Surveillance

The Fox-DOJ Subpoena Fight: A Summary in Documents

By Andy Wang
Sunday, October 12, 2014, 10:03 PM

In July 2009, Mike Levine, a reporter for Fox News, broke a story about federal prosecutors secretly filing terrorism charges against a group of Somali-Americans in Minneapolis who were recruited to join Al Qaeda-linked groups in Somalia. Levine’s story was based on confidential information leaked to him by various unidentified government officials.

In January 2011, a federal subpoena landed on Mr. Levine’s desk which “commanded” him to appear, testify, and reveal his sources before a grand jury. The DOJ had begun a hunt for government leakers and Levine’s sources were in the crosshairs. Newly unsealed court documents now shed light on the legal battle waged by Levine to protect his sources and the DOJ to uncover them.

Levine eventually lost his legal battle with the DOJ. In July 2011, Judge Lamberth denied Levine’s motion to quash the subpoena. But Levine did not testify: the DOJ dropped the matter in April 2012 without explanation.

Here's a summary of the arguments in the matter.

In Levine’s declaration of facts in support of his motion to quash the subpoena, he claims that he does not recall the names of the specific sources that he used for the July 2009 story. Specifically, Levine claims that since nearly two years have passed since the publication of the story and his receipt of the subpoena, and given the numerous stories he has published and sources he has acquired since then, even if he was inclined to disclose the sources he used, he would be unable to because he simply does not remember.

In addition, though Levine admits that he may be able to narrow down the sources he used to a list of five, he claims this list would be over-inclusive in that he almost certainly did not rely on that many sources for his July 2009 story. As a result, Levine claims that any list he would reveal would necessarily be overbroad, subjecting innocent persons to unwarranted government scrutiny.

Levine presses his legal argument for his motion to quash in three stages.

Citing 28 C.F.R. § 50.10, which states that 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,” Levine argues that the DOJ investigatory interest must be balanced against the public interest in a free press. According to Levine, the DOJ fails this balancing test for several reasons. First, the government interest in the matter is minimal because most of the information in the July 2009 story was already public knowledge as a consequence of the fact that other government officials, as well as local members of the Somali community, already made public statements regarding the matter. Second, the information in the story does not warrant secrecy because the “only defendant named in[ the] July 2 news report---Isse---was already in custody and had pleaded guilty.” Third, Levine notes that he merely got “confirmation” of the information through “how his sources answered [his] questions,” as opposed to the sources affirmatively leaking him the information to begin with.

Next, Levine argues that the subpoena is unreasonable and oppressive under Fed. R. Crim. P. 17(c). Contrasting the minimal government interest in disclosure with his own paramount interest in keeping his sources confidential, Levine argues that he would suffer “significant consequences to . . . his professional capacity” should the subpoena be allowed to stand and that this would “undermine his relationships with current sources [and] prevent him from developing new sources. . .” Additionally, Levine relies heavily on United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005). In Bergeson, an attorney successfully quashed a subpoena, which required her to testify about her client’s knowledge of his court date for purposes of establishing a bail-jumping charge, because the court found it significant that testifying “would result in the destruction of her attorney-client relationship.”  Levine analogizes his relationship to his sources to that of an attorney-client relationship, further arguing that when his professional standing and relationship with sources are at stake, journalists---like attorneys---should not be forced to testify.

Finally, Levine makes a last (and perhaps ambitious) argument that the court should adopt a common law “reporter’s privilege.” Although acknowledging that such a privilege does not yet exist, Levine argues that Judge David Tatel’s concurrence in In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006), in which Judge Tatel outlines such a privilege, should be adopted by the court. Levine’s motion closes by imploring the court to adopt such a privilege.

The DOJ’s declaration of facts characterizes the leak as having a drastic and negative impact on the Minneapolis investigation. First, the DOJ notes that a meeting with a source within the Somali-American community that had previously supplied valuable information to the DOJ “was not nearly as productive as hoped” because the source was “tight-lipped” due to Levine’s story. Second, although conceding that the story only dealt with one defendant---Isse---the DOJ argues that another soon-to-be arrested defendant---Ahmed---could have inferred from the story that he too was under investigation. As a result, the DOJ had to place Ahmed under 24-hour surveillance to ensure that he did not flee prior to his expected arrest date.

The DOJ’s declaration of facts also mentions the vast lengths the DOJ went through to try to ascertain the identities of the leakers prior to subpoenaing Levine. The declaration notes that the DOJ combed through “1000 emails” and hundreds of phone calls from suspected persons, all to no avail. Additionally, the DOJ conducted numerous interviews to try to ascertain the source of the leaks. Coming up empty, the DOJ frames the issue as one where the DOJ went through all reasonable (and even unreasonable) efforts to try to ascertain the identities of the leakers before finally, without any other choice, subpoenaing Levine.

The DOJ’s response to Levine’s motion to quash starts off by arguing against the recognition of a reporter’s privilege. Noting that the court would be “breaking new ground” where no other circuit has done so, the DOJ cautions the court against making such a radical move, especially since privileges “are not lightly created, nor expansively construed, for they are in derogation of the search for truth.” DOJ’s response then proceeds to pile on the precedent. Noting that only Judge Tatel and Karen LeCraft Henderson of the D.C. Circuit have expressed the view that a reporter’s privilege may be appropriate, the response catalogues a range of other judges, cases, and circuits that have expressly rejected the adoption of such a privilege.

The DOJ’s response then proceeds to argues that even if the court were to recognize a qualified common law reporter’s privilege, such as that envisioned by Judge Tatel, such a privilege would be overcome in this particular case. First, the DOJ argues that the need for information is not diminished be either Levine’s faulty memory or the fact that he cannot specifically identity which sources he used in the story. Pointing out that the inability of a bank teller to identify a bank robber does not diminish the need to identify the bank robber, DOJ criticizes Levine’s forgetfulness defense as sidestepping the issue at hand. Additionally, the DOJ points out that even if Levine is not able to specifically identify which sources he used in the article, his list of five possible sources narrows down the possible universe of leakers. Finally, the DOJ argues that even if the information in the story was publicly available prior to its publication, the story was nonetheless unique in that for the first time, high ranking officials confirmed the information as true. Hence, the DOJ argues that the value of this “confirmation” of information is sufficiently weighty to prevent its dissemination.

Finally, the last section of the DOJ response briefly addresses the Fed. R. Crim. P. 17(c) point that Levine made in his motion to squash. The DOJ argues that Bergeson is inapposite as it involves an established privilege—the attorney-client privilege—whereas as Levine’s own motion concedes, no jurisdiction has adopted a reporter’s privilege.