No Privilege in Plame Investigation

The DC Circuit has rejected the privilege claims of four reporters who declined to tell a special prosecutor which White House staffers "called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife.” Mike Allen & Dana Priest, Bush Administration is Focus of Inquiry; CIA Agent’s Identity was Leaked to Media, Washington Post, 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. § 421 (criminalizing, inter alia, disclosure of the identity of a covert agent by anyone having had authorized access to classified information).

Judge Sentelle wrote the majority opinion finding:

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.

Sentelle's formulation suggests that the Press enjoys no privilege beyond that of ordinary citizens. That hint prompted each judge to write separately addressing the existence, and scope, of any special media privilege . Judge Tatel's concurrence flatly disagreed with the majority's implied rejection of press privilege:

I believe that the consensus of forty-nine states plus the District of Columbia—and even the Department 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.

Still to be decided: are blogs the press?

More:

As explained by Orin Kerr at the Volokh Conspiracy, Sentelle's seperate opinion -- rejecting any special media privilege -- discusses the inability to distinguish blogs from "the press," while Judge Tatel's concurrence insists application of a press privilege could be adjudicated case-by-case.