Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: For the first time, the US Supreme Court has adopted
Speaker 1: a code of conduct. It's a response to months of
Speaker 1: pressure after a stream of ethics controversies that have undercut
Speaker 1: the Court's public standing and showe new light on the
Speaker 1: Justice's friendships and financial dealings. The revelations include reports that
Speaker 1: Justice Clarence Thomas got lavish vacations, private jet flights, and
Speaker 1: other gifts funded by Republican megadoner Harlan Crowe. But the
Speaker 1: code won't necessarily mean significant changes in how the nine
Speaker 1: Justices conduct themselves. The rules are mostly a codification of
Speaker 1: existing principles, and the Justices stop short of creating a
Speaker 1: system for the public to lodge complaints or for an
Speaker 1: outside review of alleged violations. The rules are mostly a
Speaker 1: codification of existing rules that apply to the rest of
Speaker 1: the federal judiciary, but without the type of complaint system
Speaker 1: that applies to other federal judges. Joining me is an
Speaker 1: expert on the judiciary, Carl Tobias, professor at the University
Speaker 1: of Richmond Law School. Carl, what's your initial reaction to
Speaker 1: this code of conduct? Well?
Speaker 2: I think it pretty much applies the same ethics rules
Speaker 2: to the Supreme Court, with some limited exceptions, and basically
Speaker 2: adopts twenty at USC four fifty five, which applies to
Speaker 2: all lower federal court judges, magistrate judges, district judges, appeals
Speaker 2: court judges.
Speaker 1: Is there anything special in there?
Speaker 2: Like?
Speaker 1: Would anything there tell you if Justice Thomas has to
Speaker 1: recuse himself in a case involving let's say, Harlan Crow.
Speaker 2: Yes, I mean, I think there are provisions in there.
Speaker 2: If a justice has knowledge of a financial interests of
Speaker 2: someone like Crow, then I think the Justice would need
Speaker 2: to seriously consider recusing. But that doesn't change what we've
Speaker 2: had before. But I do think that's relatively clear from
Speaker 2: what's there.
Speaker 1: Didn't the justices always say that they followed this judicial code?
Speaker 2: Yes? Yes, But I mean I think reasonable people could
Speaker 2: differ about whether they actually did. I think it's valuable
Speaker 2: in order to be able to say they are subject
Speaker 2: to it. Now have signed on to this, but it
Speaker 2: will be difficult to enforce in certain situations. I assume
Speaker 2: if other people don't know of some kind of conflict,
Speaker 2: and so it's still going to be dependent substantially on
Speaker 2: the justices themselves and recognizing potential conflicts and then either
Speaker 2: decided to recuse or causing with their colleagues and deciding
Speaker 2: whether they should or should not.
Speaker 1: So there's no enforcement mechanism. Say a group says, oh,
Speaker 1: I think that Justice Alito shouldn't sit or shouldn't have
Speaker 1: sat on that tax case where one of the lawyers
Speaker 1: involved interviewed him for the Wall Street Journal. Is there
Speaker 1: any mechanism to enforce that.
Speaker 2: It doesn't seem like it, though. I suppose someone could
Speaker 2: try to petition the justices on something that they thought
Speaker 2: was irregular or inappropriate, and always lawyers have been able
Speaker 2: to suggest refusal, right, And I don't think that changes.
Speaker 2: Then the justice can respond to that, and they do,
Speaker 2: and certainly Justice Kalia did on many occasions, and others
Speaker 2: have to.
Speaker 1: Does it seem like this really moves the ball forward?
Speaker 1: Does it really change things?
Speaker 2: Not substantially? No, I don't think so. But we can't
Speaker 2: really know because we don't know what has gone on
Speaker 2: internally in the court among the justices. Some of that's
Speaker 2: just not public.
Speaker 1: What do you mean by that? What could have gone on?
Speaker 2: Well, any justice could say to the other justice, I
Speaker 2: think I have a conflict, let's talk about it, or
Speaker 2: you know, I can't decide what to do in this situation,
Speaker 2: and they may have thrashed it out. We just don't
Speaker 2: know about that.
Speaker 1: With this code, it leaves it up to the individual justice,
Speaker 1: for example, to decide whether to recuse himself or herself.
Speaker 2: I think basically, yes, that doesn't preclude the fact that
Speaker 2: a well intentioned justice would bring it up with his
Speaker 2: or her colleagues and hopefully that would happen seek guidance
Speaker 2: from them. Perhaps.
Speaker 1: Do you think it was the public pressure or the
Speaker 1: pressure from Senate Democrats? What do you think it was
Speaker 1: that got them to finally do this? Well?
Speaker 2: I think discretion was the better part of valor, and
Speaker 2: I think they realized that it wasn't going to calm
Speaker 2: down until something happened, and so they needed to act.
Speaker 2: And I think you know that that is a good
Speaker 2: thing in some ways, because there was going to be
Speaker 2: a huge subpoena fight already has been in Judiciary committee,
Speaker 2: and I don't know that that was going to really
Speaker 2: help that much. But again, it doesn't have an enforcement
Speaker 2: mechanism you suggests, and so we'll have to see how
Speaker 2: it works in practice. May difficult to detect.
Speaker 1: Yes, the Supreme Court is not what you'd call a
Speaker 1: transparent institution. Well, let's turn now to judicial confirmations. And
Speaker 1: President Joe Biden reached a milestone last week. He secured
Speaker 1: as one hundred and fiftieth federal judicial appointment with a
Speaker 1: record breaking number of women named to the bench.
Speaker 2: Well, the milestone is important of one hundred and fifty
Speaker 2: and now actually it's up to one hundred and fifty
Speaker 2: three and will be higher today after judge and at
Speaker 2: the Alba of the Eastern District of California is confirmed
Speaker 2: to the Ninth Circuit. So in that one hundred and
Speaker 2: fifty or so, one hundred of those appointees are women,
Speaker 2: approximately one hundred are ethnic minorities, in fifty or so
Speaker 2: are black appointees. So he's broken all kinds of records
Speaker 2: in turn of ethnic minority appointments. And what is also
Speaker 2: very important is experiential diversity. So you're seeing a number
Speaker 2: of federal public defenders, state public defenders, as well as
Speaker 2: civil rights attorneys, people who've worked for the ACLU, legal
Speaker 2: aid lawyers in the mix. And all of that is
Speaker 2: what Biden pledged to do and has kept his word
Speaker 2: and is continuing to do that with new nominees and
Speaker 2: new appointees.
Speaker 1: Confirmations have slowed, haven't they compared to earlier in his tenure?
Speaker 2: A little bit? Yes, And part of the issue is
Speaker 2: nominations because there are not very many vacancies in states
Speaker 2: represented by two senators, and most of them now are
Speaker 2: in states where at least one senator is a Republican.
Speaker 2: But there's been some breakthroughs. For example, there were four
Speaker 2: vacancies in Florida last week. All four people were nominated,
Speaker 2: three were women of color, and three were magistrate judges.
Speaker 2: And I think they'll easily be confirmed and hopefully relatively soon.
Speaker 2: So that's a promising sign. But there are other red states.
Speaker 2: For example, Texas, there're seven vacancies there, I think almost
Speaker 2: all emergencies, and Missouri has Eastern District has three emergencies
Speaker 2: and no nominees, and so we'll be looking at those.
Speaker 2: There two in the Northern District of Indiana. The Indiana
Speaker 2: Senators have been very good about moving two people to
Speaker 2: the appeals courts and filling district vacancies.
Speaker 1: Do you think you'll be able to match former President
Speaker 1: Donald Trump's two hundred and thirty four judicial nominations, especially
Speaker 1: because it seems like the Democrats' control of the Senate
Speaker 1: is in jeopardy.
Speaker 2: Well, I think so, because if you look at the
Speaker 2: comparable date in twenty nineteen, Trump had confirmed forty six
Speaker 2: as opposed to Biden's thirty seven appellate conferenes. But Biden
Speaker 2: is ahead on district nominees one hundred and sixteen to
Speaker 2: one hundred and twelve. And so, depending of course on
Speaker 2: the shutdown if that comes, and what else happens this
Speaker 2: year and next year, which of course is an election
Speaker 2: year when it may slow somewhat, we'll see, but I
Speaker 2: think he's on track and could do that, but needs
Speaker 2: to have a few more nominees, and the nominees to
Speaker 2: be in sync with the Judiciary Committee shared. Durbin has
Speaker 2: said he would have hearings every two weeks the Senate
Speaker 2: is in session, and of course he has the holidays
Speaker 2: coming up, but when they come back in January, I
Speaker 2: think they will have more nominees, and there's still many
Speaker 2: on the floor, and so I think he is on
Speaker 2: track to surpass what Trump did. But we'll see what happened.
Speaker 1: Coming up next. Those gag orders on Donald Trump. This
Speaker 1: is Bloomberg. I've been talking professor Carl Tobias at the
Speaker 1: University of Richmond Law School about judicial appointments. Carl, we've
Speaker 1: spoken before about how Republicans and Republican voters have always
Speaker 1: seemed to be more concerned about judicial appointments and Supreme
Speaker 1: Court appointments than Democrats. Has that changed in any respect
Speaker 1: in light of recent Supreme Court decisions and lower court
Speaker 1: decisions that don't follow precedent.
Speaker 2: Well, I think Chair Durbin and the President and all
Speaker 2: the Democratic members of the Senate Judiciary Committee are painfully
Speaker 2: aware of that history, and so rules about blue slips
Speaker 2: for circuit nominees they've retained the ones that the Republicans
Speaker 2: used and to their benefit in terms of confirming people.
Speaker 2: And Durbin has expressly said in committee publicly that we're
Speaker 2: not going to have different rules for Democrats and Republicans.
Speaker 2: So I think Democrats have learned their lesson to the
Speaker 2: extent that there were different standards, different requirements, and so
Speaker 2: now I think Democrats are pushing just as aggressively as
Speaker 2: Republicans did, But of course they're getting pushed back from
Speaker 2: a number of GOP senators too, who are not always
Speaker 2: in sync with the nominees of the president.
Speaker 1: Do you think that Democratic voters are recognizing the importance
Speaker 1: of the judiciary when they cast their ballots.
Speaker 2: I think so. That's certainly what we saw in Virginia,
Speaker 2: and I'm in the middle of that. And so the
Speaker 2: abortion issue was I think the driver in the Democrats
Speaker 2: retaining this Senate in Virginia and then also regaining a
Speaker 2: House majority here. And you saw similar things, and for example,
Speaker 2: even red states like Ohio with the abortion issue on
Speaker 2: the ballot, and a number of other states around the country.
Speaker 2: So I think yes, And I think going to twenty
Speaker 2: twenty four, with the chaos in the House of Representatives
Speaker 2: and with the abortion issue and other hot button issues,
Speaker 2: that Democrats are doing relatively well. And especially people are
Speaker 2: cognizant of the judges because of the pushback on overturning
Speaker 2: Rod versus Way.
Speaker 1: Speaking of judges and being cognizant of the judges, one
Speaker 1: judge who's been in the news a great deal is
Speaker 1: the New York trial judge Arthur and Gorin because of
Speaker 1: the problems he's had with former President Trump in the
Speaker 1: New York Attorney General civil fraud trial against him. So
Speaker 1: already the judge has fined Trump twice for violent a
Speaker 1: gag order on him making any kind of comments about
Speaker 1: court staff. How often do you hear about gag orders
Speaker 1: like that?
Speaker 2: Well, not very often, fortunately in the past. But I
Speaker 2: think in the short term we're likely to hear about
Speaker 2: it more. And I think the judges are perfectly within
Speaker 2: their rights to take measures to protect themselves and protect
Speaker 2: their staff, because you do not want those court employees,
Speaker 2: much less jurors or witnesses, to feel that their safety
Speaker 2: is threatened by litigants in the court. You just can't
Speaker 2: have that kind of situation.
Speaker 1: When Trump was on the stand last week, the judge
Speaker 1: was just pushed to the limit. He said things like,
Speaker 1: can't you control your client? You can say whatever you
Speaker 1: want about me, but just answer the question. I mean,
Speaker 1: he was just uncontrollable. Now, this is a trial where
Speaker 1: the judge is going to make the decision. But what
Speaker 1: happens if Jump decides to take the stand in a
Speaker 1: criminal trial. There'll be a jury in that case, And
Speaker 1: how does a judge keep him under control.
Speaker 2: Well, I think it's difficult, but I think you're right.
Speaker 2: The New York judge was a model of restraint and
Speaker 2: pleaded with the lawyers to try to bring their client
Speaker 2: under control. And so I think that is the best
Speaker 2: way to proceed, and I think he showed substantial patience
Speaker 2: in the face of that. And that's what you want
Speaker 2: a judge to do, is to be restrained, but to
Speaker 2: keep the process moving along and to protect court personnel, witnesses,
Speaker 2: jurors in that situation. And that's one reason for the
Speaker 2: gag orders and then the penalties. Judges have broad discretion
Speaker 2: to sanction litigants who disobey any kind of order that
Speaker 2: the judge issues.
Speaker 1: I'm wondering is this a tactic because the attorneys have
Speaker 1: also have been very aggressive in that courtroom and very
Speaker 1: critical of the judge to the judge's face.
Speaker 2: So is that a.
Speaker 1: Tactic for an appellate issue? But I mean, what kind
Speaker 1: of an appellate issue would it be? The judge lost
Speaker 1: his temper? Is that an appellate issue?
Speaker 2: Doesn't seem like it. But the other thing, of course,
Speaker 2: is that lawyers are officers of the court, and the
Speaker 2: court can ask them to try to keep conduct appropriate
Speaker 2: for a courtroom, and they can do that in any
Speaker 2: number of ways. But I don't think an appellate court
Speaker 2: is going to have much patience with arguments based on
Speaker 2: the fact that the judge overreached, especially if it's extreme
Speaker 2: behavior on the part of the client or of the attorney.
Speaker 1: The judge in DC, Judge Tanya Chuckin also issued a
Speaker 1: gag order. None of these gag orders prevent Trump from
Speaker 1: talking about the judges in the case, but this was
Speaker 1: to prevent him from t talking about the witnesses, the
Speaker 1: special counsel, and his staff, and that's being criticized as
Speaker 1: being unconstitutionally vague. The problem is that Donald Trump is
Speaker 1: running for president, So even in the New York case,
Speaker 1: the lawyers contended that he could say whatever he wants
Speaker 1: because he's running for president.
Speaker 2: Well, Tanya Jacobe, in Your Own Publication wrote a piece
Speaker 2: responding to that and criticizing the view that it was
Speaker 2: unconstitutionally vague, and she makes a pretty strong argument saying
Speaker 2: it's observed on its faith. Trump has made bald threats
Speaker 2: if you go after me, I'm coming after you, and
Speaker 2: that kind of language is inappropriate or gag order picks
Speaker 2: up on that. It says that we just can't have
Speaker 2: that threatening of witnesses or staff or judges.
Speaker 1: That injunction in DC is going to be litigated, perhaps
Speaker 1: all the way to the Supreme Court. We'll see, Thanks
Speaker 1: so much, Carl. That's Professor Carlton by Yes of the
Speaker 1: University of Richmond Law School. Coming up next on the
Speaker 1: Bloomberg Law Show, the issue of reporters privilege. A judge
Speaker 1: in DC has ordered a reporter to reveal her confidential sources,
Speaker 1: and the plaintiff has asked for some stiff sanctions. I'm
Speaker 1: June Grosso and you're listening to Bloomberg. This is Bloomberg
Speaker 1: Law with June Brusso from Bloomberg Radio. Almost all federal
Speaker 1: and state courts have found that state and federal constitutions
Speaker 1: provide a qualified privilege to allow journalists to refuse to
Speaker 1: reveal the names of their confidential sources and the unpublished
Speaker 1: information provided by the sources. There is currently a case
Speaker 1: in DC that's testing that privilege. Catherine Herriage is refusing
Speaker 1: to reveal her source for a series of stories she
Speaker 1: reported on in twenty seventeen when she was a reporter
Speaker 1: at Fox News. Joining me is an expert in media law.
Speaker 1: John Eppsy, a partner at Hall Still, So tell us
Speaker 1: about this case where the reporter is facing the possibility
Speaker 1: of some serious sanctions.
Speaker 3: From time to time we have situations in the country
Speaker 3: where the important policies of the free press and the
Speaker 3: freedom of litigant in order to get discovery clash, and
Speaker 3: that's what we had in this case. This is a
Speaker 3: case where a scientist filed a lawsuit against the FBI
Speaker 3: claiming that the FBI had breached the Federal Privacy Act
Speaker 3: by disclosing information and in this case, by disclosing information
Speaker 3: to a reporter. The scientists then in the course of
Speaker 3: the lawsuit, subpoenaed the reporter in order to get information
Speaker 3: about who actually disclosed the information that she claims was
Speaker 3: a violation of the Act. Importantly, she got the federal
Speaker 3: judge to order the reporter to sit for a deposition
Speaker 3: and provide that information. The reporter, Catherine Herridge, who was
Speaker 3: originally had done the story for Fox and is currently
Speaker 3: a CBS reporter, but the report was done in twenty sixteen.
Speaker 3: Miss Herridge sat for the deposition and politely declined to
Speaker 3: provide that information. And so now what the Miss Chen's
Speaker 3: council has done has filed a motion for sanctions, asking
Speaker 3: the court to require Miss Hendridge to finally disclose that information,
Speaker 3: and those sanctions could be in the form of severe
Speaker 3: monetary penalties or even potentially jail.
Speaker 1: Did Jen subpoena the FBI as well?
Speaker 3: That's an important question because it's one of the things
Speaker 3: that goes into whether or not the information should be disclosed.
Speaker 3: It's what information has she sought in the litigation? Has
Speaker 3: she done whatever she could in order to get alternative sources?
Speaker 3: And so I don't know to what extent she has
Speaker 3: actually gone to get that information from the FBI, but
Speaker 3: the judge has determined that she is done enough to
Speaker 3: seek information from alternative sources in order to require this
Speaker 3: reporter to disclose the information.
Speaker 1: Tell us about the reporter's privilege in general.
Speaker 3: So the reporter's privilege is different with respect to each state,
Speaker 3: except for one has its own reporter's privilege, and then
Speaker 3: the federal law has its own different set of reporter's privileges,
Speaker 3: so that it becomes a little bit confusing as to
Speaker 3: in which jurisdiction you find it in. But most of
Speaker 3: the reporter's privileges provide it's a qualified privilege, which means
Speaker 3: that the reporter may be forced to disclose confidential source
Speaker 3: information or unpublished information if certain things apply, one of
Speaker 3: which is does the information go to the heart of
Speaker 3: the matter, is it absolutely necessary for the lidy to
Speaker 3: have The other is has the litigant tried to get
Speaker 3: the information from alternative sources, and of course is that
Speaker 3: information available from alternative sources. Then the court would then
Speaker 3: have to balance the interest between whether or not the
Speaker 3: litigant should be able to get the information, or whether
Speaker 3: or not, even if there is no alternative source, whether
Speaker 3: the reporter should be able to withhold that information because
Speaker 3: the policy reasons behind the reporter's privilege.
Speaker 1: So in this case, the judge then did what he
Speaker 1: was supposed to do. He balanced the interests, and in
Speaker 1: his opinion, the interest weighed in favor of the disclosure.
Speaker 3: That's what he'd said, and that's what he said initially.
Speaker 3: So initially what happened was the subpoena was issued and
Speaker 3: immediately the reporter said, no, I'm not going to comply
Speaker 3: with a subpoena. They went and the judge ordered her
Speaker 3: to at least sit for the deposition. She sat for
Speaker 3: the deposition, and then when the questions were asked about
Speaker 3: who her sources were. She declined to provide that information,
Speaker 3: and so then the litigant, the scientist Chen and her
Speaker 3: counsel had to go back to the judge and say, okay,
Speaker 3: she's now declined. Now we want you to issue sanctions.
Speaker 3: So the judge has not yet issued any sanctions yet,
Speaker 3: that's still pending, but that is likely to happen. There's
Speaker 3: going to be some sanctions that will happen. The question
Speaker 3: is what are those sanctions. So the judge believes that
Speaker 3: based on what he heard, that the balancing required disclosure.
Speaker 3: Of course that that was met with some serious backlash
Speaker 3: from media advocates and free speech and free press advocates.
Speaker 3: And the reason is because even if there were no
Speaker 3: alternative sources, you've got a situation where if this reporter
Speaker 3: is sanctioned, whether it's severe monetary sanctions or prison, you're
Speaker 3: going to put this reporter and the next reporter on
Speaker 3: the next important case in a position to whether they
Speaker 3: have to choose between whether to sit in jail and
Speaker 3: wait for something to happen, or pay a hot, high fine,
Speaker 3: or to basically burn the source. The reporter had agreed
Speaker 3: to give confidentiality to the source so that the source
Speaker 3: would come forward, so that choice will have to be made.
Speaker 3: If that choice is made, and for instance, and the
Speaker 3: source is disclosed, then what happens in the next case
Speaker 3: when the next reporter seeks to get information from a source,
Speaker 3: that source may not be willing to give it if
Speaker 3: they're concerned that the confidentiality will be breached. And so
Speaker 3: these are unfaced. You would think, Okay, this is a
Speaker 3: litigant that wants to get information, they should be entitled
Speaker 3: that information so that they can live to get the case.
Speaker 3: But it has ramifications, and the ramifications are it may
Speaker 3: be that if future witnesses or whistleblowers are afraid to
Speaker 3: come forward, then important information will not reach the public.
Speaker 1: Are there any circumstances in which the judge would be
Speaker 1: correct in ordering a reporter to reveal his or her sources.
Speaker 3: There is an important case years ago called the Brandsburg case,
Speaker 3: which a lot of this comes from, at least with
Speaker 3: respect to federal jurisdiction. And in Brandsburg, a third party
Speaker 3: or a witness was subpoenaed by the government to appear
Speaker 3: at a grand jury proceeding and to testify, and the
Speaker 3: reporter that that was a reporter, and the reporter fought that,
Speaker 3: and the United States Supreme Court determined that no, under
Speaker 3: those circumstances. In that case, the reporter was required to
Speaker 3: testify at the grand jury. And so a lot of
Speaker 3: times that comes into place when the reporter is actually
Speaker 3: a witness to a particular crime, you know, in that case,
Speaker 3: courts sometimes say, well, you know, a journalist, a journalist
Speaker 3: should be treated just like any other person, and if
Speaker 3: you're a witness to a crime, you should have to
Speaker 3: testify before the grand jury. Where a lot of these
Speaker 3: cases come in is not necessarily when the journalist is
Speaker 3: a witness of the crime, but when the journalist is
Speaker 3: actually you know, as a private citizen. But it's when
Speaker 3: the journalist is actually serving as a reporter and getting
Speaker 3: information about a crime that has already happened. Then the
Speaker 3: question is should that journalists have to come forward and
Speaker 3: testify about what that journalist learned from its sources. And
Speaker 3: I've explained why, you know, I think that it's really
Speaker 3: important to be able to protect your sources and your
Speaker 3: unpublished information because you know, it could lock down. You know,
Speaker 3: there's been so many important stories over the years that
Speaker 3: have only been told because the witnesses or the sources
Speaker 3: came forward and required confidentiality. Had that information had that
Speaker 3: confidentiality not been promised and protected, than those witnesses wouldn't
Speaker 3: have come forward and the public would never have learned
Speaker 3: about these important things.
Speaker 1: Where does the importance of the story weigh in here?
Speaker 3: The more important the story is, that's one more argument
Speaker 3: in favor of not disclosing. But I would argue also
Speaker 3: that even in what you or I might determine to
Speaker 3: be a lesser important story, if it's still it's important
Speaker 3: to somebody, it's important to the confidential source, it's important
Speaker 3: to the people that are involved in that particular issue,
Speaker 3: And even if it might not be important to the
Speaker 3: rest of the country, it's still a confidentiality that was promised.
Speaker 3: And so if that confidentiality is breached in that what
Speaker 3: you're thinking of as the lesser important story, it still
Speaker 3: could impact the next very important story if that if
Speaker 3: that witness in the very important story is concerned that
Speaker 3: his identity is going to be disclosed.
Speaker 1: Also, so in this case, Chen is alleging that the
Speaker 1: federal authorities improperly leaked information about her, violating a privacy act.
Speaker 1: So if she doesn't get that information from the person
Speaker 1: it was leaked to. Then I suppose her case is dead.
Speaker 3: Well, I don't know if it's dead, you know, I
Speaker 3: certainly don't know all the ins and outs of everything
Speaker 3: having to do with her particular case. But the fact
Speaker 3: of the matter is there was information that was published
Speaker 3: in those twenty seventeen stories. So maybe if she can't
Speaker 3: find out who in fact disclosed it, she at least
Speaker 3: has the information that in fact information was disclosed. And
Speaker 3: whether you know whether or not it kills her case
Speaker 3: that it was a particular person at the FBI that
Speaker 3: disclosed it, or whether it was just somebody at the
Speaker 3: FBI that disclosed it, she still might be able to
Speaker 3: proceed forward. And also we don't know, I mean, there
Speaker 3: may be other ways for her to get the information
Speaker 3: of who who specifically disclosed it, you know, by going
Speaker 3: through the FBI or or potentially other sources that we
Speaker 3: just aren't aware of.
Speaker 1: Are cases like this over reporters privilege regularly litigated? Have
Speaker 1: we not been hearing that much about them? Because, you know,
Speaker 1: investigative journalism is not what it used to be.
Speaker 3: Yeah, I think I think some of that, But yes, definitely,
Speaker 3: in our practice we are often asked to go into
Speaker 3: and when I say often, I mean, you know, two
Speaker 3: or three times a year are often asked to go
Speaker 3: in and protect the rights of the reporter or the
Speaker 3: media outlet from having to disclose either confidential sources or
Speaker 3: unpublished information. So it happens, It does happen regularly, but
Speaker 3: it doesn't oftentimes get in the news as much as
Speaker 3: this particular case unless you've got a pretty high profile litiganto,
Speaker 3: a high profile reporter, or a situation where a reporter
Speaker 3: is actually doing some time. You might remember several years ago,
Speaker 3: New York Times reporter Judith Miller had a confidential source
Speaker 3: case and she refused to disclose the identity and she
Speaker 3: actually sat in jail for eighty five days. So you know,
Speaker 3: it's interesting. You know, I don't know specifically what the
Speaker 3: strategies are of Chen, or even of the judge and
Speaker 3: where he sees this case going, but he did issue
Speaker 3: an order last week or so, and he said, you know,
Speaker 3: now that the contemp proceedings are teed up, one of
Speaker 3: two outcomes appear likely. Either heriage will be held in
Speaker 3: contempt in the near future and can immediately appeal that order,
Speaker 3: or as sometimes occurs. In these cases, the sources may
Speaker 3: release heroage from the privilege rather than watch or undergo
Speaker 3: the consequences of the contempt. So that happens sometimes times
Speaker 3: where you've got a source who sees now that the
Speaker 3: reporter is willing to go to jail for that source,
Speaker 3: and then the source comes forward and says, no, no, no, no,
Speaker 3: I don't need you going to jail for me. I'll
Speaker 3: come forward and I'll identify myself. So now you're not
Speaker 3: being held in contempt for failing to disclose.
Speaker 2: That happens.
Speaker 3: My concern about situations like that, while I appreciate it,
Speaker 3: my concern about that is I think it still might
Speaker 3: impact the future case where a future confidential source is
Speaker 3: concerned about whether or not they're going to disclose something
Speaker 3: based you know, on the I guess prospect that the
Speaker 3: reporter might be jailed and they might have to come
Speaker 3: and identify themselves. So I still think the issue still
Speaker 3: is important.
Speaker 1: We assume she's going to appeal this, Where where would
Speaker 1: the appeal go is A is this a DC case? Absolutely?
Speaker 1: And we assume she's going to appeal this, that would
Speaker 1: be to the DC Circuit Court of Appeals. So where
Speaker 1: did the sanctions stand.
Speaker 3: Lawyers have filed for sanctions, and now the judge is
Speaker 3: going to have to consider that and determine if sanctions
Speaker 3: are going to be awarded, which is probably likely, and
Speaker 3: then if they are awarded, what are those sanctions. The
Speaker 3: Chen lawyers have asked for pretty severe sanctions because they
Speaker 3: believe that Fox, because that's where Catherine Herridge was when
Speaker 3: the stories came out. They think that Fox is funding
Speaker 3: and would basically put up any money if there was
Speaker 3: a monetary deal, and so they don't believe that that
Speaker 3: would actually be any pressure on her to disclose the information,
Speaker 3: and they want individual sanctions on her. Also, we don't
Speaker 3: know what those sanctions would be. It could be more
Speaker 3: severe personal monetary sanctions where she'd have to play them herself,
Speaker 3: or possibly jail or something else, but it'll be pretty strong.
Speaker 3: And then once that happens, she'll have the right to appeal,
Speaker 3: and I'm sure she'll appeal immediately. And then there's also
Speaker 3: questions about if she is sanctioned, would the judge then
Speaker 3: stay those sanctions pending the appeal And I don't know
Speaker 3: the answ I don't know what the judge will do
Speaker 3: in this particular case, But my guess is that the
Speaker 3: appellate court would get to this issue rather quickly.
Speaker 1: Is there anything happening in Congress?
Speaker 3: Almost all every state has a journalist privileged statute. Federal
Speaker 3: law does not have a statute on the newsman's privilege,
Speaker 3: and so from time to time there's bipartisan efforts taken
Speaker 3: in order to try to get a Newsman's Privilege Act codified.
Speaker 3: And so lately there's been something called the Press Act
Speaker 3: that is where certain legislators on both sides of the
Speaker 3: aisle are trying to get a newsom's privilege codified for
Speaker 3: federal purposes. As of now, that has not passed. My
Speaker 3: personal concern is it might not be politically expedient for
Speaker 3: some legislators to vote for it, and so I'm concerned
Speaker 3: about that.
Speaker 1: Thanks for being on the show. John. That's John Epstein,
Speaker 1: a partner at Hall Still. And that's it for this
Speaker 1: edition of the Bloomberg Law Show. Remember you can always
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