BOSTON — While the Hubbell Subpoena merited page one treatment in The Times, there was far less coverage, mostly brief mentions, in 1996 when Judge Wright forced ABC to turn over outtakes of a PrimeTime Live interview by Diane Sawyer with Susan McDougal, who was jailed for contempt of court for refusing to testify about Whitewater. When asked why ABC did not call a press conference or launch a public protest as William Morrow would later do, spokesperson Murphy said, “It's not something we want to comment on publicly.”
We know many of the legal details of this case — the only time any aspect of Starr’s rationale for subpoenaing journalists has been made public — by accident. Barry Ward, a law clerk for Judge Wright, explains that a clerk for the U.S. District Court in the eastern district of Arkansas failed to seal one of ABC’s pleadings when it was submitted to the court. Then the clerk mistakenly put the document in the press box where copies of all unsealed matters are routinely left for reporters, he explains. Soon journalists began asking about the ABC motion. Because the case was no longer secret, Ward says, a decision was made to officially unseal some of the documents.
Curiously, although it is referred to in unsealed documents, the initial brief in which ABC sought to quash Starr’s subpoena was not unsealed, Ward says. Because of the secrecy surrounding the grand jury, no one involved will say how many other documents in the battle over this subpoena remain under seal. The ABC positions cited in this article come from unsealed documents. While several documents were publicly available, the case did not receive big play.
Little Rock attorney Anderson, who represented ABC, says it appears to him that Starr sees news organizations as “arms of the prosecutor’s office.” That, he says, is precisely what U.S. Supreme Court Justice Lewis Powell feared would happen, referring to the high court’s landmark 1972 decision in Branzburg vs. Hayes that led to the articulation of journalists’ “qualified privilege” to protect their sources.
The celebrated decision involved three cases, including that of New York Times reporter Earl Caldwell, who was subpoenaed to appear before a federal grand jury to talk about his interviews with members of the radical Black Panthers. The subpoena created a furor. Caldwell had been able to get inside the Black Panther movement “at considerable personal risk,” explains Dunham. Many saw Caldwell as heroic, he says, because he was giving the public new information that had not been available about a “very scary” group.
In a controversial 5-4 vote, the Supreme Court ruled that despite legitimate concerns about reporters’ needs to protect sources, journalists have no absolute privilege to refuse to appear before grand juries.
However, in an influential concurrence, Justice Powell emphasized that the decision did not mean the government was free to use the press as an investigative arm. Journalists could challenge any subpoena, he said, and he opened the door to what has been called the journalist’s “qualified privilege” against being compelled to produce unpublished materials.
Powell urged the courts to ensure on a case-by-case basis a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” The decision remains controversial and has been cited and parsed thousands of times by both defenders and opponents of the press.
John Walsh, an attorney who represented Mobil President Tavoulareas in his libel suit against The Washington Post, says Branzburg v. Hayes “is a case in which you see what you want.” And the briefs filed by ABC, William Morrow and Starr’s office make this clear.
William Morrow argued that “the First Amendment qualified privilege applies to grand jury subpoenas where there is no showing that the member of the press subject to subpoena witnessed the crime under investigation.”
ABC argued that “the vast majority of courts have construed Branzburg, and particularly Justice Powell’s concurrence, as recognizing — rather than rejecting — a qualified First Amendment privilege for journalists against compelled disclosure of unpublished information and materials, and have established a demanding three-part test for overcoming that privilege.”
Instead of going on a fishing expedition, ABC argued, Starr was required to establish that the information in the outtakes was relevant to his probe, critical to his case and not available from other sources.
Starr responded that the three-part test did not apply, but even if it did, he had met it. He said there is every reason to believe that Susan McDougal may have said something prosecutors would find highly relevant in the full interview.
Furthermore, he argued, there is no way of obtaining exactly what she said to ABC from another source. He said ABC’s argument was weak because there was no claim anything McDougal said was off the record. “Given that ABC evidently could have shown the unedited interview to the nation without breaching any journalist-source agreement,” the independent counsel argued, “it is difficult to see why showing the unedited interview to a roomful of grand jurors would exert a chilling effect on newsgathering.”
Moreover, Starr said most of the cases ABC cited did not involve grand jury subpoenas. He concluded that ABC’s arguments for a “journalist’s privilege” have “no merit.” Rejecting a claim parallel to ABC’s, the Supreme Court has held that the First Amendment does not establish a “journalist’s privilege,” Starr argued.
Abrams responds that “there’s a good body of case law which concludes that the journalistic process itself is protected against governmental oversight. Why else would so many courts — indeed state legislatures — have protected not just confidential sources but a reporter’s notes and outtakes?”
As for the journalist’s qualified privilege, Abrams says that since the Branzburg case was decided, “most federal courts of appeals have concluded that Branzburg does provide a level of First Amendment protection for journalists,” even in some grand jury cases, and they also have endorsed a “balancing test.” However, he says, the press has won “more consistently in civil cases rather than criminal” and “probably more consistently outside the realm of the grand jury.”
“So both sides have a body of law upon which they rely,” he says.
Former Reagan Attorney General Dick Thornburgh, who recently came to the defense of Starr’s investigation, says he “rarely, if ever” subpoenaed a reporter, “and I can’t remember the ‘ever.’ ” Thornburgh, who served in the Justice Department under five presidents, says “most prosecutors are very wary for a practical reason: You don’t want to get the media mad at you.”
Former Iran-contra independent counsel Lawrence Walsh, also a Republican, says he has “never subpoenaed a reporter in my life.” He says he takes very seriously the principle that subpoenaing journalists or their records, except for very compelling reasons, would chill reporters in their duties to inform the public and would undermine freedom of the press.
Walsh was then asked to consider the Susan McDougal case: Pretend you are the independent counsel and you have just won a conviction against her. You believe she has information crucial to your investigation. You’ve given her immunity from further prosecution, and now it is time for her to tell the grand jury what she knows. She finds time to talk at length with Diane Sawyer but refuses to answer questions from the independent counsel. ABC has made no claim that any part of the interview was confidential. You want those outtakes in case she has inadvertently said something important.
Would Walsh issue a subpoena for ABC’s outtakes? “I’d want to think about it,” he said after a very long pause. “I don’t think I would subpoena, but I’d want to think about it.”
Says Abrams, “I am not saying the press should win every conflict with every independent counsel.” But, he adds, “what I take exception to is that more than one independent counsel seems to believe that the First Amendment is not part of his charter.” ABC and Morrow also argued that Starr ignored long-standing Justice Department guidelines that limit the federal government’s right to subpoena journalists. The guidelines state: “Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.” The goal, they state, is to “provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the newsgathering function.”
The guidelines, issued in 1970, go on to say that if members of the Justice Department think a journalist has relevant information, before subpoenaing the journalist or the journalist’s records, the department must try to come to some mutual agreement and make a strong case that the evidence in question cannot be obtained elsewhere.
For nearly three decades, media lawyer Goodale says, the guidelines have been very significant to reporters: There has been an understanding that independent counsels, like lawyers working for the Justice Department, should adhere to these guidelines, even though they are not legally binding.
How often do Justice Department lawyers subpoena journalists’ notes or outtakes? “Very, very rarely,” says Philip Heymann, a professor at Harvard Law School and a former deputy attorney general in the Clinton administration.
Frederick Hess, the Justice Department official responsible for reviewing requests for such subpoenas, says very few are made by federal prosecutors and few of those are approved because the department takes seriously the need for a wall between law enforcement and the press.
Hess says in fiscal year 1996, he sent 13 requests to Attorney General Janet Reno; in 1997, he sent 25 (nearly all were approved). He emphasizes that the vast majority simply asked journalists to verify that what they had quoted was correct. The subpoenas rarely involved requests for notes or outtakes and “almost never” involved requests to identify sources.
The 1994 law reauthorizing independent counsels says they must follow all Justice Department policies and guidelines unless complying “would be inconsistent with the purposes” of the independent counsel act.
ABC argued in its reply brief that Starr’s subpoena should be quashed because he was ignoring the Justice Department guidelines that for almost 30 years have severely restricted federal prosecutors’ access to journalists’ records. Furthermore, ABC argued, courts have held that if the government fails to follow the guidelines, even in grand jury proceedings, a subpoena may be quashed.
However, Judge Wright ruled in favor of Starr. Wright, who is also overseeing the Paula Jones case, addressed only one of ABC’s specific arguments about the guidelines. She said the guidelines state that they are not legally enforceable. Most significantly, Wright emphasized that one reason she was rejecting ABC’s appeal was because the guidelines say the attorney general must personally approve subpoenas to journalists. If Starr had to get Reno’s approval, she said, his independence would clearly be undermined.
Wright’s argument was stunning because she based her decision on a point that ABC didn’t even raise — much less disagree with — in its reply brief. A number of media attorneys agree that Starr’s independence would be compromised if he had to get Reno’s permission to subpoena anyone. However, Kovner says, “there are lots of other rules in the guidelines” that independent counsels should be required to follow. Wright does not address any of them.
Abrams thinks Wright “misses the point.” The core issue, which she doesn’t fully address, he says, is “whether the independent counsel has to meet any First Amendment burden before issuing a subpoena. And ABC’s argument that the existence of the attorney general’s guidelines indicates the force of their First Amendment argument is a very serious, powerful argument to which her opinion simply doesn’t respond.”
Kovner says for Wright to effectively declare that the guidelines do not apply to Starr means the independent counsel is “above the law.”
Sen. Levin, a prime mover behind the independent counsel act over the years, says, “The independent counsel is supposed to abide by the same guidelines as every other federal prosecutor up to the point of seeking approval by the attorney general. If Kenneth Starr does not abide by the Justice Department guidelines, he would be violating the intent of the law.”
Many lawyers have wondered aloud why ABC did not appeal Wright’s decision. Her finding that the Justice Department guidelines do not apply to Starr seems especially vulnerable to a legal challenge. ABC spokesperson Eileen Murphy says the network was concerned about appealing to the Eighth Circuit, which some worry is not media friendly. If the network had lost, she says, it would have set a bad legal precedent.
But other factors may have played a role. Former New York Times general counsel Goodale points out that the networks are now owned by large corporations that have put significant pressure on news operations to increase their profit margins. Pressing First Amendment rights in the courts can be very expensive.
Kathleen A. Kirby, who submitted a brief supporting ABC for the Radio-Television News Directors Association, says, “I think ABC weighed the monetary issue and said it wasn’t worth it.”
Former NBC News President Michael Gartner, who made his journalistic reputation in newspapers, says television is “run by guys who came up through marketing and sales” and who aren’t “inoculated” with reverence for the First Amendment the way many print executives are.
Kovner, William Morrow’s attorney, says he had a much stronger case and better options than ABC. He says Starr’s subpoena to the publisher, which was more serious because it called for far more material than outtakes from one interview, was served in New York, a better climate for media interests.
In his motion to quash the subpoena, Kovner argued that the Justice Department guidelines applied in this case and that the Second Circuit, where he had forced Starr to respond, “has long held that journalists’ and authors’ unpublished notes and drafts are protected from compelled disclosure by qualified privilege under the First Amendment.” He also asserted that the qualified privilege applies to “non-confidential as well as confidential sources and information.”
After Starr backed off, a New York Times editorial gave the prosecutor the back of the hand. “Whether Mr. Starr has been sufficiently chastened by the dispute is unclear…. Meanwhile, having waged and won an important First Amendment battle, it is hard to begrudge Morrow all the free publicity the fight has garnered for Mr. Hubbell’s literary efforts.”