Fitzgerald's assurances and the DoJ guidelines

Reprinted (and slightly edited and expanded) here is a long comment that I just left on Tom Maguire's blog, prompted by Tom's excellent observations about how Judith Miller's recent, sudden decision to testify might or might not have been affected by (a) the DoJ guidelines restricting prosecutors from willy-nilly subpoenaing of reporters and (b) any (purportedly recent) assurances given by Special Prosecutor Fitzgerald regarding the anticipated scope of his questions for her before the grand jury:

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Tom, thanks for the comments over at my place, and the link here to the (more readable) copies of the correspondence. I'll throw a few observations into the mix — speaking as a trial lawyer, albeit one whose personal experience has been almost entirely in the civil arena rather than this one.

Contra your assumption: In grand jury proceedings, and in pretrial and trial proceedings before a judge, witnesses are not generally free to simply refuse (whether politely or rudely) to answer an examining lawyer's questions. Unless an objection has been made and sustained, or there's been an assertion of a recognized privilege that's upheld, witnesses are generally required to give whatever evidence they possess. The subpoena compels not only their appearance (and perhaps their bringing of specified documents and things), but also their testimony. Refusal to answer, just like refusal to appear at all, can give rise to civil contempt of court, or potentially even criminal contempt of court. (And that's the backdoor way that a witness' assertion of privilege gets heard by a judge when the witness has refused to answer questions before a grand jury, where no judge is typically present to consider and rule upon other, more routine evidentiary-type objections like "argumentative" or "compound" or "hearsay.")

The consequence of this general rule is that in the ordinary case — one not involving a reporter as the witness — the prosecutor (or any other examining lawyer) has extremely wide discretion and authority with respect to the subjects about which he inquires. And in a grand jury, there's no judge present to hear or rule upon the sort of "relevance/fishing trip" objections that might be made in other judicial arenas. The prosecutor is therefore especially free to stray far afield from his original intentions when he invited or subpoenaed the witness to appear before the grand jury. He may indeed ask follow-up questions that lead him down all sorts of other paths (or rabbit trails). And when before grand juries, prosecutors don't face the downside of annoying a judge or regular jurors, so they have the luxury of blundering and fumbling around more in hopes of stumbling over something surprising and important.

These are some of the reasons why the prospect of giving grand jury testimony is so unsettling for any witness — once you're in there, things can normally go almost anywhere, calling time out isn't allowed, and you're without counsel or a judge to run interference for you.

However, I very much agree with your original point: The DoJ guidelines, although merely guidelines and not rules, nevertheless take our present situation out of the general rule. So long as federal prosecutors follow them, those guidelines in effect function as a pseudo-privilege.

It's entirely unclear, and I think actually quite unlikely, that Judith Miller would have gotten any more protection from any state shield statute, or from any proposed federal shield statute, or from any federal common-law privilege, than she's already gotten via the DoJ guidelines. The guidelines' protection, like that of the shield laws, has never been absolute and has always been subject to being overcome upon a proper showing (which every federal judge who's looked at this case has agreed that Mr. Fitzgerald has indeed made with respect to Ms. Miller).

But I believe you're absolutely right: Those guidelines don't just limit the circumstances under which a federal prosecutor can subpoena a press witness, but they also limit the scope of the questioning he puts to that witness once he/she is there and on the witness stand. The protection of the guidelines would be shallow indeed, a complete mockery, if they required the prosecutor to jump through hoops to serve a subpoena, but then permitted the prosecutor to ignore those hoops once the witness takes the stand!

I'm not suggesting that the DoJ guidelines are every bit as comforting, from the standpoint of the reporter witness, as a formal privilege created by a shield statute or its common-law equivalent would be. The three judges on the DC Circuit panel, while confirming that Mr. Fitzgerald had complied with the DoJ guidelines, nevertheless also agreed with the DoJ's position that they're only guidelines that restrict the DoJ, and that they do not create a "right" or a formal privilege that belongs to and may be independently asserted by any witness. The sanction for violation of the DoJ guidelines is the prospect of the federal prosecutor facing internal discipline (or simple loss of face) within the DoJ — not the exclusion of the testimony obtained in violation of the guidelines. There's less opportunity for judicial review and intervention, then, with respect to the DoJ guidelines, and the witness must rely on the ethics and professionalism of the federal prosecutor. So in requesting advance assurances as to the intended ambit of his questioning, Ms. Miller's counsel weren't acting unreasonably.

But Mr. Fitzgerald's excellent reputation — among fellow prosecutors, defense lawyers, judges, politicians of every stripe, and anyone else who follows such things — is long- and hard-earned. Unless one's willing to posit that Mr. Fitzgerald was going to engage in a bit of deliberate career-ending trampling of the DoJ regulations (by chasing down rabbit trails with a press witness as to which he hadn't yet demonstrated a compelling need and thoroughly exhausted other avenues of inquiry), then Ms. Miller has never been at any real risk of his questioning running amok, far beyond the scope of her communications with the confidential source originally under scrutiny (whom we now know for sure to be Mr. Libby).

It's therefore doubtful that Mr. Fitzgerald took any offense at being asked (and/or re-asked) for assurances. It's equivalent to being asked, "Are you following the rules of your job?" Most people don't mind saying, "Yes, I'm doing that." But it's also doubtful that Mr. Fitzgerald had any reluctance to give such assurances either now or if asked for them a year ago. Either way, he probably would reserve for himself the right to recall Ms. Miller for broader questioning; but before recalling her, he would again have to comply with the DoJ guidelines for that broader questioning. And having then done so, he would probably be happy to give further assurances that his new questions wouldn't go beyond what his new investigation had justified (on grounds of necessity and exhaustion of other means). ("Yes, I'm still following the rules of my job.")

Bottom line: I'm highly skeptical of Ms. Miller's lawyers' suggestion that Mr. Fitzgerald just recently gave up something new or important or meaningful that suddenly changed Ms. Miller's analysis and justified her decision to testify. It's quite possible that her lawyers didn't ask for the same assurances earlier, but I think it's very unlikely that they asked for and yet were denied them. Likewise, while it was prudent for Ms. Miller's and Mr. Libby's lawyers to confirm in advance that Mr. Fitzgerald wouldn't look askance at them for having direct discussions (i.e., Mr. Fitzgerald wouldn't charge anyone with obstruction or witness-tampering for that), there's no reason to believe Mr. Fitzgerald wouldn't have given that same assurance a year ago either. At this point, we know for sure that Mr. Fitzgerald wants (and has long wanted) Ms. Miller's testimony on the subjects as to which he's already complied with the DoJ guidelines. That tells us a lot, and it's quite certain. But whether he wants, or has ever wanted, or might in the future come to want, anything beyond that from Ms. Miller is really speculative, and almost certainly without any present justification.

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UPDATE (Sun Oct 2 @ 2:45pm): See also this discussion at attorney Jeralynn Merritt's TalkLeft blog. As I commented there, I agree entirely with Ms. Merritt about subpoenas and subpoenas duces tecum in general, and about the breadth of a prosecutor's questioning discretion in normal circumstances, but I think she may have given inadequate consideration to the ongoing and continuous effect of the DoJ guidelines here. And Jack Shafer's take on Ms. Miller's change in position, and the winners and losers of her fight, is also worth reading (emphasis his):

The [NYT editorial] page's Aug. 29, 2005, editorial universalized her plight: "If Judith Miller loses this fight, we all lose."

We lose? I'm sorry, but the only losers I count today are Miller and the Times editorial page, which she left holding the soiled bag of her absolutism.

Sadly, I suspect that when the NYT gets bashed from the right and the left, they don't interpret that as meaning they're probably wrong, but as meaning they're "fair," "balanced," and "intrepid." And always, always, above the rest of us. Talk about your unproductive feedback loops!