United States Court of Appeals

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 8, 2004 Decided February 15, 2005 No. 04-3138 I N RE : G RAND J URY S UBPOENA , J UDITH M ILLER Consolidated with 04-3139, 04-3140 Appeals from the United States District Court for the District of Columbia (No. 04mc00407)
(No. 04mc00460)
(No. 04mc00461) Floyd Abrams argued the cause for appellants. With him on the briefs was Joel Kurtzberg. Donald J. Mulvihill entered an
appearance. Reid Alan Cox was on the brief for amicus curiae Center for Individual Freedom in support of appellants. Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were on the brief for amici curiae Magazine Publishers of America,
Inc., et al. in support of appellants. James P. Fleissner, Assistant U.S. Attorney, argued the cause and filed the brief for appellee. 2 Before: S ENTELLE , H ENDERSON and T ATEL , Circuit Judges. Opinion for the Court filed by Circuit Judge S ENTELLE . Concurring opinion filed by Circuit Judge S ENTELLE . Concurring opinion filed by Circuit Judge H ENDERSON . Opinion concurring in the judgment filed by Circuit Judge T ATEL . S ENTELLE , Circuit Judge: An investigative reporter for the New York Times; the White House correspondent for the
weekly news magazine Time; and Time, Inc., the publisher of
Time, appeal from orders of the District Court for the District of
Columbia finding all three appellants in civil contempt for
refusing to give evidence in response to grand jury subpoenas
served by Special Counsel Patrick J. Fitzgerald. Appellants
assert that the information concealed by them, specifically the
identity of confidential sources, is protected by a reporters
privilege arising from the First Amendment, or failing that, by
federal common law privilege. The District Court held that
neither the First Amendment nor the federal common law
provides protection for journalists confidential sources in the
context of a grand jury investigation. For the reasons set forth
below, we agree with the District Court that there is no First
Amendment privilege protecting the evidence sought. We
further conclude that if any such common law privilege exists,
it is not absolute, and in this case has been overcome by the
filings of the Special Counsel with the District Court. We
further conclude that other assignments of error raised by
appellants are without merit. We therefore affirm the decision
of the District Court. 3 I. Background According to the briefs and record before us, the controversy giving rise to this litigation began with a political
and news media controversy over a sixteen-word sentence in the
State of the Union Address of President George W. Bush on
January 28, 2003. In that address, President Bush stated: The
British government has learned that Saddam Hussein recently
sought significant quantities of uranium from Africa. The
ensuing public controversy focused not on the British source of
the alleged information, but rather on the accuracy of the
proposition that Saddam Hussein had sought uranium, a key
ingredient in the development of nuclear weaponry, from Africa.
Many publications on the subject followed. On July 6, 2003, the
New York Times published an op-ed piece by former
Ambassador Joseph Wilson, in which he claimed to have been
sent to Niger in 2002 by the Central Intelligence Agency
(CIA) in response to inquiries from Vice President Cheney to
investigate whether Iraq had been seeking to purchase uranium
from Niger. Wilson claimed that he had conducted the
requested investigation and reported on his return that there was
no credible evidence that any such effort had been made. On July 14, 2003, columnist Robert Novak published a column in the Chicago Sun-Times in which he asserted that the
decision to send Wilson to Niger had been made routinely
without Director George Tenets knowledge, and, most
significant to the present litigation, that two senior
administration officials told him that Wilsons selection was at
the suggestion of Wilsons wife, Valerie Plame, whom Novak
described as a CIA operative on weapons of mass destruction.
Robert Novak, The Mission to Niger, C HI . S UN -T IMES , July 14, 2003, at 31. After Novaks column was published, various
media accounts reported that other reporters had been told by
government officials that Wilsons wife worked at the CIA 4 monitoring weapons of mass destruction, and that she was
involved in her husbands selection for the mission to Niger.
One such article, published by Time.com on July 17, 2003, was
authored in part by appellant Matthew Cooper. That article
stated that: Some government officials have noted to Time in
interviews . . . that Wilsons wife, Valerie Plame, is a CIA
official who monitors the proliferation of weapons of mass
destruction . . . [and] have suggested that she was involved
in the husbands being dispatched to Niger to investigate
reports that Saddam Husseins government had sought to
purchase large quantities of uranium ore . . . . Matthew Cooper et al., A War on Wilson?, T IME . COM , at http://www.time.com/time/nation/article/0,8599,465270,00.html (Dec. 13, 2004). Other media accounts reported that two top
White House officials called at least six Washington journalists
and disclosed the identity and occupation of Wilsons wife.
Mike Allen & Dana Priest, Bush Administration is Focus of
Inquiry; CIA Agents Identity was Leaked to Media, W ASH . P OST , Sept. 28, 2003, at A1. The Department of Justice undertook an investigation into whether government employees
had violated federal law by the unauthorized disclosure of the
identity of a CIA agent. See, e.g., 50 U.S.C.

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