In re Grand Jury Subpoena, Judith Miller

397 F.3d 964 (2006)

Quick Summary

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Judith Miller (plaintiff) and Matthew Cooper (plaintiff), journalists, refused to comply with grand jury subpoenas regarding the disclosure of CIA agent Valerie Plame’s identity by government officials. The issue was whether journalists have a First Amendment or federal common law privilege to protect confidential sources in such investigations. The court concluded that no such privilege exists under the First Amendment or federal common law, affirming the contempt charges against Miller and Cooper.

Facts of the Case

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Judith Miller was an investigative reporter for the New York Times and Matthew Cooper was the White House correspondent for Time Magazine. On January 28, 2003, President George W. Bush claimed in his State of the Union address that Saddam Hussein sought significant quantities of uranium from Africa. On July 6, 2003, former Ambassador Joseph Wilson published an op-ed in the New York Times, asserting that during his investigation in Niger he found no credible evidence that Hussein sought uranium. Shortly after, columnist Robert Novak published a piece revealing that Wilson’s wife, Valerie Plame, was a CIA agent involved in weapons of mass destruction and that she suggested Wilson’s trip to Niger.

The disclosure of Valerie Plame’s identity led to an investigation by the Department of Justice into whether government employees had unlawfully disclosed the identity of a CIA agent. Special Counsel Patrick Fitzgerald subpoenaed both Cooper and Miller, who had reported on the controversy. Both refused to comply with the subpoenas, claiming protection under a reporter’s privilege from the First Amendment or common law.

Cooper was subpoenaed on May 21, 2004, but refused compliance even after the scope was narrowed. His motion to quash was denied on July 6, 2004. A similar subpoena was issued to Time, Inc., which was also denied when they moved to quash. Both Cooper and Time were found in civil contempt. They eventually complied partially after further negotiations.

On September 13, 2004, Cooper received another subpoena for documents related to his articles and conversations about Wilson and Plame. Again, motions to quash were denied, leading to another contempt finding on October 13, 2004. Similarly, Miller received subpoenas in August 2004 relating to her conversations with a government official about Valerie Plame but also refused to comply and was held in civil contempt.

Procedural Posture and History

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  1. May 21, 2004: Grand jury subpoena issued to Matthew Cooper seeking testimony and documents related to specific articles.
  2. June 3, 2004: Cooper moved to quash the subpoena.
  3. July 6, 2004: Chief Judge of the United States District Court for the District of Columbia denied Cooper’s motion.
  4. August 6, 2004: District Court also denied Time’s motion to quash their subpoena.
  5. September 13, 2004: Further subpoena issued to Cooper seeking additional documents related to his articles.
  6. October 7, 2004: District Court denied motions to quash subpoenas issued to Cooper and Time.
  7. October 13, 2004: District Court found Cooper and Time in contempt for refusing to comply with subpoenas.
  8. August 12 and August 14, 2004: Grand jury subpoenas issued to Judith Miller seeking documents and testimony relating to her conversations about Valerie Plame.
  9. Miller moved to quash her subpoenas.
  10. District Court denied Miller’s motion to quash and held her in civil contempt for refusal to comply.

I.R.A.C. Format


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Whether journalists have a First Amendment or federal common law privilege to protect confidential sources in the context of a grand jury investigation into unauthorized disclosure of a CIA agent’s identity.

Rule of Law

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  • The First Amendment does not provide a privilege protecting journalists from revealing confidential sources in front of a grand jury. Branzburg v. Hayes, 408 U.S. 665 (1972).
  • If any federal common law privilege exists for reporters, it is not absolute and can be overcome in certain circumstances.

Reasoning and Analysis

Reasoning Icon

The Supreme Court’s decision in Branzburg v. Hayes is directly applicable here. In Branzburg, the Court held that journalists do not have a First Amendment privilege against testifying before a grand jury. The present case mirrors Branzburg’s facts where journalists sought to protect their sources despite grand jury subpoenas.

The court noted that grand juries have an essential role in investigating potential crimes and gathering evidence. The public’s right to evidence overrides any claimed reporter’s privilege unless specifically protected by constitutional or statutory provisions.

The argument for a federal common law privilege is also examined. Even if such a privilege existed, it would not be absolute. In this case, the government’s need for the information concerning national security breaches outweighs any qualified privilege.


Conclusion Icon

The United States Court of Appeals for the District of Columbia Circuit affirmed the District Court’s decision holding Judith Miller and Matthew Cooper in civil contempt for refusing to comply with grand jury subpoenas. No First Amendment or federal common law privilege protects their confidential sources in this context.

Concurring Opinions

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Judge Tatel concurred in the judgment but emphasized that while he believes there should be a qualified common law reporter’s privilege, it was overcome by the specific needs of this investigation.

Key Takeaways

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  1. The First Amendment does not provide journalists with a privilege to refuse to reveal confidential sources in grand jury investigations.
  2. The Supreme Court’s decision in Branzburg v. Hayes is directly applicable, affirming that journalists must testify before grand juries.
  3. Grand juries play a crucial role in investigating potential crimes and public interest in evidence collection supersedes claimed reporter privileges.
  4. A federal common law privilege for reporters, if it exists, is not absolute and can be overridden by governmental needs, especially concerning national security breaches.

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