In Re Grand Jury Subpoena, Miller

concurring in the judgment.

This case involves a clash between two truth-seeking institutions: the grand jury and the press. On the one hand, the grand jury, a body “deeply rooted in Anglo-American history” and guaranteed by the Fifth Amendment, see United States v. Calandra, 414 U.S. 338, 342-43, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), holds “broad powers” to collect evidence through judicially enforceable subpoenas. See United States v. Sells Eng’g, Inc., 463 U.S. 418, 423-24, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). “Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.” Id. at 424, 103 S.Ct. 3133. On the other hand, the press, shielded by the First Amendment, “has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences.” Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Using language we have quoted with approval, see Carey v. Hume, 492 F.2d 631, 634-35 (D.C.Cir.1974), the Second Circuit aptly described this conflict between press freedom and the rule of law: “Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.” Garland v. Torre, 259 F.2d 545, 548 (2d Cir.1958).

Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters’ testimony, I join the judgment of the court. I write separately, however, because I find Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia — and even the De*36partment of Justice — would require us to protect reporters’ sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy.

I.

Although I join the court’s rejection of appellants’ First Amendment argument, I am uncertain that Branzburg offers “no' support” for a constitutional reporter privilege in the grand jury context. See majority op. at 970-71. To be sure, Branzburg upheld the enforcement of subpoenas seeking confidential source information, including notes and testimony about interviews and observations at a militant group’s headquarters. See 408 U.S. at 672-77, 92 S.Ct. 2646. Yet even the Branzburg majority declared that “news gathering is not without its First Amendment protections,” id. at 707, 92 S.Ct. 2646, a phrase we have inteipreted (albeit in dictum) to “indicate! ] that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify,” Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981). Branzburg’s caveat, placed in a discussion of “[ojfficial harassment of the press” and “grand jury investigations ... instituted or conducted other than in good faith,” Branzburg, 408 U.S. at 707-08, 92 S.Ct. 2646, seems to refer only to journalists’ power to quash “unreasonable or oppressive” subpoenas, see Fed.R.Crim.P. 17(c)(2). But given that any witness — journalist or otherwise — may challenge such a subpoena, the majority must have meant, at the very least, that the First Amendment demands a broader notion of “harassment” for journalists than for other witnesses. Reinforcing that view, the majority added, “We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” Branzburg, 408 U.S. at 708, 92 S.Ct. 2646. That prediction, too, would appear meaningless if no First Amendment safeguards existed for subpoenaed reporters.

Then there is Justice Powell’s “enigmatic concurring opinion.” Id. at 725, 92 S.Ct. 2686 (Stewart, J., dissenting). Though providing the majority’s essential fifth vote, he wrote separately to outline a “case-by-case” approach, see id. at 710, 92 S.Ct. 2686 (Powell, J., concurring), that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims. Emphasizing “the limited nature of the Court’s holding,” id. at 709, 92 S.Ct. 2686, he wrote:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Id. at 710, 92 S.Ct. 2686. “In short,” Justice Powell concluded, “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.” Id. Even more than the majority opinion, this language places limits on grand jury authority to demand information about source identities — though, again, the precise extent of those limits seems unclear.

Given Branzburg’s internal confusion and the “obvious First Amendment problems” involved in “[c]ompelling a reporter to disclose the identity of a confidential source,” Zerilli, 656 F.2d at 710, it is hardly surprising that lower courts have, as Chief Judge Hogan put it, “chipped away at the holding of Branzburg,” finding constitutional protections for reporters in “various factual scenarios different than those presented in Branzburg.” In re Special Counsel Investigation, 332 *37F.Supp.2d 26, 31 (D.D.C.2004). We ourselves have affirmed the denial of a criminal defense subpoena on grounds that the defendant “failed to carry his burden” of “demonstratfing] that the reporters’ qualified privilege should be overcome.” United States v. Ahn, 231 F.3d 26, 37 (D.C.Cir.2000). In civil litigation, moreover, we have held that the First Amendment requires courts to “look to the facts on a case-by-case basis in the course of weighing the need for the testimony in question against the claims of the newsman that the public’s right to know is impaired.” Carey, 492 F.2d at 636; see also Zerilli, 656 F.2d at 707 (affirming the denial of a motion to compel discovery because “in this case the First Amendment interest in protecting a news reporter’s sources outweighs the interest in compelled disclosure”). Other circuits have reached similar conclusions. See, e.g., United States v. LaRouche Campaign, 841 F.2d 1176, 1180-81 (1st Cir.1988) (acknowledging First Amendment limits on criminal defense subpoenas directed at news organizations); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.1983) (extending a First Amendment reporter privilege developed in civil cases to a criminal defense subpoena); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 593-99 (1st Cir.1980) (describing First Amendment limits on discovery of reporters’ sources in civil litigation); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir.1977) (indicating that a qualified newsgathering privilege “is no longer in doubt”); but see In re Grand Jury Proceedings, 810 F.2d 580, 584-85 (6th Cir.1987) (rejecting claims of First Amendment privilege in grand jury proceedings).

In this case, however, our hands are tied for two independent reasons. First, although this circuit has limited Branzburg in other contexts, see Zerilli, 656 F.2d at 707; Carey, 492 F.2d at 636; Ahn, 231 F.3d at 37, with respect to criminal investigations we have twice construed that decision broadly. In Reporters Committee for Freedom of the Press v. AT & T, 593 F.2d 1030 (D.C.Cir.1978), which addressed a First Amendment challenge regarding access to journalists’ phone records and describing Branzburg as foreclosing “case-by-case consideration,” we declared, “Good faith investigation interests always override a journalist’s interest in protecting his source.” Id. at 1049 (emphasis added). Echoing this broad view, we have also described Branzburg as “squarely rejecting]” a claim to “general immunity, qualified or otherwise, from grand jury questioning.” See In re Possible Violations of 18 U.S.C. 371, 6pi, 1503, 564 F.2d 567, 571 (D.C.Cir.1977). In this circuit, then, absent any indication of bad faith, I see no grounds for a First Amendment challenge to the subpoenas at issue here.

Second, although Branzburg involved militants and drug dealers rather than government leakers, the factual parallels between that case and this one preclude us from quashing the subpoenas on constitutional grounds. See majority op. at 969. If, as Branzburg concludes, the First Amendment permits compulsion of reporters’ testimony about individuals manufacturing drugs or plotting against the government, see 408 U.S. at 667-69, 675-77, 92 S.Ct. 2646, all information the government could have obtained from an undercover investigation of its own, the ease for a constitutional privilege appears weak indeed with respect to leaks, which in all likelihood will be extremely difficult to prove without the reporter’s aid. Thus, if Branzburg is to be limited or distinguished in the circumstances of this case, we must leave that task to the Supreme Court.

II.

But Branzburg is not the end of the story. In 1975 — three years after Branz*38burg — Congress enacted Rule 501 of the Federal Rules of Evidence, authorizing federal courts to develop evidentiary privileges in federal question cases according to “the principles of the common law as they may be interpreted ... in the light of reason and experience.” Fed.R.Evid. 501; see also Pub.L. No. 93-595, 88 Stat. 1926 (1975). Given Branzburg’s instruction that “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned,” 408 U.S. at 706, 92 S.Ct. 2646, Rule 501’s delegation of congressional authority requires that we look anew at the “necess[ity] and desirability]” of the reporter privilege — though from a common law perspective.

.

Under Rule 501, that common lawmaking obligation exists whether or not, absent the rule’s delegation, Congress would be “the more appropriate institution to reconcile the competing interests ... that inform any reporter’s privilege to withhold relevant information from a bona fide grand jury.” Sep. op. at 983-84 (Henderson, J., concurring) (citing Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990)); but see sep. op. at 978-79 (Sentelle, J., concurring) (observing that even before Rule 501, case law provided federal courts with “precisely the same authority” to recognize common law privileges) (citing Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617 (1934)); Univ. of Pa., 493 U.S. at 189, 110 S.Ct. 577 (declining to recognize a privilege “where it appears that Congress has considered the relevant competing concerns but has not provided the piivilege itself’). As the Supreme Court has explained, “Rule 501 was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them.” United States v. Weber Aircraft Corp., 465 U.S. 792, 803 n. 25, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). Thus, subject of course to congressional override, we must assess the arguments for and against the claimed privilege, just as the Supreme Court has done in eases recognizing common law privileges since 1975. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (psychotherapist-patient); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (attorney-client); Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (confidential marital communications).

In this case, just as Jaffee v. Redmond recognized a common law psychotherapist privilege based on “the uniform judgment of the States,” 518 U.S. at 14, 116 S.Ct. 1923, I believe that “reason and experience” dictate a privilege for reporters’ confidential sources — albeit a qualified one. Guided by Jaffee’s reasoning, I reach this conclusion by considering first whether “reason and experience” justify recognizing a privilege at all, and if so whether the privilege should be qualified or absolute and whether it should cover the communications at issue in this case.

Before undertaking that analysis, I think it helpful to explain why, in my view, we should not, as would Judge Henderson, short-circuit Jaffee's framework and decide whether the special counsel may overcome the reporter privilege without ever reaching the issue of whether the privilege in fact exists. See sep. op. at 982 (Henderson, J., concurring). Unless we conclude, as does Judge Sentelle, see sep. op. at 977 (Sentelle, J., concurring), and as did the district court, see In re Special Counsel Investigation, 338 F.Supp.2d 16, 18-19 (D.D.C.2004), that no privilege exists, we cannot resolve this case without adopting some standard. Judge Henderson criticizes my approach, but she *39never indicates what standard she would apply, except to state that “the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.” See sep. op. at 982 (Henderson, J., concurring). To reach even that conclusion, however, one must explain why federal common law cannot support any higher “hurdle,” such as an absolute privilege for source identities, which exists in the District of Columbia and several states, see, e.g., D.C.Code Ann. §§ 16-4702, 16-4703(b); 42 Pa. Cons.Stat. § 5942; Ala. Code § 12-21-142, or a privilege that applies unless non-disclosure “will cause a miscarriage of justice,” N.D. Cent.Code § 31-01-06.2; see also Minn.Stat. § 595.024; N.M. Stat. Ann. § 38-6-7. Without ruling out all such plausible alternatives that would allow the reporters to prevail, how could one know that they cannot prevail here? And without selecting some other test based on Jaffee and Rule 501, how could one know that no such alternatives are plausible?

Because the Jaffee analysis is thus essential to resolving this case (assuming a privilege exists), our frequent practice of avoiding non-essential issues is inapplicable. To be sure, declining to resolve waived issues, see, e.g., Carney v. Am. Univ., 151 F.3d 1090, 1094-95 (D.C.Cir.1998), disposing of proeedurally defective claims without reaching the merits, see, e.g., Jackson v. District of Columbia, 254 F.3d 262, 264, 270-71 (D.C.Cir.2001); cf. Massachusetts v. U.S. Dep’t of Transp., 93 F.3d 890, 891 (D.C.Cir.1996) (assuming deferential review because even under that standard agency action was unreasonable), and expressing no view on one element of a claim because another element is clearly defective, see, e.g., Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1142 (D.C.Cir.2002); Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1308 (D.C.Cir.1997); Littlewolf v. Lujan, 877 F.2d 1058, 1060 (D.C.Cir.1989), may well represent “patience in judicial decision-making,” sep. op. at 982 (Henderson, J., concurring). Patience, however, cannot justify “declining ... to define [the disputed privilege’s] contours,” see id. at 986, for that is the dispositive issue in this case.

Accordingly, given that we must apply some test to the government’s showing, if we simply assume the privilege exists but our assumption is wrong, then we will have reached out to establish a framework for a non-existent claim — an undertaking hardly consistent with principles of judicial restraint. Indeed, our decision would establish a precedent, potentially binding on future panels, regarding the scope of the assumed privilege, even though resolving that question was entirely unnecessary. Therefore, I think it imperative to decide as a threshold matter whether the privilege exists, turning only afterwards to the privilege’s specific contours.

In this case, moreover, the issue of the privilege’s existence is fully briefed, and resolving it definitively will provide critical guidance in similar situations in the future. This is not the only case to raise reporter privilege issues in D.C. federal courts in recent years. See Lee v. U.S. Dep’t of Justice, 327 F.Supp.2d 26 (D.D.C.2004); Lee v. U.S. Dep’t of Justice, 287 F.Supp.2d 15 (D.D.C.2003). And given the many leaks that no doubt occur in this city every day, it would be naive to suppose that it will be the last. For the sake of reporters and sources whom such litigation may ensnare, we should take this opportunity to clarify the rules governing their relationship.

Thus, I agree with Judge Sentelle that “the question of the existence of such privilege vel non is logically anterior to the quantum of proof necessary to overcome it.” Sep. op. at 977 (Sentelle, J., concurring). Without resolving the first ques*40tion, we cannot and should not decide the second.

Existence of the Privilege

Under Jaffee, the common law analysis starts with the interests that call for recognizing a privilege. See 518 U.S. at 11, 116 S.Ct. 1923. If, as the Supreme Court held there, “[t]he mental health of our citizenry is a public good of transcendent importance,” id. — one that trumps the “fundamental maxim that the. public has a right to every man’s evidence,” id. at 9, 116 S.Ct. 1923 (internal quotation marks and ellipsis omitted) — then surely press freedom is no less important, given journalism’s vital role in our democracy. Indeed, while the Jaffee dissenters questioned psychotherapy’s “indispensable role in the maintenance of the citizenry’s mental health,” see id. at 22, 116 S.Ct. 1923 (Scalia, J., dissenting), the First Amendment’s express protection for “freedom ... of the press” forecloses any debate about that institution’s “important role in the discussion of public affairs,” Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Mills, 384 U.S. at 218-19, 86 S.Ct. 1434).

Like psychotherapists, as well as attorneys and spouses, all of whom enjoy privileges under Rule 501, see, e.g., Jaffee, 518 U.S. at 18, 116 S.Ct. 1923 (psychotherapists); Upjohn Co., 449 U.S. at 389, 101 S.Ct. 677 (attorneys); SEC v. Lavin, 111 F.3d 921, 925 (D.C.Cir.1997) (spouses), reporters “depend[ ] upon an atmosphere of confidence and trust,” Jaffee, 518 U.S. at 10, 116 S.Ct. 1923. If litigants and investigators could easily discover journalists’ sources, the press’s truth-seeking function would be severely impaired. Reporters could reprint government statements, but not ferret out underlying disagreements among officials; they could cover public governmental actions, but would have great difficulty getting potential whistle-blowers to talk about government misdeeds; they could report arrest statistics, but not garner first-hand information about the criminal underworld. Such valuable endeavors would be all but impossible, for just as mental patients who fear “embarrassment or disgrace,” id., will “surely be chilled” in seeking therapy, id. at 12, 116 S.Ct. 1923, so will sources who fear identification avoid revealing information that could get them in trouble.

Because of these chilling effects, “[without a privilege, much of the desirable evidence to which litigants ... seek access ... is unlikely to come into being.” Id. Consequently, as with other privileges, “the likely evidentiary benefit that would result from the denial of the privilege is modest.” Id. At the same time, although suppression of some leaks is surely desirable (a point to which I shall return), the public harm that would flow from undermining all source relationships would be immense. For example, appellant Judith Miller tells us that her Pulitzer Prizewinning articles on Osama bin Laden’s terrorist network relied on “information received from confidential sources at the highest levels of our government.” (Miller Aff. ¶ 10, Appellant’s App. at 169.) Likewise, appellant Matthew Cooper maintains that his reports for “Time’s four million-plus readers about White House policy in Iraq, the chances of passage of major legislation such as Budget and Energy Bills, and the Clinton White House” would have been impossible without confidentiality. (Cooper Aff. ¶ 21, Appellant’s App. at 286.) Insofar as such stories exemplify the press’s role “as a constitutionally chosen means for. keeping officials elected by the *41people responsible to all the people whom they were elected to serve,” Mills, 384 U.S. at 219, 86 S.Ct. 1434, “reason and experience” support protecting newsgathering methods crucial to their genesis. Acknowledging as much in Zerilli, we emphasized that “[compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability” and weaken “a vital source of information,” leaving citizens “far less able to make informed political, social, and economic choices.” 656 F.2d at 711.

It is true, as the special counsel observes, that apart from affidavits and citations to two articles in their reply brief, the reporters present no empirical evidence that denial of the privilege “will have a significant impact on the free flow of information protected by the First Amendment.” Appellee’s Br. at 47. But the Supreme Court has never required proponents of a privilege to adduce scientific studies demonstrating the privilege’s benefits. Rather, as the Jaffee dissenters pointed out, the empirical question— “[h]ow likely is it that a person will be deterred from seeking psychological counseling, or from being completely truthful in the course of such counseling; because of fear of later disclosure in litigation?” — was one “[t]he Court [did] not attempt to answer.” 518 U.S. at 22-23, 116 S.Ct. 1923 (Scalia, J., dissenting). Instead, following the wise precept that common sense need not be “the mere handmaiden of social science data or expert testimonials,” Amatel v. Reno, 156 F.3d 192, 199 (D.C.Cir.1998), Jaffee relied on the traditional common law process: it examined the logical prerequisites of the confidential relationship, taking into account the policy and experience of parallel jurisdictions. See Jaffee, 518 U.S. at 10, 116 S.Ct. 1923 (reasoning that given the need for “frank and complete disclosure of facts, emotions, memories, and fears” in psychotherapy, “the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment”).

Likewise, in Trammel v. United States, while justifying the privilege against adverse spousal testimony in terms of “marital harmony,” 445 U.S. at 44-45, 53, 100 S.Ct. 906, the Court allowed waiver by the testifying spouse based not on divorce statistics or psychological studies, but rather on the commonsense supposition that “[w]hen one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — their relationship is almost certainly in disrepair,” id. at 52, 100 S.Ct. 906. And in Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998), though finding the “empirical information ... scant and inconclusive,” id. at 410, 118 S.Ct. 2081, the Court held that the attorney-client privilege survives the client’s death because “[k]nowing that communications' will remain confidential even after death encourages the client to communicate fully and frankly with counsel,”