 

have the Department of Justice with a brief that does not take into 

consideration the changes that Senator Lugar and others have 

made in it. 

Senator FEINGOLD. Anybody else want to comment? 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. This has been 

enormously informative and helpful, and as one that is a strong believer in the First Amendment, and recognizes that it is the 

amendment that gives life to our democracy and protects the freedom of all Americans including the right to criticize. I remember 

being in law school and listening to bill Douglas, Justice Douglas 

answer a question from a student, and said, ‘‘What is America’s 

greatest export? ’’ And he mentioned the First Amendment. 

I think we listened to the discussions and the exchanges of my 

colleagues about the exception, and I think Mr. Safire mentioned 

the imminent national danger, the exception. 

I would like to ask Mr. Pearlstine, if this legislation had been in 

law, would you have acted the same way as you did? 

Mr. PEARLSTINE. In turning over? 

Senator KENNEDY. Yes. 

Mr. PEARLSTINE. I think that if this law, as I now read it, were 

enforced, we would not have been required to turn over the file. 

But I say that not knowing exactly what the special counsel alleged 

in terms of national security because in the court of appeals decision we have eight blank pages where the Justices, if you will, had 

a chance to consider what the Special Counsel thought the security 

issues were, and we have never seen those. 

Senator KENNEDY. Well, doesn’t this raise the question whether 

these words were defined sufficiently to do what all of you have 

asked to do? Mr. Levine? 

Mr. LEVINE. I think on the question that you put to Mr. 

Pearlstine, I think we can say two things about the statute with 

confidence that would have been different than actually happened 

in the case involving Mr. Cooper and Ms. Miller. One is they would 

know that they had a presumptive privilege, which the courts in 

their case said they did not. Second, we would know what the test 

is, and it is the test that you have spoken about, Senator. What 

we do not know is how that test would have been applied in the 

circumstances of either the case of Ms. Miller or Mr. Cooper because we do not know what the evidence was. 

35 

So I think that the role of the court would be clearer; the test 

that would be required to apply would be clearer; but none of us 

can predict except perhaps for Mr. Fitzgerald, who is not here and 

is not talking, what the outcome of that exercise would be. 

Senator KENNEDY. Just finally, those words ‘‘imminent national 

danger,’’ is there anything else that you want to suggest to the 

Committee that is better, stronger, more effective? Or should we 

live with those words as far as the panel is concerned? 

Mr. STONE. I think it would be possible to expand, as was suggested earlier by Senator Feinstein, from national security to other 

grave crimes that could be committed, such as the kidnapping example. And I also think that, as Senator Durbin suggested, some 

attention might well be placed on the issue of whether the disclosure itself is unlawful. Since the purpose of the privilege is to encourage sources to disclose information, if the disclosure is itself 

unlawful, then the law has already determined that we do not wish 

to encourage those disclosures. And I think that would be a relevant issue to consider in the statute for a case like the one involving the disclosure of Valerie Plame’s identity. If that disclosure is 

unlawful to the reporter, then it seems to me that should be a relevant fact in deciding whether a privilege should apply. 

Mr. ABRAMS. May I say, Senator Kennedy, I think that it is troubling to import the notion of the disclosure of the information to 

the journalist herself or himself. The disclosure of the Pentagon Papers may well have been illegal by the Times’ source, but to have 

a statute which, therefore, strips the Times or in those days 

stripped the Times of the right not to reveal who the source was 

would effectively have meant they couldn’t have accepted the information, or else if they had and the Government had pursued this, 

would have been in the same sort of fix that we have seen in recent 

days. 

So I would be loath to sign on to the notion that simply because 

the disclosure is illegal—if it is a crime, prosecute that crime. But 

I would not make that an element in deciding whether journalists 

have a privilege or not. 

Mr. LEVINE. I Would also be very careful about expanding it beyond the areas of national security and perhaps matters of life and 

death and public safety, like Senator Durbin was talking about. We 

have a whole raft of statutes on the books—I will mention just one, 

the Federal Privacy Act—that purport to forbid Government officials from disclosing information about identifiable persons. That 

statute on its face is incredibly broad. If you enforce that, as has 

been suggested by some of the civil litigants who are bringing Privacy Act claims, it would render illegal the communications that go 

on every day between reporters and sources in Washington, D.C., 

and elsewhere. And making that the linchpin on whether there is 

a privilege or not would effectively gut it, I think. 

Senator KENNEDY. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman. 

Before I question the witnesses, I would just like to second Senator Feinstein’s request that Mr. Comey come before us at some fuVerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC
36 

ture time. I think we really need to have him here to answer questions. I had a bunch of questions for him. So if you could make that 

request in strong terms, that would be great. 

Chairman SPECTER. Senator Schumer, I noted when Senator 

Feinstein made her point, I saw your body language. I have already 

marked you down as a seconder. 

[Laughter.] 

Senator SCHUMER. Thank you. 

Mr. LEVINE. Make me a third-er. 

Senator SCHUMER. Vermont body language is a little less easy to 

perceive than Brooklyn body language. 

In any case, let me just speak for a minute and then ask questions. My sympathies in general are with protecting sources and 

having disclosure. I think our society depends on it and needs it, 

more now than ever before. So I am sympathetic to the journalistic 

side of this. 

But you do run into a few roadblocks, and I would like to explore 

those, and it is why I have not cosponsored the bill. I still might 

vote for it, but I am not yet ready to cosponsor. 

Ninety-nine percent of all leaks, I think, are unassailable because they do some good. They are not violations per se of the law, 

which I think Professor Stone mentioned. When somebody in the 

FDA is upset that they have done a rotten job on a test and tells 

a reporter, that is good thing for society. And we need to do that, 

and we need to encourage it. And I think, my guess is, there would 

be broad support certainly on this side of the aisle, and I even 

think on the other, for laws that protected that. That is probably 

99 percent of all undisclosed sources or leaks. 

One percent do involve violations of law. I am not sure I agree 

with Mr. Abrams that if the leak per se is a violation of law that 

it is in the same category as everything else. This statute is very 

narrowly drawn. There is virtually no justification for leaking the 

name of an undercover agent. 

Let’s get a little broader—grand juries. One of my problems here 

is I have seen grand jury leaks, illegal because grand jury by law 

is secret, that have actually made it hard for somebody to prove 

their innocence. So I have a rough time figuring out why do we justify grand jury leaks—or not justify, but not prosecute them. I have 

talked to prosecutors about leaks. They say—so it is not easy to— 

Mr. Abrams says prosecute them anyway. Most prosecutors will 

tell you with a shield law it is virtually impossible to prosecute 

leaks. And I have talked to people in the New York City D.A.’s office, in the Federal offices, so I don’t think it is so easy to just pass 

that by. I think you are in an either/or situation. 

And then the tougher one—so those two are fairly narrow, even 

though grand jury leaks is a much broader situation than the 

other. And I have questions about whether a shield law should 

apply to them. I am just going to ramble here a little and then ask 

you all to comment. 

The third one is a tougher one. It is more elastic. It is national 

security, not imminent danger. I think most people would agree 

that the Pentagon Papers should have been made public. But when 

it just says national security, the Government for its own purposes 

can brand it national security when it should not be. So those are 

37 

the three categories I look at this. Ninety-nine percent of leaks, 

they are good. They do not violate the law. The toughest cases, 

which these cases are—this is the toughest case. I do not know 

what the expression is. I am far away from law school. Good case 

makes—bad case makes good—I don’t know. 

[Laughter.] 

Mr. PEARLSTINE. Bad case makes bad law. 

Senator SCHUMER. Bad case makes bad law. This is one of those, 

unfortunately, for Mr. Cooper and certainly Ms. Miller. But those 

are narrow, whether it is grand jury or that, and then you deal 

with the secrecy issue. 

So I have a couple of questions here. And first, one other point. 

I agree with Professor Stone and not with Senator Feinstein. You 

want this to be a bright-line test because my first question which 

hasn’t yet been proved is if there were a bright-line test, what is 

the relationship between the Category A of leaks and the Category 

B of leaks? Why should an FDA employee fear leaking if he knows 

or she knows that it is not a violation of law—and I would make 

it statutory, not departmental regulatory—to leak? So we need to 

establish the link between this hard case and the 99 percent easier 

cases. 

And then the second question is: If you do make that—but it has 

got to be bright line. Just to say balance it, that is going to inhibit 

journalists—that is going to inhibit leakers to go to journalists. But 

if it is a bright-line test, I know it is a grand jury, I am not sure 

I should leak. Or I would have to know the consequences to doing 

it because it is a violation of law, period. 

So, two questions. One, especially for those of you—you know, 

Mr. Safire—and, by the way, I am glad to see we have not a majority but 50 percent New Yorkers here at the table, and I particularly welcome the three of you, as I do welcome everybody else, of 

course. So what is the relationship, to Mr. Safire and Mr. Abrams, 

between Category A and Category B? Why should a law include 

Category B as well as Category A? Because it may get deadlocked, 

you certainly want to protect those 99 percent, which there would 

be much broader consensus. And then the third question, the tough 

question is: How do you deal with Category C, the secrecy issue in 

general? You want a bright-line test, but you do not want to allow 

self-serving by the Government to classify things as secret when 

they should not be. 

I have finished my questions, and I would just have the whole 

panel chime in. 

Mr. STONE. As I said earlier, I do think that the unlawful leak 

is different from the ordinary whistleblower situation and that the 

Government has a more legitimate interest and the source has less 

legitimate interest in claiming protection. There are various ways 

of dealing with that. One is to simply say that unlawful leaks are 

not protected at all. Another is to say unlawful leaks are fully protected and it makes no difference that it is unlawful. And in between, it seems to me there are two types of factors one might 

want to consider. One is the kind of qualified privilege, that is, how 

serious is the Government interest, and is it sufficient to justify invoking the privilege even though it was an unlawful leak? And the 

other is how valuable is the information? 

38 

So the Pentagon Papers is completely different from the leak of 

the name of Valerie Plame in the context in which that leak took 

place. And so one could say that even if Daniel Ellsberg is protected and the New York Times or the Washington Post would not 

be required to disclose his identity because of the public value associated with the leak, even though unlawful, that doesn’t need to extend to a leak of the identity of a CIA agent, which seems to serve 

no significant public value. 

Senator SCHUMER. So what you are saying is maybe limit the— 

Chairman SPECTER. Senator Schumer, you are 3 minutes over 

time. You have got I don’t know how many questions pending. 

[Laughter.] 

Chairman SPECTER. How much more time do you need? 

Senator SCHUMER. I think these are interesting questions. Not 

much. I mean, I was just going to say, I was just going to comment, 

so what Stone is advocating is a balancing test just for a narrow 

ground and a clear bright-line test for most everything else. 

Mr. STONE. Precisely. 

Senator SCHUMER. Okay. 

Chairman SPECTER. Are there further answers from the panel? 

Mr. ABRAMS. Yes, I will just try one example, really. Even in the 

area of grand jury information—you could make a bright-line exception—there are leaks, the BALCO leaks recently, where because 

of the leaks of grand jury information in the BALCO case, we had 

congressional investigations, proposals of legislation, new rules governing drugs in baseball and the like. I don’t know how a balancing 

test would work. I mean, I appreciate one could simply throw it to 

a judge and say try to balance the general social harm of any grand 

jury leak against the possible social good of this particular leak. 

But I am just expressing concern about what we would be asking 

judges to do. It is difficult. I might take the liberty of writing a little bit to the Committee on your question, if I may. 

Senator SCHUMER. I would ask, without objection, you be given 

a week to submit some answers in writing, for all panelists, since 

I asked this whole line of questions. 

Chairman SPECTER. Anybody want to respond further to Senator 

Schumer’s questions or submit answers in writing? 

Mr. LEVINE. Let me just make one point, Senator Specter, if I 

may. 

Chairman SPECTER. Sure. 

Mr. LEVINE. That is, I go back to where you started, Senator 

Schumer, with which I quite agree, that 99 percent of leaks are 

beneficial and there may be 1 percent that are not. The problem 

is where we currently stand, we are in jeopardy of losing the 99 

percent to save the 1, and I think when you come right down to 

it, when the percentages tilt as much as they do, we ought to as 

a free society be willing to risk the 1 to get the 99. 

Senator SCHUMER. Just if the Chairman would indulge me, you 

could cut that the other way and just have a law that deals with 

all unlawful leaks and still save the 99. 

Mr. LEVINE. But there are a number in the 1 percent—the unlawful leaks that do fall in the 99 percent side. 

Chairman SPECTER. Thank you very much, Senator Schumer. 

39 

Mr. Cooper, you mentioned Mark Felt, and certainly Bob Woodward has done a phenomenal job, and I am one of his many fans. 

I haven’t read all of his books but have read some of them. When 

Mark Felt’s identity was disclosed as Deep Throat recently and the 

comment was made that Mr. Felt had gone to Mr. Woodward because there was no one else to go to—he could not go to the higherup in the FBI because Mr. Felt felt he had reason not to trust L. 

Patrick Gray, that he couldn’t go to the White House because the 

White House was under investigation, and I was cheering him on 

back in 1974. But since then I have had a little more experience, 

and the thought crossed my mind: Why didn’t Mr. Felt come to the 

Speaker of the House of Representatives or the Majority Leader? 

What he was really dealing with here amounted to potentially impeachable offenses? And if the comment is made to Bob Woodward, 

it goes to the Washington Post. If it goes to the Speaker of the 

House, who may take it to the Judiciary Committee Chairman—occasionally Chairmen of Judiciary Committees act—there might 

have been an earlier start of impeachment proceedings. 

Now, we do not quite get into all the ramifications of source, and 

nobody was about to go to jail, and nobody subpoenaed Bob Woodward to find out who Deep Throat was. But had that information 

been in the public domain, you would have had public officials who 

had the power to do something about it in a very tangible way— 

not that writing a series in the Washington Post didn’t perhaps 

have the same result. This may be beyond the purview of our discussion, but when you mentioned him, that concern came to my 

mind. Do you think Mark Felt would have had a decent reception 

if he had gone to the Speaker of the House of Representatives or 

the Majority Leader of the Senate? 

Mr. COOPER. Well, Mr. Chairman, it is an interesting question 

you pose. I obviously cannot speak for Mr. Felt and what his motives were at the time. I do know that there are a number of people 

who have important information to disclose who feel more comfortable bringing them to journalists than they would to the Government Accountability Office or the Speaker of the House because 

they trust journalists to keep their confidences and believe that 

that is the most effective avenue for revealing what they have to 

say. 

Chairman SPECTER. Mr. Safire, you— 

Mr. COOPER. May I add one other thing, Mr. Chairman? 

Chairman SPECTER. Certainly. 

Mr. COOPER. I do think the experience of Mr. Felt, the more we 

learn about what happened, does show the difficulties of distinguishing between what might be called good leaks and bad leaks 

and the motives of leakers. I think, you know, as it emerges that 

much of what motivated Mr. Felt was, you know, bureaucratic warfare between the FBI and the White House and the FBI wanting 

to preserve its prerogatives to do some things, which in retrospect 

we wish did not, I think it is a reminder that trying to draw a 

bright line between the good leak and the bad leak, the good leaker 

and the bad leaker, is not as easy as we may think. 

Chairman SPECTER. Well, I think that is certainly true, but Mr. 

Felt was not without remedies, and you had a constitutional crisis 

40 

in this country, and there are some public officials you can trust 

if you search hard. 

Mr. Safire, you were in the White House in President Nixon’s 

time. You departed before all of this erupted. 

Mr. SAFIRE. About a week before. 

[Laughter.] 

Chairman SPECTER. Did you have any special reason for your 

timing? 

[Laughter.] 

Mr. SAFIRE. Blind luck. 

Mr. ABRAMS. Remember the Fifth Amendment, Bill. 

Mr. SAFIRE. Blind luck, Mr. Chairman. 

Chairman SPECTER. He does not believe in waivers, Mr. Abrams. 

[Laughter.] 

Chairman SPECTER. What do you think about going to the Speaker of the House of Representatives or the Majority Leader in constitutional process and reporting it to some officials—they are really law enforcement officials in a sense—to bring impeachment proceedings to really go to the place where some very effective action 

can be taken? 

Mr. SAFIRE. Well, if I were Mark Felt at the time, being the Deputy to J. Edgar Hoover for many years, I would think twice about 

going to the Judiciary Committee because the Chairman would say, 

‘‘Hey, what is this about black-bag jobs and illegal wiretaps that 

you were in charge of? ’’ 

So there might be a reluctance on the part of a Government employee who has been doing some funny business to point to some 

funny business elsewhere. That is not a problem he would face 

going to the press. Maybe someday when his name would come out 

30 years later, but at the time the smart thing for somebody who 

was out to either get even with an administration that did not give 

him the job that he wanted or was motivated by some noble motive 

that suddenly hit him after a lifetime of black-bag jobs and wiretaps, so he goes to the Washington Post. 

My only regret there is that he went to the wrong paper. 

[Laughter.] 

Chairman SPECTER. Spoken out of true principle. 

[Laughter.] 

Chairman SPECTER. I think if he had gone to the Speaker or the 

Majority Leader—Mansfield was the Majority Leader, a man of impeccable integrity—they would not have looked for other defalcations on his part. And if they had found them, law enforcement officials overlook the minor if you have something bigger, something 

more important to do. 

Well, I just raise that because in all of the commentary on Mr. 

Felt—and there was a lot of it—nobody ever suggested that there 

was someplace that he could have gone. And my comments have 

very limited circulation today, but I think people ought to know 

that there are places where you can go. And if you are dealing with 

potential impeachable offenses, that is of the utmost magnitude for 

the importance of this country, and there are remedies besides 

talking to the media. But I start from the proposition of being very 

concerned about reporters’ sources and the great good the press has 

done over the years in exposing corruption and malfeasance. 

41 

One final point before adjourning, and this has been a long and 

a very productive session, I think. Mr. Abrams, I want to come 

back for just a moment to the fine in 1978 that the New York 

Times paid and to discuss with you for just a moment or two at 

least my view of the difference between a jail sentence and a fine. 

I watch what is happening with these fines being levied, and the 

Judiciary Committee would like to put that on the agenda, too, as 

to—well, oversight of the Department of Justice as to whether 

these fines are really meaningful. 

I don’t know when Corporation X pays Y dollars how much it 

really hurts anybody, but I do know a jail sentence is very, very 

tough medicine. And when Ford Firestone came up, I put a provision in the bill that I would like to expand, and we have legislation 

in the works, we put criminal penalties. If you knowingly and recklessly place someone’s life in danger or grievous bodily harm, that 

constitutes actual malice, and that supports a prosecution for murder in the second degree under common law, which characteristically draws a 20-year sentence under common law. 

And we have a lot of corporate conduct and a great many lines 

where we have seen—in Ford Pinto, for example, they put the gas 

tank in a certain spot where it was dangerous and killed people because it saved $8. They made a calculation as to how much money 

it would save. And the prosecutor, as I recollect it, in Indiana went 

after Ford but did not have the resources to really do the job. 

We are going to be exploring whether that kind of criminal liability might attach where it really has an impact. Ford and GM pay 

punitive damages, which are infinitesimal when lives are taken. 

And we have seen what is happening in the pharmaceutical industry. 

So let me ask you, my question to you is: Is a fine really sufficient if—I am not saying the New York Times should have been 

fined or held in contempt or anything should have happened. But 

once you get to that point, is a fine really sufficient? 

Mr. ABRAMS. First, the fines in the 1978 matter—which totaled 

almost $300,000 and would have been considerably more if the trial 

had gone on longer. The only reason they were cut off is that they 

ended when the trial ended, and Mr. Farber, the journalist, was let 

out of jail and the judge lost the power to continue to fine the 

Times. 

Obviously different corporations have different tolerances for 

pain, and the amount of money has a direct impact on that. I 

mean, when— 

Mr. SAFIRE. Three hundred thousand dollars back then was a lot 

of money. 

Mr. ABRAMS. When John L. Lewis’ union was fined, you know, 

a million, two million dollars a day for the strike back in the 1940s, 

that was, you know, an enormous amount of money. That can have 

and was supposed to have a major effect on the entity. 

I think it is hard to talk about the examples that you have cited, 

Senator, and mesh them with the journalistic examples that we 

have been talking about most of the morning. But I do think, indeed, I think I know that in the traditional corporate sense, the examples that you gave, even the risk of any corporate executive 

going to jail for doing the sorts of things that you were talking 

42 

about would have a genuine, an enormous effect on corporate behavior. 

I remember when I was clerking in Wilmington, Delaware, a 

hundred years ago, it was not long after in Philadelphia the GE 

sentences were imposed. 

Chairman SPECTER. Did you have Professor Dreschen at Yale, 

Mr. Abrams? 

Mr. ABRAMS. No, I did not. But the impact on the marketplace 

of jailing a few executives in the GE case was enormous. And I look 

forward to the results of your hearings in that respect. 

Chairman SPECTER. Well, thank you very much, gentlemen. This 

has been one of our lengthier hearings to have people sitting so 

long in one place for some 21⁄2 hours, but this is a matter which 

the Committee is going to pursue, and it has been enormously enlightening, and you drew quite a crowd. We have more Senators 

than witnesses. That is kind of unusual for this Committee. 

[Laughter.] 

Chairman SPECTER. Thank you all very much. That concludes 

the hearing. 

[Whereupon, at 11:58 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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