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Justice Dept.'s guidelines on subpoeaning journalists

Floyd Abrams

First Amendment attorney

Floyd Abrams

Soon after Branzburg, the Justice Department came up with its own regulations limiting what it would do related to reporters. There was sort of an official truce. ... What's changed?

What's happened is that there has been an enormously increased polarization in the country of people based on their political views and enormously augmented within this administration, post-9/11, of the exclusive right to determine what is in the national interest, exclusive in the sense of trying to rule Congress out; exclusive in the sense of trying to keep the courts out; and certainly exclusive in the sense of trying to keep the press from publishing materials that the government thinks ought not, for one reason or another, to be published.

That's a big change. Governments have always been angry. Administrations have always been angry at the press. That's not changed. But the degree of the anger, and the sense that it is a matter of national priority as well as in the self-interest of the administration to really take on the press, to really go after them, to bring them down, that's something new, and something newly disturbing.

 
Mark Corallo

Former director of public affairs, Justice Department

Mark Corallo

First of all, the guidelines are very clear: that a media subpoena should only be sought when all other avenues of investigation have been foreclosed and exhausted, and only in exigent circumstances. And exigent circumstances, when I arrived, they were explained to me to be grave national security matters or instances of really life and death or physical harm to people. ...

Emergencies.

Yeah, emergencies.

Life and death.

Life and death. ... I got dozens of [requests to subpoena journalists] in my three-year tenure. I approved one. And I let it go for two years, and I struggled with it.

What do you mean, you let it go for two [years]?

I made the prosecutor come back to me several times over the course of two years before I approved it. When it leaves the public affairs director's [office], ... it goes to the deputy attorney general, who can override the public affairs director, but it never happened in my tenure. Then it goes to the attorney general. Under Attorney General Ashcroft, it was very clear that if I said no, it stopped right there. That was the end of it.

... Attorney General Ashcroft always said no?

Attorney General Ashcroft always said no. He agreed with me on every single case.

Do not subpoena the journalists.

Correct.

Except one case.

Except one case.

Can you tell us about that case?

I can't tell you about that case. It was a national security case. I believed, after long reflection, that it did put innocent people's lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot. ...

Why were these guidelines created?

... Just because the law says you can do something doesn't mean you always should do it. I think that principle, even in the Nixon administration, was understood to be an important principle. ... I haven't seen a court yet that has formalized this, what we consider to be this privilege that a reporter has with ... his or her sources. But I think they understood that we'd better recognize it somehow; that there ought to be some statement that within the government ... recognizes that very important privilege. Let's face it: The press is the last line of defense in a free democracy. ... If you see widespread corruption, and you don't feel that there's anywhere else you can go, well, thank God for a free press. ...

 
Lucy Dalglish

Executive director, The Reporters Committee for Freedom of the Press

Lucy Dalglish

We'd had a certain degree of success over 30 years in dealing with the Justice Department. They had internal guidelines when they would even go to subpoena a reporter; they would have to get permission from the attorney general's office here in Washington.

So the attorney general himself?

Yes, or the designated person that signs off. But yes, it had to go right to the AG's office. Those guidelines worked. Sometimes there were problems with them, but over the years they did weed out a lot of subpoenas.

Then we came to a situation where we had a couple of high-profile cases that had special prosecutors. The special prosecutors such as Patrick Fitzgerald in the [Valerie] Plame case and the special prosecutor in Rhode Island in the Taricani Plunder Dome case didn't have to use those guidelines and decided they wanted to know who those sources were.

 
Randall Eliason

Former prosecutor

Randall Eliason

We talked to Mark Corallo, formerly with the DOJ under Attorney General [John] Ashcroft. He calls this case an abuse of power; he says the DOJ under General [Alberto] Gonzalez has basically violated the [DOJ] guidelines. Is that valid?

Well, I'm not sure how Mr. Corallo could say that without having access to the grand jury information. ... It's pretty hard to make a judgment of whether the guidelines have been violated when you don't have the information as to what's being investigated and what's going on. So that's not entitled to much weight in my mind.

He told us, in the DOJ guidelines, that only under "exigent circumstances" should journalists be pursued, and he said that "exigent" was defined ... as emergencies, life and death, real national security threats, a situation where a leak caused a terrorist organization to be tipped off as to where the feds were. ...

Yeah. I think there's some disagreement about what that term "exigent" means within those guidelines. I've seen other interpretations of it as well. He's entitled to his view. But again, I think without knowing everything that the government is looking at in this investigation and everything that's going on in the grand jury, it's awfully hard for someone on the outside to make a judgment about whether or not the guidelines have been complied with.

The other thing that's important to keep in mind here as well is a federal judge asked the government to look into this. This isn't something that the prosecutors have just gone out on their own. ... When a federal judge asks you to investigate why their orders were violated, you have to take it seriously.

 
Mark Fainaru-Wada

Reporter, San Francisco Chronicle

Mark Fainaru-Wada

Did you assume that the Department of Justice was going to use the guidelines they still have? Did you think you were still going to be protected by this sort of truce that took place between journalists and the federal government?

I thought the guidelines certainly would help. Those guidelines, as we've read them and as we've been taught them by other people, would seem to indicate we wouldn't necessarily be subpoenaed. ...

In terms of why it took them as long as it did, we knew that the guidelines were such that, in order to get to the point of subpoenaing us, they would have to go through the process of eliminating any other ways to find out who the source or sources were, ... and we knew that they were still doing that kind of investigation.

 
Edwin Meese

Former attorney general

Edwin Meese

I've interviewed FBI officials who have supervised leak investigations, and they say one of the really frustrating parts of that is they get the complaint, but then of course the only person who knows who leaked it is the reporter, and then they would never get permission from the Justice Department, from the attorney general, to actually subpoena the reporter.

Yeah, I don't remember any cases where -- there may have been one or two -- where I gave permission to subpoena a reporter. I don't remember any offhand. So they must have been very rare, if at all.

I think that's right. It ought to be a case which is very important, where there's a serious crime committed, and where there's no other way to get that information before a court or before a grand jury and where, in the absence of the truth being revealed to a grand jury or a court, a grave injustice would be done. So I think it ought to be very rare. But when you get down to the point where justice cannot be done without the information, then I think there's an obligation on the reporter to provide the information. ...

 
William Safire

Columnist, The New York Times

William Safire

You have these guidelines that came out of that Branzburg decision, and the Justice Department is very careful to make sure that before you subpoena a reporter, you try everything else in the world; then if it's a matter of extraordinary urgency, then you go to the judge, and the judge then has to decide, is this a capital case? Is a person who was accused of a crime possibly going to jail unfairly because the reporter wouldn't -- ? And the great weight was on the side of the reporter [who] has a certain obligation to keep his sources confidential.

Well, now, probably because there's a special investigator, a special counsel who works outside the guidelines of the Justice Department, that started this whole business of subpoenaing reporters and their notes. Because it had to do with the feeling that the administration was leaking something deliberately and that would harm a critic because that was the feeling then, suddenly reporters, journalists who would protect sources said, "Well, you don't protect all sources."

They lost sight of the principle, and the principle is this: The government has all kinds of ways to get information. It can eavesdrop; it can wiretap legally; it can offer immunity to criminals, to people who have committed what seem to be crimes in order to get them to testify. The long arm of the law is a powerful arm in getting information.

What is the essential route to get information by the press? That is to offer a confidentiality, so that if somebody wants to whistleblow or leak something, he knows that you won't rat him out; you'll protect him. As a result of that, a great deal of information comes to the public and also comes to law enforcement that wouldn't get it otherwise because people don't want to get involved.

 
Tasia Scolinos

Director of public affairs, Justice Department

Tasia Scolinos

[Tell us about the criteria the Justice Department applies when issuing subpoenas to the press.]

... There's no legal requirement that the department had to put special guidelines in place when it comes to subpoenaing members of the media; those are self-imposed guidelines.

Several years ago, the department took it upon itself to develop some internal attorney general guidelines when it came to subpoenaing members of the media. ... From the department's viewpoint, the guidelines really were constructed to strike the right balance. That balance is on one hand, the taxpayers expect their government to pursue, and aggressively pursue, criminal wrongdoing using all legal tools at our disposal. On the other side of the equation, you have the First Amendment and the public's right to information. ... It was a recognition that in certain instances, it was going to be appropriate and the right thing for the department to pursue certain types of information from the media, but that those would be looked at on a case-by-case basis using a number of criteria.

That leads me to the process itself. ... For starters, it involves a very intensive review by several different offices within the Justice Department. Let's say you have a prosecutor who's looking at a case out in the field. Before they even would make the request to the Justice Department, they have to do a couple of things first. One thing is they have to have pursued all other means through non-media sources to get that same information. They have to have made attempts to get that information from the media on a voluntary basis. They have to have determined that there is no other way that there's any other information with respect to this case that could give them the same certainty with respect to a person's guilt or innocence that that particular type of information that they're seeking would.

Once they've gotten to a point where they're comfortable that those criteria are met, they would then draft a very detailed memo. They would send that up through their U.S. attorney, so there would have to be a signoff process there. It would then go to main Justice [Department], and then once it gets to the department, several different folks within the department in different offices look at it. That would be [within] the criminal division.

It would then also come to my office, the Public Affairs Office. As you know, one of our rules is to be as the liaison with the media. We talk with the press daily. That's part of our job. And so we certainly would weigh in from that perspective. It then would go to the Office of the Deputy Attorney General, the number two at the Justice Department.

Ultimately, these media subpoenas go to the attorney general himself for final signoff if there's not concurrence through this internal process. In other words, if there's different offices within the Justice Department that don't agree, ... the attorney [general] himself would then make that determination. ...

[You said] that the use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information. ... What does that mean, "exigent circumstances"?

... It's difficult, when you look at the source subpoena cases, to characterize them all one way. They're looked at on a case-by-case basis, and we're looking at a 15-year span here. I will say as a general matter, they tend to be cases that have some importance to them; there's some real significance or there's a circumstance perhaps, as the case is being litigated. There could be an aspect of this with respect to the judge, where they have requested a particular action that would be taken that would perhaps weigh on the department's decision on whether or not to go forward. There can be all sorts of different exigent circumstances that would weigh into that process, that would be an example of one.

 
Lance Williams

Reporter, San Francisco Chronicle

Lance Williams

I didn't believe this would get us subpoenaed, because I was generally aware of the Justice Department guidelines then in place. And I just didn't think we were going to get to the level of what they call "exigent circumstances" on this. ...

Exigent circumstances? What do you mean?

It's one of the elements that [the Department of] Justice used to consider when it thought about issuing a subpoena against a reporter. Let's say a reporter is about to write a story that would betray troop movements at a time of war; that would be an exigent circumstance. ... We just didn't think a sports story about steroids, that they would feel a subpoena was justified. ...

 
Bob Woodward

Reporter, The Washington Post

Bob Woodward

In the wake of the Branzburg decision and Watergate, the Justice Department promulgated guidelines -- guidelines that became more of a public recognition that reporters needed some protection for their sources. It appears that that truce, if you will, has broken down --

Yeah, that's a good term. There has been, by and large, a truce for a good number of decades on this --

-- in the federal courts and federal procedure. And it's the Justice Department that has to do these investigations, and the Justice Department is run by the White House, basically.

Yes.

So the Justice Department and the FBI is being involved in investigations of reporters for leaks of information, whether it's [Rule] 6(e) material or national security information, right? And there's willingness to subpoena reporters, which FBI officials have said to us was always the reason they never liked these cases, because they could never subpoena the reporters until now. So things have changed.

That's obvious, that it has changed. Your question, though, was, does it mean it's more hostile than it was in the Nixon administration? I don't see it, because they had much more to protect in the Nixon era.

That doesn't mean this isn't real or serious. My sense of it is that it is one of the many things they haven't totally thought through. I think it's kind of, "Investigate leaks; go out and do this." You hear about it, and as a journalist, I think it's really just awful public policy, unless they can really show serious damage. And I haven't seen any evidence of serious damage yet.

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posted feb. 13, 2007; last updated feb. 27, 2007

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