## Facts

- A federal grand jury investigated the public disclosure of a covert CIA officer’s identity in connection with a leak investigation.
- Special Counsel Patrick J. Fitzgerald issued grand-jury subpoenas to journalist Judith Miller, journalist Matthew Cooper, and Time Inc. seeking testimony and related information about confidential sources.
- Miller, Cooper, and Time moved to quash, asserting a reporter’s privilege under the First Amendment and federal common law (Fed. R. Evid. 501).
- The district court denied the motions and held the subpoenaed parties in civil contempt when they refused to comply.
- The subpoenaed parties appealed the contempt orders to the D.C. Circuit.
- The appellate decision consisted of separate opinions; the judges did not share a single rationale on whether a federal common-law reporter’s privilege exists, but agreed on the disposition.

## Issues

1. Whether the First Amendment provides journalists a privilege to refuse to disclose confidential-source information sought by a federal grand jury in a criminal investigation.
2. Whether a qualified reporter’s privilege exists under federal common law (Fed. R. Evid. 501), and, if so, whether it bars enforcement of these subpoenas.
3. Whether the district court’s use of ex parte, in camera submissions in assessing the government’s showing violated due process.

## Decision

- The D.C. Circuit affirmed the district court’s civil contempt orders against Miller, Cooper, and Time Inc.
- The court held there was no First Amendment reporter’s privilege applicable to resist these grand-jury subpoenas.
- The court held that, even assuming a qualified federal common-law privilege exists, it was overcome on this record by the government’s showing.
- The court rejected due process and other ancillary challenges, including objections to ex parte, in camera submissions.

## Legal Principles

- Under controlling Supreme Court precedent, journalists generally have no First Amendment testimonial privilege to withhold relevant evidence from a federal grand jury.
- Any reporter’s privilege recognized under Fed. R. Evid. 501 would be qualified, not absolute, and may be compelled where the government’s need is sufficiently strong.
- In determining whether a qualified privilege is overcome (assuming it exists), relevant considerations include whether the information is critical to the investigation, whether reasonable alternative sources have been exhausted, and whether the public interest favors disclosure.
- In grand-jury matters, courts may rely on ex parte, in camera submissions when necessary to protect grand-jury secrecy and classified or sensitive information, consistent with due process.

## Conclusion

The D.C. Circuit held that the First Amendment did not excuse subpoenaed reporters from providing evidence to a federal grand jury, and that any qualified common-law reporter’s privilege (if recognized) was defeated by the government’s demonstrated investigative need; the contempt orders for noncompliance were affirmed.


In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005)