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Deep Throat Redux: Are Miller and Cooper Woodward and Bernstein?

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Suppose a federal grand jury in 1973 had subpoened Bob Woodward and Carl Bernstein and ordered them to reveal the identity of Deep Throat. The justification for this demand would be the public interest in prosecuting those individuals who had committed crimes in order to re-elect Richard Nixon in 1972 and then, later, obstructed justice to cover-up those criminal acts.

In that federal investigation, no legal principle -- whether groundedin constitutional, statutory, or common law -- would have prevented the grand jury from demanding that information. That was true then, and it remains true today. That is a travesty.

The logic of the reporter-source privilege is compelling. Just as we protect the confidentiality of a client's communications to his attorney in order to encourage clients to be candid in their conversations with their lawyers, just as we protect the confidentiality of a patient's communications with her doctor in order to encourage patients to be forthright in their disclosures to their physicians, so too should we protect the confidentiality of communications of sources to journalists in order to encourage sources to speak freely with reporters about matters of public concern.

Even the limited journalist-source privilege recognized in most states, which allows a prosecutor to compel disclosure if she can show that there is no other way to get the information, is insufficient to protect robust public discourse about matters of public concern. Indeed, in my hypothetical grand jury investigation in 1973, the application of such a standard to Woodward and Bernstein would likely have required them to reveal Mark Felt's identity. Compelled disclosure of Deep Throat's identity in 1973 would inevitably have chilled thousands of whistleblowers in the years since from revealing all sorts of important information about government and corporate abuse to the press and, through the press, to the public.

Just as there is an absolute attorney-client privilege, there should be an absolute reporter-source privilege. It is true that, in on-going investigations, the existence of such a privilege will sometimes prevent prosecutors from learning relevant information. This will make some criminal prosecutions more difficult, perhaps even impossible. But this is no different from the attorney-client privilege. Moreover, without the reporter-source privilege, many sources won't disclose the information in the first place, so there won't be anything to demand from the journalist anyway. Congress should enact federal recognizing this privilege.

But even if Congress did this, such legislation would afford no succor to Judith Miller and Matt Cooper. Recall that Cooper and Miller are reporters for the New York Times and Time magazine who are challenging their contempt citations for refusing to disclose to a federal grand jury the names of the individuals in the White House who allegedly told them that Valerie Plame was a CIO operative. Miller and Cooper claim, in effect, that they stand in the shoes of Woodward and Bernstein. In this, they are wrong.

Continuing the analogy to the attorney-client privilege, that privilege is absolute for confidential communications made by a client to an attorney "for the purpose of receiving legal advice." If the client speaks with a lawyer not to receive legal advice, but to learn how to commit a criminal offense, whether the lawyer knows this or not, there is no privilege. The reason is obvious. The purpose of the privilege is to encourage clients to have certain kinds of conversations with lawyers -- those that further the goals of the legal system. The privilege is not intended to encourage clients to use lawyers for the purpose of learning how better to commit criminal offenses. Those communications are unprotected by the privilege and a lawyer can be compelled to disclose them.

The same logic holds true in the reporter-source context. The purpose of the reporter-source privilege is to encourage sources to disclose information of legitimate public concern to reporters so they can then inform the public. There is no public policy of encouraging sources to leak information when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.

The disclosure of Valerie Plame's identity as a CIA operative by White House offcials violated federal law. In "leaking" this information, those officials were attempting to enlist reporters in a criminal act. Even under the most expansive conception of the journalist-source privilege, those sources have no privilege to do that, and thus Miller and Cooper are protecting no one but themselves. They are not Woodward and Bernstein.