The Feds Are Shielded From Logic

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

In strident, sky-is-falling tones, the Justice Department this week urged an increasingly-concerned Congress to stay out of the one-sided fight between prosecutors and the press over "leaked" information that may be relevant to a criminal investigation. Trust us to be fair to journalists, government lawyers told Congress with a presumably straight face, even as Miller does time in the pokey for a story she never published. If federal officials were eligible for Pulitzer Prizes in Chutzpah, surely Deputy Attorney General James Comey, the author of an "issues and implications" memo to the Senate Judiciary Committee, would be a front-runner.

The Senate and the House now are considering a "shield" law that would bring federal rules into line with similar laws in 31 states and the District of Columbia. The federal legislation would give journalists more protection — but not complete immunity — from the sorts of dismaying choices that Miller and fellow journalist Matt Cooper of Time Magazine faced a few weeks ago during the investigation into the public disclosure of former CIA agent Valerie Plame's identity. If passed, the federal shield law would significantly limit the circumstances in which prosecutors could compel testimony from reporters; testimony that by definition is seeped in First Amendment import.
The timing of this heightened (and welcome) Congressional interest is no coincidence. Wednesday's well-publicized hearing came just weeks after Miller was jailed as an unintended consequence of a federal investigation into whether any Bush administration officials (or anyone else) illegally leaked Plame's identity to journalists. The federal prosecutor on the case, Patrick Fitzgerald, relied upon the convenient lack of a federal shield law to force Miller and Cooper either to disclose their confidential sources — people to whom the journalists had promised secrecy — or be held in contempt. Cooper caved. Miller didn't. And now we know that the president's right-hand man, Karl Rove, was at least one of the "leakers" and now, perhaps, a suspect, too.

As federal shield (or, more aptly, "non-shield") rules now stand, prosecutors alone get to decide whether and to what extent to push a reporter to reveal the identify of a confidential source and perhaps to disclose substantive discussions with that source. The proposed law would give judges the power to make those sorts of calls and would require prosecutors to established with "clear and convincing" evidence the need to bust up a reporter's confidentiality to his or her source. In other words, the new law, like the existing shield laws already in place, relegate prosecutors in this context to their traditional status within the criminal justice system — the status of litigant, not judge or jury.

Comey and Co. don't like this proposed shift in power and I can't say that I blame them. What player in a game would want to lose the right to referee as well? So the feds make four main arguments against the new legislation. None of these arguments are compelling. None adequately recognize the First Amendment interests involved. And all assume facts not in evidence. In fact, reading through Comey's statement, one feels its distinct boy-who-cried-wolf flavor. According to Comey, the government's "ability to effectively enforce the law and fight terrorism" will be seriously impeded if judges, not prosecutors, determine the fate of journalists trying to shield their sources. Silly you. You thought only loopy politicians were contemptuous of the judiciary.
First, the Justice Department argues that a federal shield law would depart "dramatically" from existing regulations "first, by requiring the Department to make its case before a court, after providing the news media an opportunity to be heard, and, second, by imposing a new 'clear and convincing standard'..." This, Comey suggests, would mean the need for "public mini-trials whenever the Department seeks relevant information in a criminal grand jury investigation or to justify a trial subpoena." This is the standard parade-of-horribles argument that lawyers often use to try to scare off well-intentioned reformers.

Surely it is not "dramatic" to suggest that the government ought to be required to convince a judge by good evidence that a core First Amendment function ought to be scuttled by compelling a journalist to testify about confidential sources. And surely the federal judiciary is well equipped to conduct discrete and private hearings to determine when this compulsion should occur. We ask our federal judges in a multitude of contexts to handle sensitive information and a federal shield law would simply add one more chore to that already extensive list. "Mini-trials" abound in the federal system. And a strong First Amendment is worth a little extra work by the courts, don't you think?

Second, Comey and Co. argue that the proposed federal shield law cannot accurately be compared with the many inoffensive state shield laws already in place. "None of the states deals with classified information in the way that the Federal government does, and no state is tasked with defending the nation as a whole or conducting international diplomacy." But this argument already is moot — the federal shield legislation has been amended to include a national security exception. And anyway, if shield laws were such a catastrophe — if they really meant the end of law enforcement as we know it — legislators in all those states with such laws would be clamoring to do away with them. They are not. Even though they shift power away from prosecutors and toward journalists, shield laws work. That's a fact.

The Justice Department also argues that the definitions contained in the proposed legislation are so ambiguous that they would, for example, "cover criminal or terrorist organizations that also have media operations, including many foreign terrorist organizations, such as al Qaeda ..." while at the same time perhaps "empowering news companies to block legitimate antitrust investigations into their potentially anticompetitive mergers and business practices." I would like to know the name of the government official who thinks that an attorney for al Qaeda is going to come into federal court to offer a legal challenge under the federal shield law. And I would like to be in court the day an attorney for some media conglomerate tries to rely upon a federal shield law to avoid some onerous civil penalty.
Finally, Comey argues that "in the absence of a credible demonstration that the subpoena power is being abused by the Department in this area, such that sources have dried up, with the result that journalists are unable to do effective investigative reporting, there is no need for a legislative fix ..." Comey is flat wrong about the impact Fitzgerald's work has had on confidential sources. Time Magazine publisher Norman Pearstine told the Judiciary Committee that several confidential sources already have told his reporters that they won't talk anymore. And, in any event, why in the world should Congress wait until the First Amendment is further tattered and journalists are in federal prisons around the country before taking action?

I don't contend that the language of the federal shield law is perfect. Lord knows, no legislation ever is and no opponent of any piece of legislation ever has failed to have a certain amount of ammunition with which to scare legislators into inaction. But Comey's concerns should not derail the bill from becoming law. There is no reason to believe that the federal courts can't handle the responsibility that the law would give them and every reason to understand why federal prosecutors wouldn't want to give up the awesome power they have to get people like Miller put into prison.

The criminal justice system, like the law itself, is all about balancing competing interests, and right now the balance, when it comes to a reporter's privilege, is too one-sided in favor of the federal government and against a strong free press. The time has come for Congress to step up and better protect journalists who are performing the vital function of shedding light on secret government business. With Miller in jail and thousands of her colleagues around the country impacted by the fear her imprisonment has generated, the time has come for Congress to step up and recognize that we need a strong First Amendment now more than ever.

The federal shield law, as proposed, isn't going to doom law enforcement capabilities. It isn't going to keep Osama bin Laden free. It isn't going to turn grand jury secrecy into a thing of the past. It isn't going to encourage criminal conduct by people who want to turn the shield into a sword. It's simply going to make prosecutors justify their actions more than they do now when it comes to reporters and their vital sources. There's nothing wrong with that and it's time Congress said so.

By Andrew Cohen