Congress Watch: Recent Senate Testimony On Creating A Reporter's Privilege

During Oversight hearings before the Senate Judiciary Committee on July 9, 2008, Attorney General Michael Mukasey responded to questions and argument by Senator Arlen Specter (R-Pa) about the need for legislation creating a federal evidentiary privilege for journalists. Specter is the sponsor of S. 2035, "The Free Flow of Information Act of 2007," which would create such a privilege.

Video Of The Attorney General’s Testimony
On The Need For A Federal Journalist Privilege



Excerpt From Transcript of The Attorney General’s July 9 Testimony

Sen. Specter:
Attorney General Mukasey, what was the justification for keeping reporter Judith [Miller] in jail for 85 days when the source of the leak was known to be Deputy [Secretary of State] Richard Armitage?
Attorney General Mukasey:
As you know, I was not on duty when that case was - came to the fore and it is my own view that the case may very well be a better argument against the special counsel than it is in favor of legislation of the sort that’s been proposed. I think …
Sen. Specter:
I’m not – I’m not prepared to deal with special counsel because he’s not here. I … If I had Senator Leahy’s gavel I would have brought him in here a while ago once the case was finished. But its very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter in jail for 85 days under very unpleasant circumstances. I can attest to that first hand, I went to visit her.
Attorney General Mukasey:
There’s no such thing as jail under pleasant circumstances – it is an inherent contradiction and is something, that therefore, we use as a last resort and will continue to use as a last resort...
Sen. Specter:
Well, why did you need a resort when you know the leak? When you know who the leaker is – why go after a reporter and keep her in jail?
Attorney General Mukasey:
As I said...
Sen. Specter:
I…I know that would be better addressed to the special counsel...
Attorney General Mukasey:
It would
Sen. Specter:
Someday we may have an opportunity to do that. But right now you’re all we’ve got Attorney General Mukasey. And you’re the guy whose pushing the policy. So, I think its fair question to say to you: why maintain a policy which gives, whoever the prosecutor is, the power to do that when you know who the leaker is?
Attorney General Mukasey:
We don’t give that power to a prosecutor for precisely that reason. We require a clearance up through and including the Attorney General of the United States.
Sen. Specter:
The Attorney General of the United States is a prosecutor. My time is up and I will desist. We will revisit these issues doubtless.


New Action On Journalist's Privilege?

After a flurry of action to create a journalist's privilege in the Fall of 2007, Congress has been quiescent. On October16, 2007 the House of Representatives passed "The Free Flow of Information Act of 2007" (H.R. 2102) by a vote of 398-21. That bill would create a shield to protect a reporter from legal processes that would compel the reporter to produce documents and to provide testimony or identify confidential informants. On October 4, 2007 the Senate Judiciary Committee approved a similar measure (S. 2035) by a 15-2 vote and the matter has been pending debate on the Senate floor ever since.

These congressional measures are designed to create a new protection for journalists - one that would replace rather than supplement the current doctrine of the journalist privilege in the federal courts. As in indicated by the Attorney General in a letter to the Senate leadership on S. 2035, the Bush Administration opposes the measure, fearing that it would frustrate the investigation of terrorism.

The background and developments of these actions are addressed in the Lead Story of the January 2008 issue of the Federal Evidence Review. The article reviews the traditional scope of the journalist privilege and considers recent developments that have reformed that privilege in the federal courts as well as the recent Congressional response to the latest developments in the evolution of the journalist privilege in the federal courts.



Federal Rules of Evidence
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