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Special counsel Patrick Fitzgerald has given the white-collar criminal lawyers in Washington something relatively new to think about: representing journalists caught in grand jury investigations into government leaks. I learned this firsthand. I represented reporter Matthew Cooper of Time magazine in the Fitzgerald investigation. In the past, leak investigations may have seemed the paper tiger of government enforcement actions. Then the Department of Justice asked Fitzgerald, the U.S. attorney in Chicago, to investigate the alleged “outing” of CIA agent Valerie Plame. When U.S. marshals handcuffed New York Times reporter Judith Miller last July and whisked her off to the detention center in Alexandria after she refused to testify to the grand jury about her sources, any perception of a paper tiger was gone forever. On the heels of Fitzgerald’s success in forcing reporters to reveal their sources, the Justice Department recently announced a criminal investigation aimed at finding the source of allegedly damaging national security leaks concerning warrantless electronic surveillance by the National Security Agency. Congress has already announced its intent to look into two other alleged leaks of classified data. One involves leaks about the government’s rendition program, by which detainees held by the United States are “rendered” to other countries for more vigorous interrogation and the other involves leaks about the involvement of the Central Intelligence Agency in detention centers throughout the world. It seems that an epic struggle is shaping up between the public’s right to know and the government’s efforts to fight the war on terror. Caught in the middle will be any number of journalists, who will be in need of counsel. UNIQUE ISSUES While these leak investigations will in many ways be no different from the standard criminal inquiries that the white-collar bar regularly encounters, representing journalists does raise some unique issues. What follows is a compendium of advice for the lawyer about to represent a journalist. •

Understand what your client has promised. At the heart of a leak investigation is your client’s promise of confidentiality to a source. You will find, however, that the ways in which journalists promise confidentiality are legion, and there is no guidebook. Phrases such as “on background,” “off the record,” and “deep background” all can mean different things to different people. In fact, the source may have a different understanding than your client of what was meant. You should also understand the setting in which your client made his promise of confidentiality. Was it over the phone, to an official likely to keep a phone log? Was it in person, under circumstances in which there is a documentary record of the meeting, such as a calendar or a meal receipt? With this information you will gain insight into the prosecutor’s investigative steps leading to your client.


Determine what relevant documents your client controls. All reporters take notes, and all reporters send e-mails to their editors and colleagues. By and large, the electronic messages sent within the company are controlled and owned by the company, making them susceptible to a corporate subpoena. But the handwritten notes taken by your client during (or right after) his conversations with his sources may, in some media organizations, be the reporter’s personal property. The difference may be critical to your strategy, especially when your client’s corporate employer is less likely to refuse a judge’s order to comply with a grand jury subpoena. Perhaps the prosecutor will learn the source’s identity by obtaining corporate records, thus obviating the need for your client to go into civil contempt. In any event, the existence of both corporate and personal documents allows you a bit more flexibility in fashioning your strategy and opens additional avenues for compromise to keep your client out of jail. For instance, the prosecutor may obtain the information he needs from corporate documents, and your client may be able to avoid testifying about his sources before the grand jury. Another important piece of data from the documents: To whom did your client reveal the identity of his source? Here again, different media organizations have different procedures for the treatment of source identities, but it is likely that at least one editor knows the source’s identity. This is a potentially complicating factor if multiple subpoenas for testimony are issued. Although Fitzgerald never went down this path, other prosecutors may not be so restrained and may subpoena for grand jury testimony everyone within a media organization with knowledge of the source’s identity.


Decide how your client should cover the story and deal with other inquiring journalists. Vituperative criticisms during the Plame investigation were directed at those reporters who continued to report and opine on the investigation without revealing their own central roles as witnesses in the unfolding drama. Make sure your client and his employer have a clear understanding about the role your client will play in ongoing coverage of the story. Will he be permitted to be part of the coverage? Will he be permitted to be interviewed by other reporters about his involvement? Will he be permitted to discuss the case on talk shows? The rules of engagement on these issues must be clear from the start. You should also be aware that your client’s employer will probably want him to write a firsthand account of his experience as a grand jury witness. Establish the ground rules early in the case for this unusual piece of journalism. Will your client be expected to cooperate with other reporters on the staff assigned to cover his grand jury appearance? Will you, as counsel, be allowed to weigh in during the editing of your client’s piece? Make sure to tell the prosecutor as early as possible that your client intends to write about his appearance. Your candor, and the advance warning, will be appreciated.


Remember that the U.S. Court of Appeals for the D.C. Circuit does not recognize a reporter’s privilege. Although 49 states and the District of Columbia have some form of shield law, and although many people read the Supreme Court’s decision in Branzburg v. Hayes (1972) as creating some type of journalists’ privilege, the imprisonment of Judith Miller should be your guide in determining your legal bearings. Simply put, your client will likely be held in civil contempt if he refuses to testify before a grand jury. Proceed accordingly. In the Plame case, Judge Thomas Hogan of the U.S. District Court for the District of Columbia was quite willing to stay the imposition of his civil contempt findings to allow the journalists and their employers to seek appellate review. This had the effect of delaying the investigation by a year. Now that the D.C. Circuit has ruled, and the Supreme Court has refused to take the case, other district court judges may not be so willing to stay the imposition of civil contempt in light of the somewhat-settled law in this circuit. It would be prudent to calibrate your expectations to that more truncated timeline.


Figure out how to obtain a waiver from your client’s source. Before having your client go to jail to honor his promise of confidentiality, it obviously would be wise to see if your client’s source would be willing to waive that promise. Easier said than done. There is no agreement among journalists or their lawyers as to what constitutes an acceptable waiver, and most journalists appear to reject the general waivers prosecutors obtain from government witnesses. In the Plame investigation the reporters sought various forms of personal, direct assurances from their sources that the confidentiality had actually been knowingly, voluntarily, and specifically waived for the particular conversations at issue. The task of obtaining these personal waivers is fraught with danger. The most obvious avenue for the pursuit of the waivers is a direct phone conversation between your client and his source. But, in reality, such a discussion between two grand jury witnesses about the substance of their grand jury testimony may be a prescription for disaster. If you take this route, I would advise telling the prosecutor in advance, as a way to reduce the risk of allegations of obstruction. This can be done without revealing the identity of the source: Simply inform the prosecutor that your client is reaching out to his source and you will inform him of the results. Another option is for you, as counsel, to call the source’s lawyer to discuss a waiver, but this presents its own difficulties. It implicitly reveals the identity of your client’s source in an unprivileged conversation, making both counsel vulnerable to be called as grand jury witnesses. Again, Fitzgerald never went in this direction, but others in the future may. Still, the counsel-to-counsel call is a better choice because it significantly reduces the risks that your client will be accused of doctoring his testimony with his source in a pre-grand jury conversation.


Make sure your client understands his legal exposure. Incarceration for civil contempt is limited in length to the pending duration of the grand jury that issued the subpoena. This is not, however, the limit of your client’s exposure. In the Plame investigation, Hogan made clear when he imposed the civil contempt sanctions that, at some point, a recalcitrant grand jury witness crossed the line into criminal contempt or obstruction of justice. In addition, Fitzgerald seemed prepared to either extend the existing grand jury or call a new grand jury to continue the inquiry. Either of these actions would have significantly extended the civil contempt term in jail. Fitzgerald demonstrated that prosecutors could successfully use prosecutorial tools to identify confidential sources. Hogan demonstrated that, at least in his court, journalists who refuse to answer grand jury questions about their confidential sources face the prospect of significant jail time, and a continued refusal to comply with the court’s orders may result in criminal charges. Leak investigations will now become a fixture in the Washington legal landscape. Get ready.

Richard A. Sauber, a partner in the D.C. office of Fried, Frank, Harris, Shriver & Jacobson, is co-chair of the firm’s litigation department.

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