                               PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                              No. 11-5028


UNITED STATES OF AMERICA,

               Plaintiff − Appellant,

          v.

JEFFREY ALEXANDER STERLING,

               Defendant – Appellee,

JAMES RISEN,

               Intervenor − Appellee.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION;   ABC,   INCORPORATED;   ADVANCE   PUBLICATIONS,
INCORPORATED; ALM MEDIA, INCORPORATED; THE ASSOCIATED PRESS;
BLOOMBERG, L.P.; CABLE NEWS NETWORK, INCORPORATED; CBS
CORPORATION; COX MEDIA GROUP, INC.; DAILY NEWS, L.P.; DOW
JONES AND COMPANY, INCORPORATED; THE E. W. SCRIPPS COMPANY;
FIRST AMENDMENT COALITION; FOX NEWS NETWORK, L.L.C.; GANNETT
COMPANY, INCORPORATED; THE HEARST CORPORATION; THE MCCLATCHY
COMPANY; NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL
PUBLIC RADIO, INCORPORATED; NBCUNIVERSAL MEDIA, LLC; THE NEW
YORK TIMES COMPANY; NEWSPAPER ASSOCIATION OF AMERICA; THE
NEWSWEEK DAILY BEAST COMPANY LLC; RADIO TELEVISION DIGITAL
NEWS ASSOCIATION; REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS; REUTERS AMERICA LLC; TIME INC.; TRIBUNE COMPANY; THE
WASHINGTON POST; WNET,

               Amici Supporting Intervenor.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10−cr−00485−LMB−1)


Argued:   May 18, 2012                      Decided:     July 19, 2013


Before TRAXLER,   Chief   Judge,   and   GREGORY   and   DIAZ,   Circuit
Judges.


Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion for the court in
Part I, in which Judge Gregory and Judge Diaz joined.     Chief
Judge Traxler wrote the opinion for the court in Parts II-V, in
which Judge Diaz joined.    Judge Gregory wrote the opinion for
the court in Part VI, in which Chief Judge Traxler and Judge
Diaz joined.   Judge Gregory wrote the opinion for the court in
Part VII, in which Judge Diaz joined. Chief Judge Traxler wrote
an opinion concurring in part and dissenting in part as to Part
VII. Judge Gregory wrote an opinion dissenting as to Parts II-
V.


ARGUED: Robert A. Parker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Joel Kurtzberg, CAHILL, GORDON
& REINDEL, New York, New York; Edward Brian MacMahon, Jr.,
Middleburg, Virginia; Barry Joel Pollack, MILLER & CHEVALIER,
CHARTERED, Washington, D.C., for Appellees.   ON BRIEF: Neil H.
MacBride, United States Attorney, James L. Trump, Senior
Litigation Counsel, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; William M. Welch II, Senior Litigation
Counsel, Timothy J. Kelly, Trial Attorney, Criminal Division,
Lanny A. Breuer, Assistant Attorney General, Mythili Raman,
Principal Deputy Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.      Mia
Haessly, MILLER & CHEVALIER, CHARTERED, Washington, D.C., for
Appellee Jeffrey Alexander Sterling.   David N. Kelley, CAHILL,
GORDON & REINDEL, New York, New York, for Appellee James Risen.
J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; Bruce
D. Brown, Laurie A. Babinski, BAKER & HOSTETLER LLP, Washington,
D.C., for The Thomas Jefferson Center for the Protection of Free
Expression, Amicus Supporting James Risen. Lee Levine, Jeanette
Melendez Bead, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington,
D.C., for Amici Curiae; John W. Zucker, Indira Satyendra, ABC,

                                   2
INC., New York, New York, for Amicus ABC, Inc.; Richard A.
Bernstein, SABIN, BERMANT & GOULD LLP, New York, New York, for
Amicus Advance Publications, Inc.; Allison C. Hoffman, Fabio B.
Bertoni, ALM MEDIA, LLC, New York, New York, for Amicus ALM
Media, LLC; Karen Kaiser, THE ASSOCIATED PRESS, New York, New
York, for Amicus The Associated Press; Charles J. Glasser, Jr.,
BLOOMBERG L.P., New York, New York, for Amicus Bloomberg L.P.;
David C. Vigilante, Johnita P. Due, CABLE NEWS NETWORK, INC.,
Atlanta, Georgia, for Amicus Cable News Network, Inc.; Anthony
M. Bongiorno, CBS CORPORATION, New York, New York, for Amicus
CBS Corporation; Lance Lovell, COX MEDIA GROUP, INC., Atlanta,
Georgia, for Amicus Cox Media Group, Inc.; Anne B. Carroll,
DAILY NEWS, L.P., New York, New York, for Amicus Daily News,
L.P.; Mark H. Jackson, Jason P. Conti, Gail C. Gove, DOW JONES &
COMPANY, INC., New York, New York, for Amicus Dow Jones &
Company, Inc.; David M. Giles, THE E.W. SCRIPPS COMPANY,
Cincinnati, Ohio, for Amicus The E.W. Scripps Company; Peter
Scheer, FIRST AMENDMENT COALITION, San Rafael, California, for
Amicus First Amendment Coalition; Dianne Brandi, Christopher
Silvestri, FOX NEWS NETWORK, L.L.C., New York, New York, for
Amicus Fox News Network, L.L.C.; Barbara W. Wall, GANNETT CO.,
INC., McLean, Virginia, for Amicus Gannett Co., Inc.; Eve
Burton, Jonathan Donnellan, THE HEARST CORPORATION, New York,
New York, for Amicus The Hearst Corporation; Karole Morgan-
Prager, Stephen J. Burns, THE MCCLATCHY COMPANY, Sacramento,
California, for Amicus The McClatchy Company; Jane E. Mago,
Jerianne   Timmerman,  NATIONAL  ASSOCIATION   OF  BROADCASTERS,
Washington,    D.C.,  for   Amicus   National   Association   of
Broadcasters; Denise Leary, Ashley Messenger, NATIONAL PUBLIC
RADIO, INC., Washington, D.C., for Amicus National Public Radio,
Inc.; Susan E. Weiner, NBCUNIVERSAL MEDIA, LLC, New York, New
York, for Amicus NBCUniversal Media, LLC; George Freeman, THE
NEW YORK TIMES COMPANY, New York, New York, for Amicus The New
York Times Company; Kurt Wimmer, COVINGTON & BURLING, LP,
Washington, D.C., for Amicus Newspaper Association of America;
Randy L. Shapiro, THE NEWSWEEK/DAILY BEAST COMPANY LLC, New
York, New York, for Amicus The Newsweek/Daily Beast Company LLC;
Kathleen A. Kirby, WILEY REIN & FIELDING LLP, Washington, D.C.,
for Amicus Radio Television Digital News Association; Lucy A.
Dalglish, Gregg P. Leslie, REPORTERS COMMITTEE FOR FREEDOM OF
THE PRESS, Arlington, Virginia, for Amicus Reporters Committee
for Freedom of the Press; Shmuel R. Bulka, REUTERS AMERICA LLC,
New York, New York, for Amicus Reuters America LLC; Andrew B.
Lachow, TIME INC., New York, New York, for Amicus Time Inc.;
David S. Bralow, Karen H. Flax, Karlene W. Goller, TRIBUNE
COMPANY, Chicago, Illinois, for Amicus Tribune Company; Eric N.
Lieberman, James A. McLaughlin, THE WASHINGTON POST, Washington,

                               3
D.C., for Amicus The Washington Post; Robert A. Feinberg, WNET,
New York, New York, for Amicus WNET.




                               4
TRAXLER, Chief Judge:

     Jeffrey       Sterling          is     a    former    CIA     agent    who       has   been

indicted        for,    inter        alia,       the    unauthorized       retention         and

disclosure of national defense information, in violation of the

Espionage       Act,     18    U.S.C.       §     793(d)   &     (e).      The    indictment

followed    the        grand       jury’s       probable   cause     determination          that

Sterling    illegally          disclosed          classified       information         about   a

covert CIA operation pertaining to the Iranian nuclear weapons

operation to James Risen, for publication in a book written by

Risen, and that he may have done so in retaliation for the CIA’s

decision to terminate his employment and to interfere with his

efforts to publish such classified information in his personal

memoirs.         Prior        to    trial,        the   district        court    made       three

evidentiary rulings that are the subject of this appeal.                                       We

affirm     in    part,        reverse       in     part,     and   remand       for     further

proceedings.

                                      I.        Background

                                                  A.

     According to the indictment, Defendant Jeffrey Sterling was

hired as a CIA case officer in 1993, and granted a top secret

security clearance.                As a condition of his hire, and on several

occasions thereafter, Sterling signed agreements with the CIA

explicitly acknowledging that he was not permitted to retain or

disclose classified information that he obtained in the course

                                                  5
of his employment, without prior authorization from the CIA, and

that doing so could be a criminal offense.

       In November 1998, the CIA assigned Sterling to a highly

classified program intended to impede Iran’s efforts to acquire

or     develop     nuclear      weapons      (“Classified        Program     No.    1”).

Sterling also served as the case officer for a covert asset

(“Human      Asset    No.     1”)   who   was     assisting     the   CIA    with   this

program.         In     May    2000,      Sterling      was    reassigned     and    his

involvement with Classified Program No. 1 ended.

       In August 2000, shortly after Sterling’s reassignment and

after    being     told      that   he    had     not   met    performance    targets,

Sterling filed an equal opportunity complaint alleging that the

CIA had denied him certain assignments because he was African

American.        The EEO office of the CIA investigated Sterling’s

complaint and determined that it was without merit.                          In August

2001, Sterling filed a federal lawsuit against the CIA alleging

that    he   had      been    the   victim       of   racial   discrimination,       and

seeking monetary compensation.                   Several settlement demands were

rejected, and the lawsuit was dismissed in March 2004, following

the government’s invocation of the state secrets doctrine.                            We

affirmed the dismissal.              See Sterling v. Tenet, 416 F.3d 338,

341 (4th Cir. 2005).

       Sterling was officially terminated from the CIA on January

31, 2002, but he had been “outprocessed” and effectively removed

                                             6
from   service     in    October         2001.        As   part      of   his     termination,

Sterling     was    asked      to     sign       a    final     acknowledgment        of   his

continuing       legal        obligation             not   to     disclose         classified

information.       Sterling refused.

       On November 4, 2001, James Risen published an article in

The New York Times, under the headline “Secret C.I.A. Site in

New York Was Destroyed on Sept. 11.”                            J.A. 655.           A “former

agency official” was cited as a source.                              J.A. 655.       In March

2002, Risen published an article about Sterling’s discrimination

suit in The New York Times, under the headline “Fired by C.I.A.,

He Says Agency Practiced Bias.”                        J.A. 156, 725.             The article

states that Sterling provided Risen with a copy of one of his

CIA performance evaluations, which is identified as a classified

document.      The article also states that Sterling “relished his

secret assignment to recruit Iranians as spies.”                            J.A. 156.

       In   January     2002,       in    accordance          with    his   non-disclosure

agreements with the CIA, Sterling submitted a book proposal and

sample chapters of his memoirs to the CIA’s Publications Review

Board.      The Board expressed concerns about Sterling’s inclusion

of classified information in the materials he submitted.

       On   January      7,    2003,       Sterling        contacted        the    Board   and

expressed “extreme unhappiness” over the Board’s edits to his

memoirs, and stated that “he would be coming at . . . the CIA

with     everything      at     his       disposal.”            J.A.      35-36     (internal

                                                 7
quotation marks and alterations omitted).                      On March 4, 2003,

Sterling filed a second civil lawsuit against the CIA, alleging

that the agency had unlawfully infringed his right to publish

his    memoirs.            The    action     was     subsequently      dismissed    by

stipulation of the parties.                See Sterling v. CIA, No. 1:03-cv-

00603-TPJ (D.D.C. July 30, 2004).

       The day after he filed his second civil suit, Sterling met

with       two     staff   members    of     the    Senate   Select    Committee    on

Intelligence (“SSCI”) and raised, for the first time, concerns

about the CIA’s handling of Classified Program No. 1, as well as

concerns about his discrimination lawsuit. 1                   According to a SSCI

staff member, Sterling “threatened to go to the press,” although

it    was    unclear       “if   Sterling’s       threat   related    to    [Classified

Program No. 1] or his lawsuit.”               J.S.A 29.

       Telephone records indicate that Sterling called Risen seven

times between February 27 and March 29, 2003.                          Sterling also

sent an e-mail to Risen on March 10, 2003 - five days after his

meeting with the SSCI staff - in which he referenced an article

from       CNN’s    website      entitled,    “Report:       Iran     has   ‘extremely

       1
       CIA employees who are entrusted with classified, national
security information and have concerns about intelligence
programs or other government activities may voice their
concerns,   without  public   disclosure  and   its  accompanying
consequences, to the House and Senate Intelligence Committees,
or to the CIA’s Office of the Inspector General.              See
Intelligence Community Whistleblower Protection Act of 1998,
Pub. L. No. 105-272, Title VII, 112 Stat. 2396 (1998).


                                              8
advanced’ nuclear program,” and asked, “quite interesting, don’t

you think?      All the more reason to wonder . . .”                     J.A. 37, 726;

J.S.A 31.

     On April 3, 2003, Risen informed the CIA and the National

Security Council that he had classified information concerning

Classified Program No. 1 and that he intended to publish a story

about    it     in     The    New     York    Times.         In    response,       senior

administration        officials,       including        National   Security     Advisor

Condoleezza Rice and Director of the CIA George Tenet, met with

Risen and Jill Abramson, then Washington Bureau Chief of The New

York Times, to discuss the damage that publication would cause

to national security interests and the danger to the personal

safety of the CIA asset involved in the operation.                        Several days

later,    Ms.        Abramson       advised       the   administration      that      the

newspaper would not publish the story.

     Approximately           three     months      later,    Sterling      moved     from

Virginia to Missouri to live with friends.                    During this time, 19

telephone     calls      took       place     between       the    New   York      Times’

Washington office and Sterling’s friends’ home telephone number.

Sterling’s friends denied any involvement in these calls.                               A

forensic analysis of the computer Sterling used during this time

revealed 27 e-mails between Sterling and Risen, several of which

indicated that Sterling and Risen were meeting and exchanging

information during this time period.

                                              9
     Although     The   New   York    Times      had    agreed    not       to   publish

information about Classified Program No. 1, Risen published a

book, State of War:       The Secret History of the CIA and the Bush

Administration    (“State     of   War”),       in   January     2006,       which    did

disclose the classified information.                 J.A. 721.         Specifically,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals

details about Classified Program No. 1.                  J.S.A. 219-32.           In the

book,     Risen   entitled    the     program          “Operation       Merlin”       and

described it as a “failed attempt by the CIA to have a former

Russian scientist provide flawed nuclear weapon blueprints to

Iran.”     J.A. 722.      Risen does not reveal his sources for the

classified    information     in     Chapter      9,    nor    has     he    indicated

whether he had more than one source.                     However, much of the

chapter is told from the point of view of a CIA case officer

responsible for handling Human Asset No. 1.                      The chapter also

describes two classified meetings at which Sterling was the only

common attendee.

                                       B.

     On    December     22,   2010,    a    federal       grand       jury       indicted

Sterling     on   six     counts      of        unauthorized          retention       and

communication of national defense information, in violation of

18 U.S.C. § 793(d) and (e); one count of unlawful retention of

national     defense    information,       in    violation       of    18    U.S.C.    §

793(e); one count of mail fraud, in violation of 18 U.S.C. §

                                       10
1341;     one     count    of    unauthorized       conveyance      of   government

property, in violation of 18 U.S.C. § 641; and one count of

obstruction of justice, in violation of 18 U.S.C. § 1512(c)(1).

Sterling’s trial was set to begin on October 17, 2011.

      On May 23, 2011, Attorney General Eric Holder authorized

the     government    to    issue     a     trial   subpoena     seeking    Risen’s

testimony about the identity of his source for information about

Classified       Program   No.    1   and    asking   Risen    to    confirm   that

statements attributed to sources were actually made by those

sources.        The government also filed a motion in limine to admit

Risen’s testimony.         Risen moved to quash the subpoena and for a

protective order, asserting that he was protected from compelled

testimony by the First Amendment or, in the alternative, by a

federal common-law reporter’s privilege. 2


      2
       During the grand jury proceedings, two similar subpoenas
were issued for Risen’s testimony.       The first grand jury
subpoena was authorized by United States Attorney General
Michael Mukasey, on behalf of the Bush Administration, on
January 28, 2008.   Risen’s motion to quash was granted in part
and denied in part. The district court recognized a reporter’s
privilege under the First Amendment.         Because Risen had
disclosed Sterling’s name and some information about his
reporting to a third party, however, the district court found a
partial waiver as to this information.     See United States v.
Sterling, 818 F. Supp. 2d 945, 947 (E.D. Va. 2011). Both Risen
and the government sought reconsideration of the district
court’s order, but the grand jury expired prior to final
disposition of the motion.

     The second grand jury subpoena was authorized by Attorney
General Eric Holder, on behalf of the Obama Administration, on


                                          11
     The motions were denied in part and granted in part by the

district court.          The subpoena was “quashed for Risen’s testimony

about    his    reporting       and   source(s)          except    to    the    extent      that

Risen     [would]        be      required          to     provide        testimony          that

authenticates      the     accuracy      of        his    journalism,       subject        to   a

protective order.”            United States v. Sterling, 818 F. Supp. 2d

945, 947 (E.D. Va. 2011).                The district court held that Risen

had “a qualified First Amendment reporter’s privilege that may

be   invoked      when    a     subpoena      either       seeks     information           about

confidential sources or is issued to harass or intimidate the

journalist,”       id.     at     951    (emphasis          added),       and       that    the

government      could     overcome      the    privilege          only   by     meeting      the

three-part      test     that    this   circuit          established      for    reporters’

claims    of    privilege       in    civil    cases       in     LaRouche     v.    National

Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986).                               The district

court    held     that,       while   the     information          sought      was    clearly

relevant       under    the     first   prong        of    the     LaRouche      test,       the

Government had failed to demonstrate that the information was




January 19, 2010. On Risen’s motion, the district court quashed
the subpoena, again based upon the First Amendment and its
conclusion that there was “more than enough [circumstantial]
evidence to establish probable cause to indict Sterling.”    Id.
at 950 (internal quotation marks omitted).          However, the
district court “indicated that it might be less likely to quash
a trial subpoena, because . . . at that stage the government
must prove [Sterling’s] guilt beyond a [reasonable] doubt.” Id.


                                              12
unavailable     from    other   means      and   that   it    had     a   compelling

interest in presenting it to the jury.

     In addition to the district court’s order quashing Risen’s

trial     subpoena,     the   district      court   handed        down    two        other

evidentiary rulings that are the subject of this appeal.                               The

district     court     suppressed    the      testimony      of     two   government

witnesses as a sanction for the government’s late disclosure of

impeachment material under Giglio v. United States, 405 U.S. 150

(1972).     The district court also denied the government’s motion

to   withhold    from     Sterling    and     the   jury,         pursuant      to     the

Classified Information Procedures Act (“CIPA”), 18 U.S.C. app.

3, the true names and identities of several covert CIA officers

and contractors it intends to call to testify at trial.

     In a majority opinion written by Chief Judge Traxler, we

now reverse the district court’s order holding that Risen has a

reporter’s privilege that entitles him to refuse to testify at

trial concerning the source and scope of the classified national

defense information illegally disclosed to him (Issue I).                            In a

separate majority opinion written by Judge Gregory, we reverse

the district court’s order suppressing the testimony of the two

Government witnesses (Issue II), and affirm in part and reverse

in part the district court’s CIPA ruling (Issue III).




                                         13
TRAXLER, Chief Judge, writing for the court on Issue I:


                      II.    The Reporter’s Privilege Claim
     We begin with the government’s appeal of the district court

order quashing the trial subpoena issued to Risen on the basis

of a First Amendment reporter’s privilege, and Risen’s challenge

to our jurisdiction to consider this portion of the appeal.

                                     A.   Jurisdiction

     Risen contends that we lack jurisdiction to consider the

district    court’s         ruling    under      18   U.S.C.      §   3731,    because        the

district court stated that the limitations on Risen’s testimony

might be reconsidered under the LaRouche test as the testimony

developed at trial.           We disagree.

     Section       3731      provides      for       interlocutory      appeals          by   the

United     States      of     pretrial      orders         suppressing        or    excluding

evidence       upon   certification         to       the   district     court       that      the

appeal    is    not    taken    for       the    purpose     of   delay    and      that      the

evidence in question is substantial proof of a fact material to

the proceedings.            We have held that we have jurisdiction under §

3731 even when the district court “repeatedly indicated that its

rulings     were      preliminary          and       could    change      as       the    trial

progressed.”          United States v. Siegel, 536 F.3d 306, 314 (4th

Cir. 2008); see also United States v. Todaro, 744 F.2d 5, 8 n.1

(2d Cir. 1984) (finding that a conditional suppression order may


                                                14
be immediately appealed by the government under § 3731); cf.

United States v. Horwitz, 622 F.2d 1101, 1104 (2d Cir. 1980)

(“[W]e do not think that the conditional nature of the district

court’s       ruling,       which       raises        the       remote        prospect      that

suppression will not be ordered, necessarily deprives this court

of    jurisdiction        under      section     3731     to     hear    the    government’s

appeal.”).

       While it is true that the district court left itself some

room    in    its    order      to      adjust      the     scope       of    Risen’s     trial

testimony, it also made clear that it did not expect to revisit

its    decision     that    Risen       was    entitled        to    assert     a    reporter’s

privilege under the First Amendment and could not be compelled

to reveal his sources.                Thus, we hold that we have jurisdiction

over    the   appeal.          “To    conclude      otherwise         would     insulate    the

district      court’s      ruling       from    appellate           review”    because     once

jeopardy       attaches,          the     Government            cannot        appeal,     “thus

frustrating        rather      than     furthering        the    purposes       of    §   3731.”

Siegel, 536 F.3d at 315.

                          B.    The First Amendment Claim
                                               1.

       There is no First Amendment testimonial privilege, absolute

or qualified, that protects a reporter from being compelled to

testify       by    the     prosecution          or     the         defense     in     criminal

proceedings about criminal conduct that the reporter personally

                                               15
witnessed or participated in, absent a showing of bad faith,

harassment, or other such non-legitimate motive, even though the

reporter promised confidentiality to his source.                         In Branzburg

v.    Hayes,    408       U.S.   665   (1972),    the    Supreme       Court      “in    no

uncertain terms rejected the existence of such a privilege.”                             In

re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146 (D.C.

Cir. 2006).

      Like     Risen,      the    Branzburg     reporters    were      subpoenaed        to

testify regarding their personal knowledge of criminal activity.

One       reporter        was    subpoenaed      to     testify        regarding        his

observations         of     persons    synthesizing       hashish        and      smoking

marijuana; two others were subpoenaed to testify regarding their

observations         of    suspected   criminal       activities       of   the    Black

Panther Party. 3          All resisted on the ground that they possessed a

qualified privilege against being “forced either to appear or to

testify before a grand jury or at trial,” unless a three-part

showing was made: (1) “that the reporter possesses information

relevant to a crime,” (2) “that the information the reporter has

is unavailable from other sources,” and (3) “that the need for

the    information         is    sufficiently    compelling       to    override        the

claimed invasion of First Amendment interests occasioned by the

disclosure.”         Branzburg, 408 U.S. at 680.              “The heart of the

      3
       Branzburg was a consolidated proceeding.      For ease of
reference, we refer to all reporters as the Branzburg reporters.


                                          16
[reporters’]    claim     [was]    that        the    burden     on       news    gathering

resulting     from   compelling         [them]        to      disclose         confidential

information outweigh[ed] any public interest in obtaining the

information.”    Id. at 681.

     Having     so   defined      the    claim,         the     Court      proceeded       to

unequivocally    reject    it.      Noting           “the   longstanding          principle

that the public . . . has a right to every man’s evidence,

except for those persons protected by a constitutional, common-

law, or statutory privilege,” id. at 688 (internal quotation

marks omitted), the Court held as follows:

     Until   now  the   only   testimonial   privilege  for
     unofficial witnesses that is rooted in the Federal
     Constitution is the Fifth Amendment privilege against
     compelled self-incrimination.   We are asked to create
     another by interpreting the First Amendment to grant
     newsmen a testimonial privilege that other citizens do
     not enjoy. This we decline to do.

Id. at 689-90 (emphasis added); see id. at 690 n.29 (noting that

“testimonial    privileges       [are]    disfavor[ed]           .    .    .     since    such

privileges     obstruct     the     search       for        truth”        and     serve    as

“‘obstacle[s] to the administration of justice’” (quoting 8 J.

Wigmore, Evidence § 2192 (McNaughton rev. 1961))).

     The First Amendment claim in Branzburg was grounded in the

same argument offered by Risen -- that the absence of such a

qualified     privilege     would        chill        the     future       newsgathering

abilities of the press, to the detriment of the free flow of

information to the public.              And the Branzburg claim, too, was

                                          17
supported      by     affidavits     and     amicus     curiae    memoranda      from

journalists claiming that their news sources and news reporting

would    be    adversely     impacted       if    reporters    were     required   to

testify       about      confidential       relationships.            However,     the

Branzburg      Court     rejected    that    rationale    as     inappropriate      in

criminal proceedings:

             The    preference   for   anonymity   of   .   .  .
       confidential informants involved in actual criminal
       conduct is presumably a product of their desire to
       escape criminal prosecution, [but] this preference,
       while     understandable,    is   hardly   deserving   of
       constitutional protection.      It would be frivolous to
       assert – and no one does in these cases – that the
       First Amendment, in the interest of securing news or
       otherwise, confers a license on either the reporter or
       his news sources to violate valid criminal laws.
       Although stealing documents or private wiretapping
       could provide newsworthy information, neither reporter
       nor source is immune from conviction for such conduct,
       whatever the impact on the flow of news.       Neither is
       immune, on First Amendment grounds, from testifying
       against the other, before the grand jury or at a
       criminal trial.

Id. at 691 (emphasis added); see also id. at 690-91 (noting that

there was “no basis for holding that the public interest in law

enforcement and in ensuring effective grand jury proceedings is

insufficient        to    override   the        consequential,    but       uncertain,

burden on news gathering that is said to result from insisting

that    reporters,        like   other      citizens,     respond      to    relevant




                                           18
questions   put   to    them   in    the   course   of   a       valid    grand   jury

investigation or criminal trial”). 4

     In sum, the Branzburg Court declined to treat reporters

differently from all other citizens who are compelled to give

evidence    of    criminal     activity,      and   refused        to     require   a

“compelling interest” or other special showing simply because it

is a reporter who is in possession of the evidence.                      Compare id.

at 708 (holding that government need not “demonstrate[] some

‘compelling need’ for a newsman’s testimony”), with id. at 743

(Stewart, J., dissenting) (advocating adoption of the three-part

test that includes demonstration of a “compelling and overriding

interest in the information”).

     Although     the   Court       soundly   rejected       a    First    Amendment

privilege in criminal proceedings, the Court did observe, in the

concluding paragraph of its analysis, that the press would not

be wholly without protection:

     [N]ews gathering is not without its First Amendment
     protections,   and   grand jury   investigations   if
     instituted or conducted other than in good faith,
     would pose wholly different issues for resolution
     under the First Amendment. Official harassment of the

     4
        Branzburg arose in the context of a grand jury
investigation, but its language and reasoning apply equally to
subpoenas in the ensuing criminal trials, where the government
bears the same charge to effectuate the public interest in law
enforcement but must meet an even higher burden of proof.   See
408 U.S. at 686, 690-91; In re Shain, 978 F.2d 850, 852 (4th
Cir. 1992); United States v. Smith, 135 F.3d 963, 971 (5th Cir.
1998).


                                        19
      press undertaken not for purposes of law enforcement
      but to disrupt a reporter’s relationship with his news
      sources would have no justification.

Id.   at     707-08   (majority        opinion)(emphasis      added)(footnote

omitted).     This is the holding of Branzburg, and the Supreme

Court has never varied from it.                As the Court observed nearly

two decades later:

      In Branzburg, the Court rejected the notion that under
      the First Amendment a reporter could not be required
      to appear or to testify as to information obtained in
      confidence   without  a   special   showing  that   the
      reporter’s testimony was necessary.         Petitioners
      there, like petitioner here, claimed that requiring
      disclosure of information collected in confidence
      would inhibit the free flow of information in
      contravention of First Amendment principles.     In the
      course of rejecting the First Amendment argument, this
      Court noted that the First Amendment does not
      invalidate every incidental burdening of the press
      that may result from the enforcement of civil or
      criminal statutes of general applicability.     We also
      indicated a reluctance to recognize a constitutional
      privilege where it was unclear how often and to what
      extent informers are actually deterred from furnishing
      information when newsmen are forced to testify before
      a grand jury.     We were unwilling then, as we are
      today, to embark the judiciary on a long and difficult
      journey to . . . an uncertain destination.

University of Pa. v. EEOC, 493 U.S. 182, 201 (1990) (internal

quotation marks omitted); see also Cohen v. Cowles Media Co.,

501   U.S.   663,   669   (1991)   (“[T]he      First   Amendment   [does   not]

relieve a newspaper reporter of the obligation shared by all

citizens     to   respond   to     a   grand    jury    subpoena    and   answer




                                        20
questions relevant to a criminal investigation, even though the

reporter might be required to reveal a confidential source.”). 5

     The    controlling      authority     is   clear.        “In    language     as

relevant to the alleged illegal disclosure of the identity of

covert agents as it was to the alleged illegal processing of

hashish    [in    Branzburg],   the   Court     stated   that       it   could   not

‘seriously       entertain   the   notion       that   the    First      Amendment

protects a newsman’s agreement to conceal the criminal conduct

of his source, or evidence thereof . . . .’”                 Judith Miller, 438

F.3d at 1147 (quoting Branzburg, 408 U.S. at 692); see id. at

1165-66 (Tatel, J., concurring) (“If, as Branzburg concludes,

the First Amendment permits compulsion of reporters’ testimony

     5
       This plain interpretation of Branzburg is also confirmed
by recent cases from our sister circuits. See United States v.
Moloney (In re Price), 685 F.3d 1, 16 (1st Cir. 2012)
(“Branzburg . . . held that the fact that disclosure of the
materials sought by a subpoena in criminal proceedings would
result in the breaking of a promise of confidentiality by
reporters is not by itself a legally cognizable First Amendment
or common law injury.     Since Branzburg, the Court has three
times affirmed its basic principles in that opinion.” (citations
omitted) (citing Cohen v. Cowles Media Co., 501 U.S. 663 (1991);
University of Pa. v. EEOC, 493 U.S. 182 (1990); and Zurcher v.
Stanford Daily, 436 U.S. 547 (1978))); ACLU v. Alvarez, 679 F.3d
583, 598 (7th Cir. 2012) (noting that “[t]he [Branzburg] Court
declined to fashion a special journalists’ privilege” because,
inter alia, “the public interest in detecting, punishing, and
deterring crime was much stronger than the marginal increase in
the flow of news about crime that a journalist’s testimonial
privilege might provide” (internal quotation marks omitted)); In
re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146-47
(D.C. Cir. 2006) (unanimously concluding, in a national security
leak case, that Branzburg rejected such a First Amendment
reporter’s privilege).


                                      21
about individuals manufacturing drugs or plotting against the

government, all information the government could have obtained

from an undercover investigation of its own, the case for a

constitutional       privilege    appears    weak   indeed   with   respect   to

leaks [of classified information], which in all likelihood will

be extremely difficult to prove without the reporter’s aid.”

(citation     omitted)).         Accordingly,    “if    Branzburg   is   to   be

limited or distinguished in the circumstances of this case, we

must leave that task to the Supreme Court.”             Id. at 1166.

       Notwithstanding the clarity of Justice White’s opinion for

the Court in Branzburg, and the fact that Justice Powell joined

that   opinion,      Risen   argues   that    Justice    Powell’s   concurring

opinion in Branzburg should instead be interpreted as a tacit

endorsement     of    Justice     Stewart’s     dissenting    opinion,   which

argued in favor of recognizing a First Amendment privilege in

criminal cases that could be overcome only if the government

carries the heavy burden of establishing a compelling interest

or need.      See Branzburg, 408 U.S. at 739, 743 (Stewart, J.,

dissenting).

       We cannot accept this strained reading of Justice Powell’s

opinion.    By his own words, Justice Powell concurred in Justice

White’s opinion for the majority, and he rejected the contrary

view of Justice Stewart:



                                       22
          I add this brief statement to emphasize what
     seems to me to be the limited nature of the Court’s
     holding.    The Court does not hold that newsmen,
     subpoenaed to testify before a grand jury, are without
     constitutional rights with respect to the gathering of
     news or in safeguarding their sources.    Certainly, we
     do not hold, as suggested in MR. JUSTICE STEWART’s
     dissenting opinion, that state and federal authorities
     are   free   to  ‘annex’   the   news   media   as  ‘an
     investigative arm of government.’ . . .

          As indicated in the concluding portion of the
     [majority]   opinion,   the   Court   states   that   no
     harassment of newsmen will be tolerated. If a newsman
     believes that the grand jury investigation is not
     being conducted in good faith he is not without
     remedy. Indeed, if the newsman is called upon to give
     information   bearing  only   a   remote   and   tenuous
     relationship to the subject of the investigation, or
     if he has some other reason to believe that his
     testimony implicates confidential source relationships
     without a legitimate need of law enforcement, he will
     have access to the court on a motion to quash and an
     appropriate protective order may be entered.         The
     asserted claim to privilege should be judged on its
     facts by the striking of a proper balance between
     freedom of the press and the obligation of all
     citizens to give relevant testimony with respect to
     criminal conduct.      The balance of these vital
     constitutional and societal interests on a case-by-
     case basis accords with the tried and traditional way
     of adjudicating such questions.

Id. at 709-10 (Powell, J., concurring)(emphasis added).

     Justice Powell’s concurrence expresses no disagreement with

the majority’s determination that reporters are entitled to no

special privilege that would allow them to withhold relevant

information   about    criminal    conduct    without   a   showing   of    bad

faith or other such improper motive, nor with the majority’s

clear   rejection     of   the   three-part   compelling     interest      test



                                     23
advocated by the Branzburg reporters.                     To the extent Justice

Powell addressed any further inquiry that might take place in a

criminal proceeding, he appeared to include within the realm of

harassment     a     request     that      “implicates      confidential      source

relationships without a legitimate need of law enforcement,” id.

at 710 (emphasis added), and he again rejected the dissent’s

contrary     view     that     the   heavy      burdens     of   the   three-part,

compelling interest test were appropriate:

      Moreover, absent the constitutional preconditions that
      . . . th[e] dissenting opinion would impose as heavy
      burdens of proof to be carried by the State, the court
      – when called upon to protect a newsman from improper
      or prejudicial questioning – would be free to balance
      the competing interests on their merits in the
      particular case. The new constitutional rule endorsed
      by th[e] dissenting opinion would, as a practical
      matter, defeat such a fair balancing and the essential
      societal interest in the detection and prosecution of
      crime would be heavily subordinated.

Id. at 710 n.* (emphasis added).

      For the foregoing reasons, Justice Powell’s concurrence in

Branzburg simply does not allow for the recognition of a First

Amendment reporter’s privilege in a criminal proceeding which

can   only   be     overcome    if   the    government     satisfies    the    heavy

burdens of the three-part, compelling-interest test.                    Accepting

this premise is “tantamount to our substituting, as the holding

of Branzburg, the dissent written by Justice Stewart . . . for

the majority opinion.”           Storer Commc’ns. v Giovan (In re Grand




                                           24
Jury Proceedings), 810 F.2d 580, 584 (6th Cir. 1987). 6                               The

Branzburg     Court    considered     the       arguments     we    consider       today,

balanced the respective interests of the press and the public in

newsgathering and in prosecuting crimes, and held that, so long

as    the   subpoena   is   issued   in     good     faith    and     is   based    on   a

legitimate need of law enforcement, the government need not make

any special showing to obtain evidence of criminal conduct from

a reporter in a criminal proceeding.                   The reporter must appear

and give testimony just as every other citizen must.                        We are not

at liberty to conclude otherwise.

                                           2.
       Although Branzburg alone compels us to reject Risen’s claim

to a First Amendment privilege, we are also bound by our circuit

precedent, for this is not the first time we have passed upon

the    question   of    whether      and        to   what    extent    a    reporter’s

privilege can be asserted in criminal proceedings.

                                           a.

       6
        See also Judith Miller, 438 F.3d at 1148 (“Justice
Powell’s concurring opinion was not the opinion of a justice who
refused to join the majority.     He joined the majority by its
terms, rejecting none of Justice White’s reasoning on behalf of
the majority.”); id. (“Justice White’s opinion is not a
plurality opinion. . . . [I]t is the opinion of the majority of
the Court. As such it is authoritative precedent. It says what
it says. It rejects the privilege asserted by” the reporters.);
Scarce v. United States (In re Grand Jury Proceedings), 5 F.3d
397, 400 (9th Cir. 1993) (noting that Justice Powell’s
concurrence does not authorize a “rebalancing [of] the interests
at stake in every claim of privilege made before a grand jury”).


                                           25
       In reaching its decision in this case, the district court

relied upon our precedent in LaRouche v. National Broadcasting

Co., 780 F.2d 1134 (4th Cir. 1986).                       In LaRouche, we considered

a civil litigant’s right to compel evidence from a reporter and

the     First     Amendment        claim      of     the     press      to   protect       its

newsgathering activities.               We recognized a reporter’s privilege

in    this   civil       context      that    could       only    be    overcome     if    the

litigant      met      the    three-part       test       that    the    Branzburg     Court

rejected in the criminal context.                         Specifically, we held that

district     courts,         before    requiring         disclosure     of   a   reporter’s

source in a civil proceeding, must consider “(1) whether the

information       is     relevant,      (2)    whether      the    information       can       be

obtained     by     alternative        means,       and    (3)    whether    there     is      a

compelling interest in the information.”                      Id. at 1139.

       In    LaRouche,        we   followed        the     lead   of     other   circuits,

including the Fifth Circuit in Miller v. Transamerican Press,

Inc., 621 F.2d 721, modified, 628 F.2d 932 (5th Cir. 1980),

which    held     that    Branzburg      did       not    preclude      recognition       of    a

qualified reporter’s privilege or application of the three-part

test in civil cases.                  In such cases, of course, “the public




                                              26
interest      in     effective         criminal       law    enforcement        is    absent.”

Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C. Cir. 1981). 7

                                                b.

       LaRouche, however, offers no authority for us to recognize

a     First       Amendment      reporter’s           privilege        in     this    criminal

proceeding.          Not only does Branzburg preclude this extension,

the    distinction        is     critical,        and       our    circuit      has     already

considered          and      rejected         such     “a     qualified         [reporter’s]

privilege,         grounded      on     the     First       Amendment,        against       being

compelled to testify in [a] criminal trial.”                                In re Shain, 978

F.2d 850, 851 (4th Cir. 1992) (emphasis added).

       The Shain reporters were held in contempt for their refusal

to comply with subpoenas to testify in the criminal trial of a

former state senator whom they had previously interviewed.                                    At

the time, two of our sister circuits had extended the three-part

test       that    had    been    adopted        in     civil      actions      to    criminal

proceedings,         albeit      with     little        to    no       discussion      of    the

Branzburg         opinion.       See    United       States       v.   Caporale,      806   F.2d


       7
       Like the Fifth Circuit, the D.C. Circuit also held “that
the balancing approach employed [in civil actions] survived the
Supreme Court’s decision in Branzburg.”   Zerilli v. Smith, 656
F.2d 705, 712 n.43 (D.C. Cir. 1981) (citation omitted).    Both
circuits subsequently confirmed that the privilege does not
apply in the absence of harassment or bad faith, and refused to
apply the three-part test to subpoenas issued in criminal
proceedings.   See Judith Miller, 438 F.3d at 1149; Smith, 135
F.3d at 971-72.


                                                27
1487, 1503-04 (11th Cir. 1986) (citing Miller, 621 F.2d at 726);

United     States    v.    Burke,      700      F.2d      70,      76-77     (2d    Cir.   1983)

(citing Zerilli, 656 F.2d at 713-15).

      This court in Shain, however, declined to follow that path.

We did not recognize a broad privilege nor did we extend the

LaRouche three-part test to criminal proceedings.                                   Instead, we

followed         Branzburg     and       held        that          “absent     evidence       of

governmental       harassment       or    bad       faith,         the   reporters     have   no

privilege        different     from      that       of    any      other   citizen      not   to

testify    about     knowledge        relevant           to   a    criminal    prosecution.”

Shain,     978    F.2d    at   852.       We     also         considered      the    effect   of

Justice     Powell’s      concurring         opinion          in    Branzburg,       explaining

that Justice Powell “joined in the Court’s opinion” and wrote

separately only

      to emphasize the Court’s admonishment against official
      harassment of the press and to add, “We do not hold .
      . . that state and federal authorities are free to
      ‘annex’ the news media as ‘an investigative arm of
      government.’”    Justice Powell concluded that when
      evidence is presented to question the good faith of a
      request for information from the press, a “proper
      balance” must be struck “between freedom of the press
      and the obligation of all citizens to give relevant
      testimony with respect to criminal conduct.”

Id.   at     853     (emphasis        added)         (citation           omitted)      (quoting

Branzburg, 408 U.S. at 710 (Powell, J., concurring)); see id.

(citing United States v. Steelhammer, 539 F.2d 373, 376 (4th

Cir. 1976) (Winter, J., dissenting), adopted by the court en


                                               28
banc, 561 F.2d 539, 540 (4th Cir. 1977) (per curiam) (noting

that “[i]n Steelhammer, we applied Branzburg to compel testimony

from the press in a civil contempt trial, recognizing that only

when   evidence       of   harassment      is    presented         do     we    balance      the

interests involved” (emphasis added)).

       To   the   extent     our    court      has    addressed         the     issue     since

Shain, we have continued to recognize the important distinction

between     enforcing      subpoenas      issued      to     reporters          in    criminal

proceedings and enforcing subpoenas issued to reporters in civil

litigation.       Subpoenas in criminal cases are driven by the quite

different and compelling public interest in effective criminal

investigation and prosecution, an interest that simply is not

present in civil cases.             See Ashcraft v. Conoco, Inc., 218 F.3d

282,    287    (4th     Cir.     2000)    (applying         the     LaRouche          test    to

confidential source information in the civil context, but noting

Branzburg’s       “holding      that     [a]     reporter,         like    [an]       ordinary

citizen,      must     respond     to    grand       jury     subpoenas         and     answer

questions related to criminal conduct he personally observed and

wrote about, regardless of any promises of confidentiality he

gave to subjects of stories” (emphasis added)).

       There is good reason for this distinction between civil and

criminal      cases.       It      has   roots       in     both    the        majority      and

concurring opinions in Branzburg, both of which highlight the

critical importance of criminal proceedings and the right to

                                            29
compel all available evidence in such matters.   As the Court has

subsequently observed as well:

          Th[is] distinction . . . between criminal and
     civil proceedings is not just a matter of formalism. .
     . .     [T]he need for information in the criminal
     context is much weightier because “our historic[al]
     commitment to the rule of law . . . is nowhere more
     profoundly manifest than in our view that ‘the twofold
     aim [of criminal justice] is that guilt shall not
     escape or innocence suffer.’”      [United States v.
     Nixon, 418 U.S. 683, 708-09 (1974)] (quoting Berger v.
     United States, 295 U.S. 78, 88 (1935)).    In light of
     the “fundamental” and “comprehensive” need for “every
     man’s evidence” in the criminal justice system, 418
     U.S. at 709, 710, . . . privilege claims that shield
     information from a grand jury proceeding or a criminal
     trial are not to be “expansively construed, for they
     are in derogation of the search for truth,” id. at
     710. The need for information for use in civil cases,
     while far from negligible, does not share the urgency
     or significance of the criminal subpoena requests in
     Nixon. . . .    [T]he right to production of relevant
     evidence in civil proceedings does not have the same
     “constitutional dimensions.” Id. at 711.

Cheney v. United States Dist. Court for the Dist. of Columbia,

542 U.S. 367, 384 (2004) (third alteration in original); see

also Judith Miller, 438 F.3d at 1149; Smith, 135 F.3d at 972.

                                 3.

     Like the Branzburg reporters, Risen has “direct information

. . . concerning the commission of serious crimes.”    Branzburg,

408 U.S. at 709.    Indeed, he can provide the only first-hand

account of the commission of a most serious crime indicted by

the grand jury –- the illegal disclosure of classified, national

security information by one who was entrusted by our government


                                 30
to protect national security, but who is charged with having

endangered it instead.              The subpoena for Risen’s testimony was

not issued in bad faith or for the purposes of harassment.                               See

id. at 707-08; id. at 709-10 (Powell, J., concurring).                           Risen is

not being “called upon to give information bearing only a remote

and tenuous relationship to the subject of the investigation,”

and there is no “reason to believe that his testimony implicates

confidential source relationships without a legitimate need of

law enforcement.”           Id. at 710 (Powell, J., concurring).                     Nor is

the government attempting to “annex” Risen as its “investigative

arm.”     Id. at 709 (internal quotation marks omitted).                             Rather,

the     government        seeks    to     compel     evidence      that      Risen     alone

possesses -- evidence that goes to the heart of the prosecution.

      The    controlling          majority    opinion     in     Branzburg       and     our

decision in Shain preclude Risen’s claim to a First Amendment

reporter’s        privilege       that     would     permit     him    to     resist    the

legitimate,       good     faith     subpoena      issued     to      him.      The     only

constitutional, testimonial privilege that Risen was entitled to

invoke      was     the     Fifth        Amendment     privilege        against        self-

incrimination, but he has been granted immunity from prosecution

for his potential exposure to criminal liability.                            Accordingly,

we    reverse     the     district       court’s     decision      granting      Risen     a

qualified First Amendment reporter’s privilege that would shield



                                             31
him   from     being    compelled     to   testify      in   these    criminal

proceedings.

                 III.   The Common-Law Privilege Claim

      Risen next argues that, even if Branzburg prohibits our

recognition of a First Amendment privilege, we should recognize

a qualified, federal common-law reporter’s privilege protecting

confidential sources. 8      We decline to do so.

                                      A.

      In the course of rejecting the First Amendment claim in

Branzburg,   the   Supreme    Court    also   plainly    observed    that   the

common law recognized no such testimonial privilege:

           It is thus not surprising that the great weight
      of authority is that newsmen are not exempt from the
      normal duty of appearing before a grand jury and
      answering    questions   relevant   to   a    criminal
      investigation.    At common law, courts consistently
      refused to recognize the existence of any privilege
      authorizing a newsman to refuse to reveal confidential
      information to a grand jury.

Branzburg, 408 U.S. at 685; id. at 693 (“[T]he evidence fails to

demonstrate that there would be a significant constriction of

the flow of news to the public if this Court reaffirms the prior

common-law   and   constitutional      rule   regarding      the   testimonial

obligations of newsmen” (emphasis added)); id. at 698-99 (“[T]he

common law recognized no such privilege, and the constitutional

      8
       The district court, having recognized a First Amendment
reporter’s privilege, did not address Risen’s claim to a common-
law privilege. See Sterling, 818 F. Supp. 2d at 951 n.3.


                                      32
argument was not even asserted until 1958”); Swidler & Berlin v.

United States, 524 U.S. 399, 410 (1998) (noting that “Branzburg

dealt with the creation of [a] privilege[] not recognized by the

common law” (emphasis added)); see also Judith Miller, 438 F.3d

at 1154 (Sentelle, J., concurring) (Branzburg is “as dispositive

of the question of common law privilege as it is of a First

Amendment privilege”); In re Special Proceedings, 373 F.3d 37,

44 (1st Cir. 2004) (Branzburg “flatly rejected any notion of a

general-purpose reporter’s privilege for confidential sources,

whether by virtue of the First Amendment or a newly hewn common-

law privilege”).

                                     B.

     Risen does not take issue with the clarity of Branzburg’s

statements regarding the state of the common law.            Rather, he

argues that Federal Rule of Evidence 501, as interpreted by the

Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), grants us

authority    to   reconsider   the    question   and   now   grant   the

privilege.   We disagree.

     Federal Rule of Evidence 501, in its current form, provides

that:

     [t]he common    law – as interpreted by United States
     courts in the   light of reason and experience – governs
     a claim of       privilege unless [the United States
     Constitution,     a  federal   statute,   or  the   rules
     prescribed by   the Supreme Court] provide[] otherwise.

Fed. R. Evid. 501 (emphasis added).

                                     33
      Congressional         enactment       of    Rule    501     postdates      Branzburg,

but the Rule effectively left our authority to recognize common-

law     privileges     in     status       quo.         The     Rule     implemented       the

previously recognized authority of federal courts to consider

common-law privileges “‘in the light of reason and experience.’”

Jaffee, 518 U.S. at 8 (footnote omitted).                          “The authors of the

Rule borrowed th[e] phrase from [the Supreme Court’s] opinion in

Wolfle v. United States, 291 U.S. 7, 12 (1934), which in turn

referred to the oft-repeated observation that ‘the common law is

not immutable but flexible, and by its own principles adapts

itself to varying conditions.’”                   Jaffee, 518 U.S. at 8 (footnote

omitted)    (quoting        Funk    v.     United       States,    290    U.S.     371,    383

(1933)).

      Indeed,      Rule     501    seems    to     be    more     notable    for    what    it

failed    to     do,   than       for    what     it    did.       The    proposed     Rules

originally “defined [nine] specific nonconstitutional privileges

which     the     federal     courts       [would        have     been    compelled        to]

recognize          (i.e.           required             reports,            lawyer-client,

psychotherapist-patient,                 husband-wife,             communications           to

clergymen, political vote, trade secrets, secrets of state and

other    official      information,         and        identity     of    informer)”       and

“provided that only those privileges set forth [therein] or in

some other Act of Congress could be recognized by the federal

courts.”        Fed. R. Evid. 501 advisory committee’s note; see also

                                             34
Jaffee, 518 U.S. at 8 n.7                 This exclusive list of enumerated

privileges was ultimately rejected.                   Instead, Congress “left the

law of privileges in its present state and further provided that

privileges shall continue to be developed by the courts of the

United States under” the “reason and experience” standard.                                   Fed.

R. Evid. 501 advisory committee’s note.

     Since enactment of Rule 501, the Supreme Court has twice

noted that, while not dispositive of the question of whether a

court     should        recognize     a    new       privilege,              the      enumerated

privileges proposed for inclusion in Rule 501 were “thought to

be either indelibly ensconced in our common law or an imperative

of federalism.”           United States v. Gillock, 445 U.S. 360, 368

(1980)    (declining       to    recognize      under          Rule    501       a   legislative

privilege       for     state      legislators            in     a     federal,         criminal

prosecution,       in    part,     because      it    was        not       one   of    the   nine

enumerated      privileges       recommended         by    the       Advisory        Committee);

see also Jaffee, 518 U.S. at 15 (noting that, unlike in Gillock,

the inclusion of the psychotherapist-patient privilege was one

of the nine, and supported the Court’s adoption of the privilege

under    Rule    501).          Notably   absent          from       the    nine      enumerated

privileges was one for a reporter-source relationship.

     In Jaffee, the Supreme Court recognized a psychotherapist-

patient    privilege       protecting     private          communications             that   took

place during counseling sessions between a police officer and a

                                           35
licensed    clinical       social    worker          following     a    fatal      shooting.

Applying Rule 501, the Court weighed the competing interests and

concluded that the plaintiff’s interest in obtaining evidence of

the confidential communications in the ensuing excessive-force

action    was     outweighed    by    the    patient’s          private      interest         in

maintaining confidence and trust with his mental health provider

and the public’s interest in protecting that privacy in order to

“facilitat[e]       the     provision        of       appropriate        treatment           for

individuals       suffering    the    effects          of   a   mental       or    emotional

problem.”       Id. at 11.     As noted above, the Court also relied, in

part, upon the fact that a psychotherapist-patient privilege was

one of the nine, enumerated privileges considered when Rule 501

was adopted and had found near unanimous support in state laws

as well.

       Contrary     to    Risen’s    claim       on    appeal,     Rule      501      and   the

Supreme Court’s use of it to recognize a psychotherapist-patient

privilege in Jaffee does not authorize us to ignore Branzburg or

support     our     recognition       of         a    common-law         reporter-source

privilege today.

       Clearly, neither Rule 501 nor Jaffee overrules Branzburg or

undermines its reasoning.            See In re Scarce, 5 F.3d at 403 n.3

(“We   discern     nothing     in    the    text       of   Rule       501   .    .   .     that




                                            36
sanctions    the   creation    of     privileges   by    federal     courts   in

contradiction of the Supreme Court’s mandate” in Branzburg.). 9

      “In rejecting the proposed Rules and enacting Rule 501,

Congress manifested an affirmative intention not to freeze the

law of privilege,” but “rather . . . to provide the courts with

the flexibility to develop rules of privilege on a case-by-case

basis.”      Trammel    v.   United    States,   445    U.S.   40,   47   (1980)

(internal quotation marks omitted); see also United States v.

Weber Aircraft Corp., 465 U.S. 792, 803 n.25 (1984) (“Rule 501

was adopted precisely because Congress wished to leave privilege

questions to the courts rather than attempt to codify them.”);

United States v. Dunford, 148 F.3d 385, 390-91 (4th Cir. 1998)

(same).     Rule 501 thus leaves the door open for courts to adopt

new   common-law       privileges,     and   modify     existing     ones,    in


      9
       Risen’s reliance upon our decision in Steelhammer, 539
F.2d at 377-78 (Winter, J., dissenting), adopted by the court en
banc, 561 F.2d at 540, also does not avail him.     In the panel
decision in Steelhammer, Judge Winter stated, in a footnote in
his dissenting opinion, his view that reporters “should be
afforded a common law privilege [under Rule 501] not to testify
in civil litigation between private parties,” but declined to
“prolong th[e] opinion by developing th[e] point.” Steelhammer,
539 F.2d at 377 n.* (Winter, J., dissenting).     Given the odd
manner in which the en banc court decided the case, it is
difficult to discern what if any precedential effect remains,
particularly since Branzburg did not preclude recognition of a
First Amendment privilege in the civil context and we recognized
one and adopted the three-part test in LaRouche. In any event,
we are satisfied that Judge Winter’s undeveloped dicta has no
effect one way or the other on the First Amendment or common-law
issues before us today.


                                       37
appropriate cases.             But nothing in Rule 501 or its legislative

history    authorizes          federal    courts      to    ignore       existing    Supreme

Court precedent.

       Even if we were to believe that Jaffee signals that the

Supreme    Court    might       rule     differently         on    the    existence      of    a

common-law reporter’s privilege today, we are not at liberty to

take    that     critical        step.          See        Rodriguez      de     Quijas       v.

Shearson/Am.      Express,       Inc.,    490       U.S.    477,    484    (1989)    (“If      a

precedent of this Court has direct application in a case, yet

appears    to    rest     on    reasons    rejected          in    some    other    line      of

decisions, the Court of Appeals should follow the case which

directly    controls,          leaving    to    this       Court    the   prerogative         of

overruling its own decisions.”).                    Under Risen’s view of Rule 501

and    Jaffee,    inferior       federal       courts       would    be    at    liberty      to

reconsider common-law privileges that have been rejected by the

Supreme Court, based upon the passage of time.                             Rule 501 does

not sanction such authority on our part.

       Here,     “[t]he    Supreme       Court       has     rejected      a    common     law

privilege for reporters” and “that rejection stands unless and

until     the     Supreme        court    itself        overrules         that      part      of

Branzburg.”        Judith       Miller,    438      F.3d     at    1155    (Sentelle,      J.,

concurring).       Just as the Supreme Court must determine whether a

First Amendment reporter’s privilege should exist, see Judith

Miller,    438    U.S.    at     1166    (Tatel,      J.,    concurring),         “only    the

                                               38
[Supreme     Court]       and   not    this   one    .     .    .   may   act    upon   th[e]

argument”     that    a    federal      common-law         privilege      should      now   be

recognized        under    Rule   501,    id.       at     1155     n.3   (Sentelle,        J.,

concurring).

                                              C.

       Even if we were at liberty to reconsider the existence of a

common-law reporter’s privilege under Rule 501, we would decline

to do so.

       As   the    Supreme      Court    made      clear       in   Jaffee,     the   federal

courts’ latitude for adopting evidentiary privileges under Rule

501 remains quite narrow indeed.                    Because they “contravene the

fundamental principle that the public has a right to every man’s

evidence,”        University      of     Pa.,      493     U.S.      at    189    (internal

quotation marks and alteration omitted), such privileges “are

not lightly created nor expansively construed, for they are in

derogation of the search for truth,”                        Nixon, 418 U.S. at 710.

“When considering whether to recognize a privilege, a court must

begin with ‘the primary assumption that there is a general duty

to give what testimony one is capable of giving, and that any

exemptions which may exist are distinctly exceptional, being so

many   derogations        from    a    positive      general        rule.”       Virmani    v.

Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) (quoting

Jaffee, 518 U.S. at 9).                 New or expanded privileges “may be

recognized ‘only to the very limited extent that permitting a

                                              39
refusal to testify or excluding relevant evidence has a public

good     transcending           the     normally          predominant          principle        of

utilizing all rational means for ascertaining truth.’”                                  Dunford,

148 F.3d at 391 (quoting Trammel, 445 U.S. at 50).

       Risen contends that the public and private interests in

recognizing a reporter’s privilege “are surely as great as the

significant        public        interest           at     stake        in      patient        and

psychotherapist communication.”                     Risen’s Brief at 50.                    But we

see several critical distinctions.

                                               1.

       First, unlike in the case of the spousal, attorney-client,

and      psychotherapist-patient                privileges              that         have     been

recognized,       the    reporter-source            privilege       does       not    share    the

same     relational      privacy        interests          or    ultimate        goal.         The

recognized privileges promote the public’s interest in full and

frank communications between persons in special relationships by

protecting the confidentiality of their private communications.

Jaffee,    518    U.S.     at    10.      A    reporter’s          privilege         might    also

promote    free    and     full       discussion         between    a    reporter       and    his

source,     but    Risen        does     not    seek        to     protect       from       public

disclosure the “confidential communications” made to him.                                      Id.

Risen published information conveyed to him by his source or

sources.       His primary goal is to protect the identity of the

person    or     persons     who       communicated         with     him       because       their

                                               40
communications violated federal, criminal laws.             See e.g., 1

McCormick on Evidence § 72 n.7 (Kenneth S. Broun ed., 7th ed.

2013) (requiring for all privileges that “[t]he communications

must originate in a confidence that they will not be disclosed”

(internal quotation marks omitted)).        In sum, beyond the shared

complaint that communications might be chilled in the absence of

a   testimonial     privilege,   Risen’s    proffered     rationale     for

protecting   his    sources    shares   little   in    common    with   the

privileges   historically      recognized   in   the    common   law    and

developed under Rule 501. 10

     We are also mindful that the Court in Branzburg considered

and was unpersuaded by a virtually identical argument that a

reporter’s privilege was necessary to prevent a chilling effect

on newsgathering.

          We are admonished that refusal to provide a First
     Amendment reporter’s privilege will undermine the
     freedom of the press to collect and disseminate news.
     But this is not the lesson history teaches us.      As
     noted previously, the common law recognized no such
     privilege, and the constitutional argument was not

     10
        This important distinction was also not lost on the
Branzburg dissent.     In the context of advocating a First
Amendment reporter’s privilege, the dissent also noted the
“longstanding   presumption   against  creation  of   common-law
testimonial privileges,” but distinguished common-law privileges
from the constitutional one sought because the former are
“grounded in an individual interest which has been found . . .
to outweigh the public interest in the search for truth rather
than in the broad public concerns that inform the First
Amendment.”    See Branzburg, 408 U.S. at 738 n.24 (Stewart,
dissenting) (internal quotation marks omitted).


                                   41
      even asserted until 1958.   From the beginning of our
      country the press has operated without constitutional
      protection for press informants, and the press has
      flourished.   The existing constitutional rules have
      not been a serious obstacle to either the development
      or retention of confidential news sources by the
      press.

Id. at 698-99; see also id. at 693 (“[T]he evidence fails to

demonstrate that there would be a significant constriction of

the flow of news to the public if this Court reaffirms the prior

common-law    and    constitutional      rule    regarding   the    testimonial

obligations of newsmen.”).

      Branzburg also weighed the public interest in newsgathering

against the public’s interest in enforcing its criminal laws:

      More important, it is obvious that agreements to
      conceal information relevant to commission of crime
      have very little to recommend them from the standpoint
      of public policy.       Historically, the common law
      recognized a duty to raise the “hue and cry” and
      report felonies to the authorities.      Misprison of a
      felony – that is, the concealment of a felony “which a
      man knows, but never assented to . . . [so as to
      become]   either   principal   or   accessory,”   4  W.
      Blackstone, Commentaries, was often said to be a
      common-law crime. . . .      It is apparent from [the
      federal statute defining the crime of misprison], as
      well as from our history and that of England, that
      concealment of crime and agreements to do so are not
      looked upon with favor.      Such conduct deserves no
      encomium, and we decline now to afford it First
      Amendment protection . . . .

Id.   at   695-97;    see   also   id.   at     695   (“Accepting    the   fact,

however,     that    an     undetermined      number    of   informants     not

themselves implicated in crime will nevertheless, for whatever

reason, refuse to talk to newsmen if they fear identification by

                                      42
a reporter in an official investigation, we cannot accept the

argument that the public interest in possible future news about

crime from undisclosed, unverified sources must take precedence

over   the   public    interest       in   pursuing    and   prosecuting      those

crimes reported to the press by informants and in thus deterring

the commission of such crimes in the future.”).

       We fail to see how these policy considerations would differ

in a Rule 501 analysis.             Unlike the individual privacy interests

in confidential communications shared by those protected by a

common-law privilege, “[t]he preference for anonymity of those

confidential informants involved in actual criminal conduct . .

., while understandable, is hardly deserving of constitutional

protection.”    Id. at 691.          The preference is equally undeserving

of protection under the common law.               Indeed, even those common-

law    privileges     that     do     protect   confidential     communications

between persons in special relationships have yielded where the

communication       furthers    or    shields   ongoing      criminal   activity.

See United States v. Zolin, 491 U.S. 554, 562-63                    (1989) (“The

attorney-client        privilege        must     necessarily        protect    the

confidences of wrongdoers, but the reason for that protection –

the centrality of open client and attorney communication to the

proper functioning of our adversary system of justice – ceases

to operate at a certain point, namely, where the desired advice

refers   not   to    prior     wrongdoing,      but   to   future    wrongdoing”)

                                           43
(internal quotation marks omitted); Clark v. United States, 289

U.S. 1, 15 (1933) (“A client who consults an attorney for advice

that will serve him in the commission of a fraud will have no

help from the law.        He must let the truth be told.”); Dunford,

148 F.3d at 391 (declining to decide whether parent-minor child

testimonial      privilege    exists   in    criminal    proceedings     because,

“even if such a privilege were to be recognized, it would have

to be narrowly defined and would have obvious limits, . . . such

as where . . . ongoing criminal activity would be shielded by

assertion of the privilege”).

     Just as the First Amendment and the common-law attorney-

client privilege do not “confer[] a license . . to violate valid

criminal laws,” Branzburg, 408 U.S. at 691, the common law would

not extend so far as to protect illegal communications that took

place between Risen and his source or sources in violation of

the Espionage Act.

                                       2.

     Risen’s      reliance    upon   state    statutes    and   decisions       that

have adopted a reporter’s shield also fails to persuade us that

we can or should create a federal common-law privilege.

     At    the   time    of   Branzburg,     “[a]   number   of   States    ha[d]

provided newsmen a statutory privilege of varying breadth.”                     Id.

at 689.      And, as Risen argues, nearly all of the remaining

states    have   since   “recognized     a    reporter’s     privilege     in   one

                                       44
context or another.”        Risen’s Brief at 55.         Generally speaking,

such    “policy     decisions   of   the    States    bear   on   the   question

whether federal courts should recognize a new privilege or amend

the coverage of an existing one.”              Jaffee, 518 U.S. at 12-13.

However, there is still no “uniform judgment of the States” on

the    issue   of   a   reporter’s   privilege   or     shield,   nor   was   the

privilege “among the nine specific privileges recommended by the

Advisory Committee in its proposed privilege rules.”                Id. at 14.

If anything, the varying actions of the states in this area only

reinforces      Branzburg’s     observation      that    judicially      created

privileges in this area “would present practical and conceptual

difficulties of a high order,” Branzburg, 408 U.S. at 704, that

are best dealt with instead by legislatures of the state and

federal governments.        As the Court noted in Branzburg:

            At the federal level, Congress has freedom to
       determine whether a statutory newsman’s privilege is
       necessary and desirable and to fashion standards and
       rules as narrow or broad as deemed necessary to deal
       with the evil discerned and, equally important, to
       refashion those rules as experience from time to time
       may dictate. There is also merit in leaving state
       legislatures free, within First Amendment limits, to
       fashion their own standards in light of the conditions
       and problems with respect to the relations between law
       enforcement officials and press in their own areas. It
       goes without saying, of course, that we are powerless
       to bar state courts from responding in their own way
       and construing their own constitutions so as to
       recognize a newsman's privilege, either qualified or
       absolute.




                                       45
Id. at 706; cf. Judith Miller, 438 F.3d at 1161 (Henderson, J.,

concurring) (noting that courts “should proceed as cautiously as

possible      when     erecting      barriers      between     us    and    the    truth,

recognizing that the Legislature remains the more appropriate

institution to reconcile the competing interests – prosecuting

criminal acts versus constructing the flow of information to the

public    –     that   inform       any    reporter’s     privilege        to    withhold

relevant information from a bona fide grand jury” (citation and

internal quotation marks omitted)).

       The Branzburg Court’s observations regarding the practical

difficulties of defining and managing a reporter’s privilege,

and its “unwilling[ness] to embark the judiciary on a long and

difficult journey to such an uncertain destination,” Branzburg,

408 U.S. at 703, are well-taken, and we see nothing in “reason

[or] experience” that would lead us to a contrary view today,

Fed.     Rule    Evid.       501.         Since    Branzburg,       additional      state

legislatures         have     exercised      their    “free[dom],       within      First

Amendment limits, to fashion their own standards in light of the

conditions and problems with respect to the relations between

law    enforcement          officials      and    press   in    their      own    areas.”

Branzburg, 408 U.S. at 706.                Despite continued efforts, however,

Congress has still not provided a reporter’s shield by federal

statute.        See id. at 689 & n.28 (noting the earlier federal

legislative attempts to provide a privilege).

                                             46
      We    decline      the     invitation       to    step    in   now     and    create   a

testimonial privilege under common law that the Supreme Court

has said does not exist and that Congress has considered and

failed to provide legislatively.                       If Risen is to be protected

from being compelled to testify and give what evidence of crime

he possesses, in contravention of every citizen’s duty to do so,

we believe that decision should rest with the Supreme Court,

which      can    revisit       Branzburg      and       the    policy       arguments       it

rejected,        or    with    Congress,     which       can    more    effectively      and

comprehensively          weigh    the      policy      arguments       for    and    against

adopting a privilege and define its scope.

                                IV.   The LaRouche Test
      For the foregoing reasons, we hold that there is no First

Amendment or federal common-law privilege that protects Risen

from having to respond to the government’s subpoena and give

what evidence he has of the criminal conduct at issue.                              We note,

however,     that       even     if   we     were       to     recognize      a     qualified

reporter’s privilege and apply the three-part LaRouche test to

the inquiry, as the district court did, we would still reverse.

      In LaRouche, we recognized a reporter’s privilege in civil

cases that can be overcome if (1) the information is relevant,

(2) the information cannot be obtained by alternative means, and

(3)     there     is     a     compelling     interest          in     the    information.




                                             47
LaRouche, 780 F.2d at 1139.                Here, the government has met all

three prongs.

                                           A.

       There is no dispute that the information sought from Risen

is relevant.       Moreover, it “can[not] be obtained by alternative

means.”      Id. at 1139.           The circumstantial evidence that the

government       has    been      able     to     glean     from       incomplete       and

inconclusive      documents,       and    from     the     hearsay      statements      of

witnesses    with      no   personal       or    first-hand       knowledge        of   the

critical aspects of the charged crimes, does not serve as a fair

or reasonable substitute.

                                           1.

       The district court held that the government had failed to

establish the second factor of the LaRouche test because it has

successfully obtained substantial circumstantial evidence that

Sterling is the source of the illegally-disclosed information.

Fundamentally, the holding appears to be grounded in the premise

that    circumstantial         evidence     of     guilt    should       serve     as   an

adequate    substitute      for    a     direct,    first-hand         account     of   the

crime   because     “‘circumstantial            evidence   is     no   less    probative

than    direct    evidence.’”          Sterling,     818     F.    Supp.      2d   at   956

(quoting Stamper v. Muncie, 944 F.2d 170, 174 (4th Cir. 1991)).

Because    the    district      court     believed    that      the    government       has

uncovered substantial circumstantial evidence that Sterling is

                                           48
guilty, the court’s ruling deprives the jury of the best and

only   direct   evidence      that   supports        the    prosecution       of   this

crime.

       It is true, of course, that a defendant cannot ordinarily

overturn a conviction based solely upon the claim that the jury

had only circumstantial evidence to consider.                   See United States

v. Bonner, 648 F.3d 209, 213 (4th Cir. 2011); Stamper, 944 F.2d

at 174.    But this does not mean that circumstantial evidence of

a fact presented to a jury will always be as convincing as

direct evidence of it, particularly where the identity of the

perpetrator     is    contested.          See   Bonner,        648    F.3d    at    214

(reversing conviction because “[w]hile it is possible to convict

a defendant solely on circumstantial evidence, in cases where

the identity of the perpetrator is in dispute, usually there is

some   specific      ‘identity’    evidence     or    uncontroverted          physical

evidence that links the defendant to the scene of the crime”).

Nor is it likely that a jury, charged with finding guilt beyond

a reasonable doubt, would equate circumstantial evidence of the

crucial facts with the direct testimony of the only witness with

first-hand knowledge of them.              The nature and strength of the

evidence is very different.              See 1 McCormick on Evidence § 185

(Kenneth   S.   Broun       ed.,   7th    ed.   2013)      (“Direct     evidence     is

evidence   which,      if    believed,      resolves       a   matter    in    issue.

Circumstantial evidence also may be testimonial, but even if the

                                          49
circumstances       depicted     are        accepted         as     true,        additional

reasoning     is     required    to     reach         the     desired       conclusion.”

(footnote omitted)).

     As the government correctly points out, “no circumstantial

evidence, or combination thereof, is as probative as Risen’s

testimony     or    as    certain     to     foreclose         the    possibility        of

reasonable doubt.”         Government’s Brief at 14.                   See, e.g., New

York Times Co. v. Gonzales, 459 F.3d 160, 170 (2d Cir. 2006)

(“[A]s the recipients of the disclosures, [the reporters] are

the only witnesses –- other than the source(s) –- available to

identify    the     conversations      in    question         and    to   describe      the

circumstances of the leaks. . . .                There is simply no substitute

for the evidence they have.”); Judith Miller, 438 F.3d at 1181

(Tatel,    J.,     concurring)     (noting      that        while    “special      counsel

appears already to have at least circumstantial grounds for a

perjury charge, if nothing else[,] [the reporter’s] testimony .

. . could settle the matter”).               Risen is the only eyewitness to

the crime.       He is inextricably involved in it.                  Without him, the

alleged     crime    would   not      have      occurred,         since     he    was   the

recipient of illegally-disclosed, classified information.                               And

it was through the publication of his book, State of War, that

the classified information made its way into the public domain.

He   is    the     only   witness      who      can     specify       the        classified



                                           50
information that he received, and the source or sources from

whom he received it.

       In any event, the LaRouche test does not ask whether there

is other evidence, circumstantial or direct, that the government

might rely upon as a substitute to prove guilt; it asks “whether

the information [sought from the reporter] can be obtained by

alternative        means.”        LaRouche,      780    F.2d   at    1139   (emphasis

added).    Clearly, it cannot be.                 There are no other witnesses

who can offer this testimony, nor is it found in any other form

of evidence.         Cf. Gonzales, 459 F.3d at 172 n.5 (noting that

such circumstances do not fall within “the paradigmatic case

where a newsperson is one of many witnesses to an event and the

actions and state of mind of the newsperson are not in issue”).

Other than Sterling himself, Risen is the only witness who can

identify Sterling as a source (or not) of the illegal leak.

                                                 2.

       Even if circumstantial evidence could serve as a reasonable

alternative to direct evidence, the circumstantial evidence in

this   case    does       not    possess   the    strength     the   district    court

ascribes      to     it     --    particularly         when    one   remembers     the

prosecution’s high burden of proof.

       Sterling was not the only CIA agent involved in Classified

Program No. 1.        Moreover, Sterling met with staff members of the

SSCI to voice complaints about the program not more than a month

                                           51
before      the   government    learned    that   Risen        had   the   classified

information, and Sterling claims to be in possession of evidence

that an SSCI employee was implicated in a previous unauthorized

disclosure        of   classified     information       that    made    its   way    to

Risen. 11

      During      these   proceedings,     Sterling      has    often      represented

that he intends to point his finger at these third parties as

the source of the leak. 12            The district court’s ruling, however,

would require the government to compel the testimony of every

other possible source, sources who could do little more than

assert their own privilege or offer a simple denial of guilt,

while      allowing    Risen,   the    only    person    who    can    identify     the

perpetrator or perpetrators, to protect his sources from the


      11
        See, e.g., J.A. 893 (asserting that Sterling has been
“given discovery that stated unequivocally that [one SSCI
staffer] was fired from her SSCI job for leaking information to
Mr. Risen”).
      12
       See J.A. 667 (stating that “[a]n obvious defense at trial
will be that any disclosure to the third party was done by
another person or by multiple individuals – and not by Mr.
Sterling”); J.A. 665 (noting that “while the Indictment alleges
Mr. Sterling had familiarity with ‘Classified Program No. 1’
since 1998, and knew James Risen since at least November 2001,
there is no indication that Mr. Risen came into possession of
any information relating to ‘Classified Program No. 1’ until
April 2003, less than a month after Senate staffers learned
about the Program” (citation omitted)); J.A. 667 (arguing that
“[t]he timing [of Sterling’s contact with the Senate staffers
and Risen’s contact with the CIA] is highly suggestive that it
was one of the staff members and not Mr. Sterling who unlawfully
disclosed classified information”).


                                          52
criminal consequences of their behavior.                             By depriving the jury

of    the    only     direct    testimony          that       can    link      Sterling   to   the

charged crimes and allowing Sterling to present argument that

several others could have been the primary source or sources,

the district court would allow seeds of doubt to be placed with

the jurors while denying the government a fair opportunity to

dispel those doubts.             As the government notes, the ruling would

open the door for Sterling to mislead the jury and distort the

truth-seeking function of the trial.

        The telephone records and e-mail messages, and the hearsay

statements by witnesses who were in contact with Sterling, which

were relied upon by the district court to uphold a reporter’s

privilege,       also    fail        to    serve       as    reasonable        alternatives     to

Risen’s first-hand testimony.

       Telephone records, e-mail messages, and the like indicate

that Risen and Sterling were communicating with one another.

However, it appears that none of the records contain classified

information,          and      the        contents          of     the     conversations       and

communications are otherwise largely unknown.                                  This category of

proof       is   an    obviously          poor     substitute            for    Risen’s   direct

testimony.          See e.g., Judith Miller, 438 F.3d at 1175 (Tatel,

J.,     concurring)         (“Insofar        as        the       confidential      exchange     of

information         leaves     neither       paper          trail    nor    smoking     gun,   the

great       majority    of     leaks        will       likely       be     unprovable     without

                                                  53
evidence    from     either      leaker       or    leakee.          Of    course,     in   some

cases,    circumstantial         evidence          such    as     telephone      records     may

point towards the source, but for the party with the burden of

proof,    particularly        the      government          in   a   criminal        case,   such

evidence will often be inadequate.”).

        The proffered hearsay testimony from the former CIA agent

and     Sterling’s      then-girlfriend             also       pales      in   comparison    to

Risen’s first-hand testimony.                      Even assuming that the hearsay

testimony would be admissible, which we need not decide today,

it is not a reasonable equivalent to Risen’s testimony.

      It is represented to us that Sterling’s girlfriend will

testify that Sterling told her at some unspecified point that he

had a meeting with “Jim” and, during a much later trip to a

bookstore, told her that Chapter 9 of State of War was about his

work in the CIA.             However, it is undisputed that Risen and

Sterling had been in contact about other matters, such as his

firing by the CIA, and the proffered testimony tells us nothing

about    the     substance       of    any     leak       of    classified       information.

Moreover, the persons to whom Sterling points as alternative

sources     of    the     leak        would    have        been     privy      to    the    same

information at about the same time, and Risen has not disclosed

whether    there     is   more        than    one    primary        source     of   classified

information.



                                               54
      It is also represented to us that a former CIA agent will

testify that Risen told him that Sterling was his source.                           This

characterization of the hearsay testimony, however, is much more

generous     than    warranted.       The    proffered       testimony       does   not

establish whether Sterling was the primary or only source of

classified information that made its way into State of War, nor

does it address the breadth of information found in the book.

It too is a poor substitute for Risen’s testimony.

      Additionally,      Sterling     has    indicated       that     he   will   offer

another defense to this hearsay testimony, either through cross-

examination     of     Risen    or    through        other        expert   testimony.

Specifically, Sterling has sought to present expert testimony

that “[j]ournalists commonly use techniques to disguise their

sources,” and that “statements made to third parties, including

prospective sources, purporting to identify other sources from

whom the author has obtained information are inherently suspect

and should not be accepted at face value.”                    J.A. 863.         Whether

or   not    Sterling    can    persuade     the   jury       on    this    point,   the

argument is not a lost one.           Unlike Risen, the former CIA agent

simply     cannot    testify   that   he     knows    Sterling       to    be   Risen’s

source, because he does not know that to be true.                           He cannot

refute the possibility that Risen might have falsely pointed the

finger at Sterling to protect his real source from scrutiny, or



                                        55
to entice the former CIA agent to provide similar or confirming

information.       Only Risen can answer these questions.

       Accordingly,      even     if    we    were       to    recognize        a    reporter’s

privilege that could deprive a jury of the only direct, first-

hand evidence of guilt or innocence, Risen’s statement to the

former CIA agent would be in violation of the confidentiality

agreement       that    he     relies        upon    to        create      the      privilege.

Notwithstanding any evidence of a standard journalistic practice

of deception in investigative techniques, Risen has waived any

privilege     by      violating       the     promise         of    confidentiality           and

disclosing the information to a third party.                              To rule otherwise

would not only allow journalists to protect their confidential

sources     in     criminal       proceedings,             but      would       also     permit

journalists      to     promise    confidentiality                 to   those       engaged   in

ongoing   criminal       conduct,       while       at    the      same    time      disclosing

their identities to anyone except law enforcement, grand juries

investigating the crimes, and juries called upon to determine

innocence or guilt.

       Clearly, Risen’s direct, first-hand account of the criminal

conduct    indicted      by     the    grand        jury      cannot       be    obtained     by

alternative means, as Risen is without dispute the only witness

who can offer this critical testimony.                           The information sought

from    Risen      is    not    reasonably          or        fairly      equaled      by     the



                                              56
inconclusive records of phone calls and emails, or the hearsay

testimony of the other witnesses.

                                           B.

     The government has also demonstrated a compelling interest

in presenting Risen’s testimony to the jury.

     “It     is     ‘obvious       and   unarguable’       that     no   governmental

interest is more compelling than the security of the Nation.”

Haig v. Agee, 453 U.S. 280, 307 (1981).                     This interest extends

to “protecting both the secrecy of information to our national

security and the appearance of confidentiality so essential to

the effective operation of our foreign intelligence service.”

United States v. Abu Ali, 528 F.3d 210, 247 (4th Cir. 2008)

(quoting CIA v. Sims, 471 U.S. 159, 175 (1985)).                         Clearly, the

government also has a compelling interest in obtaining direct

evidence     that       Sterling    compromised        these      critical   national-

security     interests       by     disclosing        classified     information    in

violation of validly-enacted criminal laws, and in presenting

this evidence to the jury charged with determining his guilt or

innocence.    See LaRouche, 780 F.2d at 1139.

     Risen’s testimony is the best evidence to prove Sterling’s

guilt   beyond      a    reasonable      doubt   to    a   jury    charged   with   the

search for the truth.               He is the only one who can identify

Sterling as the perpetrator of the charged offenses, and he is

the only one who can effectively address Sterling’s expected

                                           57
efforts to point the finger at others.                    If Risen identifies

Sterling as his source, he will have provided unequaled evidence

of guilt on this point, yet not deprived Sterling of his defense

that the information in Risen’s book was not, in fact, national

defense information at all.           And should Risen identify different

or   additional     sources    of    national   defense    information,    which

could exculpate Sterling, the government maintains an equally

compelling interest in obtaining the only available inculpatory

evidence against all who jeopardized the security of the United

States and at least one of its covert assets.

      To date, Sterling has not sought to compel Risen to testify

regarding    the    identity    of    his    source,   and   he    professes   to

“take[] no position” as to whether Risen has properly invoked a

reporter’s    privilege.             Defendant-Appellee’s         Brief   at   5.

Sterling has, however, seized upon the government’s unsuccessful

attempts to compel Risen’s testimony to repeatedly point out

“how little evidence the Government really has [against him] in

this case.”        J.A. 892.    Sterling even goes so far as to point

out the absence of direct evidence of his guilt, arguing that:

      [w]hile it is crystal clear that the Government
      believes . . . that Mr. Sterling was at least one of
      the sources for State of War, the Government admits
      now publicly that it has no direct evidence that Mr.
      Sterling ever told Mr. Risen anything about Classified
      Program No. 1.




                                        58
J.A. 892 (emphasis added); see also J.A. 893 (asserting that

“[t]he     Government   now     admits       that    its   case        is     entirely

speculative even as to venue.           It admits that it has ‘no direct

evidence, other than Risen’s testimony, that establishes where

the substantive disclosures of classified information occurred’

. . . .      In short, the Government is so fixated on compelling

Mr. Risen’s testimony –- or perhaps jailing him –- that it is

willing to concede that its case is weak and that it needs Mr.

Risen . . . to come to the rescue.” (emphasis added) (citation

omitted)).     Hardly a better argument could be made as to why the

evidence     sought   from    Risen    is    unavailable       from     alternative

sources and why the government has demonstrated a compelling

need for it.

                                        V.

     For the foregoing reasons, we reverse the district court’s

order granting Risen’s motion to quash his trial subpoena and

denying    the   government’s         motion    in    limine      to        admit   his

testimony, which would allow Risen to protect the identity of

the source of the classified, national security information that

the grand jury found probable cause to believe was illegally

leaked to Risen.




                                        59
GREGORY, Circuit Judge, writing for the court on Issues II and
                        III:

                 VI. District Court’s Suppression Order

      The     Government      challenges        the       district     court’s      order

excluding two of its witnesses as a sanction for violating a

discovery order.           The discovery order at issue, entered by the

district     court    with    the    parties’       consent,       provided    that    all

Giglio 13 material had to be turned over to the defense no later

than five calendar days prior to the start of trial.                          The trial

was initially slated to begin on September 12, 2011.                           However,

in   early    July    2011,   Sterling    and       the    Government       requested   a

continuance based on the complexity of the pretrial discovery

issues.      See 18 U.S.C. § 3161(h)(7)(B)(ii).                    The district court

agreed, rescheduling the trial to begin on October 17, 2011.

Thus, the new discovery deadline was October 12, 2011, five days

prior to the trial date.

      During    the    months       leading    up     to   trial,     the     Government

produced nearly 20,000 pages of discovery material, along with

various      items    in     electronic       format.         As     the    trial     date

approached, the Government continued to search the CIA’s files,

and at the eleventh hour it discovered impeachment materials in

the personnel files of six of its witnesses.                       Due to the risk of

      13
        Giglio v. United States, 405 U.S. 150 (1972) (requiring
the government to disclose to the defendant prior to trial any
evidence tending to impeach a prosecution witness).


                                          60
classified information being contained in the CIA’s files, all

of this discovery material had to be presented to the CIA for a

line-by-line classification review before the information could

be turned over to the defense.

       The CIA completed its line-by-line review of the disputed

material and provided it to the Government on the evening of

October 12, 2011.          The Government turned the information over to

the defense on the morning of October 13, 2011—the day after the

discovery period expired.

       At a pre-trial hearing on October 13, the defense did not

object to the late disclosure.               At a hearing on October 14, the

Friday before the Monday on which the trial was to commence, the

district court noted that the Government had not timely complied

with the discovery schedule.               The Government apologized for the

delay and thanked the defense for not objecting—at which point,

defense counsel lodged an objection.                      In addressing a possible

remedy,      the   defense       stated    the     court    could    grant   a   brief

continuance,       but     observed       that     this     option   would   not     be

particularly palatable to the court.                      The defense then stated

that   the    court      could    sanction       the   Government    by   striking    a

witness.      At that point the district court decided to strike two

witnesses, to “even up the playing field.”                   J.C.A. 577.

       The Government objected to the court’s order arguing that

the delay in production was not in bad faith.                    As an alternative

                                           61
sanction for the delay, the Government suggested that the court

grant    a    continuance         and   offered       to   assist      the     defense        in

locating      three       people    whose       unfavorable         ratings       of    a    CIA

colleague comprised a portion of the Giglio material as to that

colleague.         The    court    asked      the    defense    about       its     schedule,

seeking to determine whether counsel’s other obligations would

accommodate a brief continuance.                    However, the court had already

struck       two   crucial     prosecution           witnesses,       and     the       defense

preferred this sanction to a continuance.                           Thus, although the

court    subsequently        found      the     Government      did    not    act       in   bad

faith, it maintained its decision to strike the two witnesses.

       We have jurisdiction over the Government’s appeal of this

order pursuant to 18 U.S.C. § 3731.

       The Due Process Clause requires the prosecution to disclose

upon    request     evidence       that    is      favorable    to    the     defense        and

material to guilt or punishment.                     United States v. Higgs, 663

F.3d 726, 734-35 (4th Cir. 2011).                     Evidence is favorable if it

is exculpatory, Brady v. Maryland, 373 U.S. 83 (1963), or if it

may be used for impeachment, Giglio v. United States, 405 U.S.

150 (1972).         The government breaches its duty if it fails to

produce      evidence      that    it   is    obligated        to   turn     over       to   the

defense, or if it fails to timely comply with a discovery order

in   turning       over    required       evidence.        A    failure       to       disclose

violates due process only if the evidence in question (1) is

                                              62
favorable to the defendant because it is either exculpatory or

impeaching; (2) was suppressed by the government; and (3) is

material       in    that        its     suppression            prejudiced        the    defendant.

Strickler      v.        Greene,     527      U.S.    263,       281-82     (1999);      Vinson    v.

True, 436 F.3d 412, 420 (4th Cir. 2006).                                 Undisclosed evidence

is material when its cumulative effect is such that “there is a

reasonable probability that, had the evidence been disclosed to

the    defense,          the     result       of   the      proceeding       would       have   been

different.”              Kyles     v.    Whitley,         514     U.S.     419,    433-34    (1995)

(internal quotation marks and citation omitted).                                    A reasonable

probability is one sufficient to undermine confidence in the

outcome.       Id. at 434.

       When the government’s contumacious conduct involves a delay

in    producing          discovery,          rather       than    a   failure      to    turn   over

required       materials,            the      relevant           inquiry    is     “whether       the

defendant’s counsel was prevented by the delay from using the

disclosed material effectively in preparing and presenting the

defendant’s case.”                 United States v. Ingraldi, 793 F.2d 408,

411-12   (1st        Cir.      1986).          “As    long       as   evidence      is    disclosed

before it is too late for the defendant to make effective use of

it,    there    is        no   due      process       violation.”           United       States    v.

Russell,       971       F.2d      1098,       1112       (4th     Cir.     1992)       (discussing

allegation          of     delay        in    producing           exculpatory       evidence      in

violation of Brady).

                                                     63
     The    district    court   is    permitted,      but     not      required,   to

impose sanctions upon the government’s failure to timely comply

with a discovery order.         Fed. R. Crim. P. 16(d)(2); see United

States v. Lopez, 271 F.3d 472, 483 (3d Cir. 2001).                     If the court

decides to impose a sanction, it may:

     (A)      order that party to permit the discovery or
              inspection; specify its time, place, and manner;
              and prescribe other just terms and conditions;

     (B)      grant a continuance;

     (C)      prohibit   that   party         from        introducing       the
              undisclosed evidence; or

     (D)      enter any other     order      that    is    just     under   the
              circumstances.

Fed. R. Crim. P. 16(d)(2).             “A continuance is the preferred

sanction.”       United States v. Hammoud, 381 F.3d 316, 336 (4th

Cir. 2004) (en banc) (citing United States v. Gonzales, 164 F.3d

1285, 1292 (10th Cir. 1999)), vacated on other grounds, 543 U.S.

1097 (2005).

     When      the   government      fails    to     timely       provide     Giglio

material,      the   district   court’s      determination        of    whether    to

impose a sanction, and what sanction to impose, is reviewed for

abuse of discretion.        Hammoud, 381 F.3d at 336.                   “A district

court abuses its discretion only where it ‘has acted arbitrarily

or irrationally[,] has failed to consider judicially recognized

factors constraining its exercise of discretion, or when it has

relied   on    erroneous   factual     or    legal    premises.’”           L.J.   v.


                                       64
Wilbon, 633 F.3d 297, 304 (4th Cir. 2011) (quoting United States

v. Hedgepeth, 418 F.3d 411, 419 (4th Cir. 2005)); see James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).                     Likewise, a district

court abuses its discretion when it commits an error of law.

United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007); see

United States v. Wilson, 624 F.3d 640, 661 n.24 (4th Cir. 2010)

(“It is an abuse of discretion for the district court to commit

a legal error—such as improperly determining whether there was a

Brady     violation—and        that    underlying        legal       determination      is

reviewed de novo.”).

       In fashioning a remedy for a Giglio violation, the district

court    must    consider      several      factors:           the    reason    for    the

government’s       delay,        and     whether         the     government           acted

intentionally or in bad faith; the degree of prejudice, if any,

suffered by the defendant; and whether any less severe sanction

will    remedy   the    prejudice      to   the    defendant         and    deter    future

wrongdoing by the government.               Hammoud, 381 F.3d at 336 (citing

United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997));

Gonzales,    164   F.3d     at    1292.          “When   a     court       sanctions    the

government in a criminal case for its failure to obey court

orders,    it    must    use     the   least      severe       sanction      which     will

adequately punish the government and secure future compliance.”

Hastings, 126 F.3d at 317; see also United States v. Ivy, 83

F.3d 1266, 1280 (10th Cir. 1996).                 Indeed, it “‘would be a rare

                                            65
case where, absent bad faith, a district court should exclude

evidence.’”        Hammoud, 381 F.3d at 336 (quoting United States v.

Golyanzky, 291 F.3d 1245, 1249 (10th Cir. 2002)).

      Neither the district court nor Sterling suggests that the

Government acted in bad faith, and our review of the record

dispels any such notion.                It is clear that the sheer volume of

materials,     along        with        the     inherent        delays          involved      in

classification       review,       was     the       genesis    of       the    Government’s

error.       The    other       contributing         factor,       of    course,      was   the

Government’s failure to recognize the necessity of reviewing the

personnel files of likely witnesses at an earlier stage of the

discovery     process.             We     cannot,       of     course,          condone     the

Government’s oversight; as Sterling points out, the Government

had   many    months       to    examine       the     relevant         records,     and    the

evidence at issue here would have been an obvious source for

potential Giglio material.                    However, other factors guide our

decision.

      Sterling       suggests       that       because       the        material     was    not

submitted by the discovery deadline, he “could not possibly have

fully    investigated            and     developed        the        belatedly-disclosed

evidence     prior    to    the        start    of    trial,       three       to   four    days




                                               66
later.” 14       (Appellee Sterling’s br. at 6).             Although we do not

take lightly the impact of the Government’s delay on Sterling’s

ability to prepare, it is difficult to imagine that Sterling

could have fully prepared with regard to the Giglio material if

he received it on the last day of the discovery period, but

“could not possibly” have prepared having received the material

the next day, four days prior to trial.                   Sterling alleges that,

if he had received the Giglio material at an earlier time, he

could     have    thoroughly     investigated       the    information    and   the

witnesses to which that information pertained.                 As to the error,

the prejudice from the brief delay in disclosure could plainly

have been alleviated with a continuance.

     Both Sterling and the district court suggest the Government

should     have     produced     the    Giglio     material    earlier     in   the

discovery    process.          Although    efforts    at    earlier    review   and

disclosure        of    the    relevant        personnel    files      might    have

ameliorated       the   error,    and     would    certainly    have    eased   the


     14
       Indeed, the possibility of delay could not have come as a
surprise. The parties submitted to the district court a letter
accompanying   the   proposed   pretrial   order;   this  letter
characterized   the   proposed   discovery  schedule   as  “very
aggressive” given the plethora of classified materials, and
acknowledged that the parties might have difficulty meeting the
deadlines they jointly proposed.     The letter further provided
that the parties “have agreed to remain flexible with regard to
the proposed filing deadlines without having to change any of
the proposed hearing dates if at all possible.” (E.D. Va. PACER
docket entry 146, filed Aug. 4, 2011).


                                          67
defense’s      undoubtedly         hectic        pretrial       preparations,            the

Government was not obligated to accelerate its production to

complete discovery in advance of the deadline – a deadline to

which the parties and the district court agreed.                         We can only

find error in the Government’s one-day delay in production—not

in its perhaps ill-advised document review strategy, nor in its

failure to produce the materials at an earlier stage of the

discovery process.

       We are convinced, moreover, that the Government has been

adequately chastened, and that it will proceed more judiciously

in the future.        Further, as the Government is surely aware, any

similar future transgression will not be forgiven as easily.

       In   sum,    although     the   district     court       did   not    abuse       its

discretion by imposing a sanction, the sanction that it chose to

impose was simply too severe a response to conduct that was not

undertaken     in     bad    faith,     that       can     be    remedied         with     a

continuance, and that is unlikely to be repeated.                      As we said in

Hammoud, a continuance is the preferred sanction for a delay in

production of Giglio material.                  Nothing in the record suggests

that   Sterling     would    not   have     been    able    to    make      use   of     the

impeachment evidence if given a continuance.                     See Golyansky, 291

F.2d   at   1249-50.        We   discern    no     justification       for    the      more

severe sanction of striking witnesses.                   Accordingly, we reverse

the district court’s order striking the two witnesses.

                                           68
                            VII. CIPA Ruling

     Prior to trial the Government moved for a protective order,

pursuant to the Classified Information Procedures Act (“CIPA”),

18 U.S.C. app. 3 § 6, prohibiting the disclosure of classified

and sensitive information.        The list of protected information

included:

     [] The true name of any current or former covert CIA
     employee, or other information (such as a physical
     description) that reasonably could be expected to
     identify any current or former covert CIA employee,
     with the exception of those current or former covert
     CIA employees who testify using their full, true
     names.

     []    The true name of any CIA employee, covert or
     overt, who testifies using his or her last initial
     only.

J.C.A. 400.    The Government sought to protect the identities of

some of its witnesses — as relevant here, current or former CIA

operatives — through use of a screen or light disguises (wigs,

false beards, half glasses), use of a non-public entrance to the

courtroom,    and,   of   critical   importance   to   this   appeal,    by

allowing the witnesses to use last initials rather than their

full names (for example, “Mr. D.” instead of John Doe).

     The district court initially granted in part and denied in

part the Government’s request for security measures when the CIA

operatives testified.      The court agreed that the CIA operatives

would not have to reveal their names, and allowed that those

witnesses could use a non-public entrance to the courtroom.             The

                                     69
court stated that no sketch artists would be permitted in the

courtroom, but denied the Government’s request for the witnesses

to testify from behind a screen. 15                       The Government moved for

reconsideration           of   this     ruling,       stating        that    the    witnesses

needed      more       protection      than     was    permitted        by    the    district

court’s prior ruling.                 Specifically, the Government argued for

the   use    of    a    portable      screen       between     the    witnesses          and   the

public, 16 or permitting the witnesses to testify wearing light

disguises.             Sterling       opposed       the   Government’s         motion          for

reconsideration, stating that the Government had offered no new

information        justifying         reconsideration          of    the     court’s       prior

ruling.       Sterling         also    contended      that     the     security      measures

proposed by the Government would infringe upon Sterling’s right

to a public trial and to confront the witnesses against him.                                    He

contended     that       the    use    of     screens     or    disguises          was    unduly

suggestive        of    the    existence      of    national        defense    information,

problematic because one of his planned defenses was that the

information in Risen’s book was not, in fact, national defense

information.           Although Sterling expressed frustration with the

security measures previously imposed by the court, he did not

      15
        The court ordered that another witness, Human Asset No.
1, would be permitted to testify behind a screen.
      16
        The screen would shield the witnesses from public view;
Sterling, his counsel, and the jury would be able to see the
witnesses.


                                               70
ask the court to alter its ruling permitting the CIA operatives

to use partial names or pseudonyms.

        At the October 14 hearing, the court reversed course as to

both the screen and the witnesses’ names.             The court agreed to

permit a screen between the trial participants and the public

seating section of the courtroom. 17         And although the witnesses

could     use   pseudonyms   while    testifying,     the   Government     was

ordered to provide to defense counsel, Sterling, and the jury a

key with the witnesses’ true names. 18          The Government appealed

the portion of the order requiring it to provide a key with the

witnesses’ true names to Sterling and the jury.

     Sterling contends we do not have jurisdiction to review the

order requiring disclosure of the witnesses’ true identities to

Sterling and the jury.       The Government raises two bases for its

argument that the disclosure order is immediately appealable:

     17
         Sterling has        not     cross-appealed    as   to   the     order
permitting the screen.
     18
        The record reflects no legally significant change in
circumstances between the court’s initial order permitting the
name substitutions and its later order denying substitutions.
In the hearing on the Government’s motion for reconsideration,
the court stated that as long as the Government planned to
appeal the Giglio ruling, the court might as well rule on the
name issue, too, to give the Fourth Circuit a crack at it. The
Government implies that the court may have changed its ruling to
persuade the Government to narrow its witness list.     While the
district court did state that the Government might not need all
of the witnesses on its list, and instructed the Government to
call the absolute minimum number of witnesses it needed, we
decline to ascribe to the district judge any improper motive.


                                      71
18 U.S.C. § 3731, and CIPA section 7, 18 U.S.C. app. 3, § 7.

Section    3731,    as    recounted      at   Section    II.A,   does    not   confer

jurisdiction for an immediate appeal as to this issue because

the order is not one suppressing or excluding evidence.                           Thus,

we turn to CIPA.

                                          A.

      CIPA provides a framework for determining how to proceed

with discovery and admissibility of classified information in

criminal cases.          See United States v. Moussaoui, 591 F.3d 253,

281-82    (4th     Cir.    2010).        It    was   designed     to    balance    the

defendant’s      interest     in    a    fair    trial   and     the    government’s

interest in protecting national security information.                          United

States v. Passaro, 577 F.3d 207, 219 (4th Cir. 2009).                              When

classified       information       may    come    into    play    at    trial,     the

government may move for a hearing in the district court “to make

all      determinations        concerning        the     use,     relevance,        or

admissibility of classified information that would otherwise be

made during the trial or pretrial proceedings.”                    18 U.S.C. app.

3, § 6(a).         The district court’s order was, we conclude, an

order concerning the use of classified information encompassed

by CIPA section 6.

      It is true, as Sterling contends, that this is not a run-

of-the-mill CIPA appeal.             CIPA generally comes into play when

the defendant seeks to obtain, or plans to disclose, national

                                          72
security    information,       and      the    government           opposes     disclosure.

United States v. Moussaoui, 333 F.3d 509, 514 (4th Cir. 2003).

In Moussaoui, we held that an order permitting a deposition of

an enemy combatant witness was not immediately appealable under

CIPA.    We reasoned that CIPA was concerned with disclosure of

classified      information        at   trial,       rather     than    the     defendant’s

pretrial       discovery      of     classified           information.           Thus,        we

concluded,      CIPA    was   only      applicable         by   analogy,      and     in    that

instance CIPA § 7 did not authorize an interlocutory appeal.

      Following        Moussaoui,       we   considered         a   case   in    which       the

government       introduced        classified        information        at      trial,       and

relied upon CIPA in protecting that information from disclosure.

United States v. Abu Ali, 528 F.3d 210, 255 (4th Cir. 2008).

There,    the    government         used     classified         information         to     which

neither Abu Ali nor his counsel was privy.                      We held that:

      If classified information is to be relied upon as
      evidence of guilt, the district court may consider
      steps to protect some or all of the information from
      unnecessary public disclosure in the interest of
      national security and in accordance with CIPA, which
      specifically contemplates such methods as redactions
      and substitutions so long as these alternatives do not
      deprive the defendant of a fair trial.

Id.      The    procedural         posture     of        this   case    is,     of    course,

different       from    Abu   Ali;      Abu        Ali    was   an     appeal        following

conviction, not an interlocutory appeal.                            Nevertheless, it is

illustrative; evidence sought to be admitted at trial by the


                                              73
government, like that proffered by the defense, is subject to

the protections afforded by CIPA.

       The     order   at   issue    authorizes       disclosure     of   classified

information       at   trial,      unlike    the   order   in   Moussaoui,       which

involved the defendant’s pretrial discovery request.                      Cf. United

States v. Moussaoui, 336 F.3d 279, 280 (4th Cir. 2003) (Wilkins,

C.J., concurring in the denial of en banc rehearing) (noting

that CIPA § 6 applies to the use of classified information at

trial or in pretrial proceedings, and not to pretrial discovery

of classified information).                 Given our recognition in Abu Ali

that CIPA applies to evidence proffered by the government for

use    at    trial,    we   have    jurisdiction       over   this   interlocutory

appeal pursuant to Section 7 of CIPA, which provides:

       An interlocutory appeal by the United States taken
       before or after the defendant has been placed in
       jeopardy shall lie to a court of appeals from a
       decision or order of a district court in a criminal
       case authorizing disclosure of classified information,
       imposing sanctions for nondisclosure of classified
       information, or refusing a protective order sought by
       the United States to prevent the disclosure of
       classified information.

18    U.S.C.    app.   3,   § 7(a).         Having    determined     that   we   have

jurisdiction to review the district court’s order, we turn to

the merits, reviewing for abuse of discretion.                       Abu Ali, 528

F.3d    at    253-54   (applying      abuse      of   discretion     standard,    but

striking a balance between the defendant’s Confrontation Clause




                                            74
rights      and     the        government’s        need     to    protect        classified

information).

                                              B.

     There can be no doubt that the identity of CIA operatives

is sensitive information.                  The identity of CIA operatives is,

and always has been, subject to rigorous protection.                             See, e.g.,

In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C.

Cir. 2006).        To disclose the identities of CIA operatives, even

if   not    to     every       spectator      in    the   courtroom,       subjects     the

operatives to targeting by hostile foreign intelligence services

and terrorist organizations, and creates a grave danger to the

operatives, their families, and the operations in which they are

engaged.         Cf. United States v. Ramos-Cruz, 667 F.3d 487, 500

(4th Cir. 2012) (recognizing that defendant’s rights under the

Confrontation Clause to identifying information about witnesses

is not absolute; if the government shows an actual threat, the

district     court       has    discretion     to    determine         whether    effective

cross-examination          is     possible      if    the    witness’s      identity     is

concealed).

     We     find    no    abuse       of   discretion       in   the    district    court’s

decision to make available to Sterling and his counsel a key to

the witnesses’ true names.                 Sterling knows, or may know, some of

the witnesses at issue, and depriving him of the ability to

build      his     defense       in    this    regard        could      impinge    on   his

                                              75
Confrontation Clause rights.       See generally Maryland v. Craig,

497 U.S. 836, 848-49 (1990).         Moreover, and unlike the usual

cases where witnesses have been permitted to use pseudonyms, the

Government in this case has made no showing that Sterling or his

counsel pose an actual threat to the safety of these witnesses.

See Ramos-Cruz, 667 F.3d at 506; United States v. El-Mezain, 664

F.3d 467, 492 (5th Cir. 2011).          Thus, we discern no potential

for harm from disclosure of their identities to Sterling and his

counsel.     We cannot, however, take the same approach when it

comes to the jury.

     Sterling contends that the security measures proposed by

the Government will serve to impermissibly heighten the jury’s

sensitivity to the classified nature of the information Sterling

is accused of disclosing, increasing the odds of his conviction.

The district court understandably sought to limit to the extent

possible the elements of secrecy in this case, and we, too, are

mindful of the risk of tainting the jury if unduly suggestive

security measures are used at trial.         If a security measure is

inherently prejudicial, it may be employed “only where justified

by   an    essential   state   interest   specific   to    each   trial.”

Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986).           However, we can

discern no real benefit that would inure from providing the jury

with the full, true names of the CIA operatives at issue.             The

court sought to limit the risk of disclosure by proposing to

                                   76
instruct the jurors not to write down the witnesses’ true names,

but nothing will prevent a juror from remembering the names—and,

for that matter, the other classified information presented at

trial.       Unlike    the     information           Sterling     is    charged     with

disclosing      to   Risen,     though,        the    true      names   of   the    CIA

operatives      at   issue    will   do   nothing        to   enhance     the     jury’s

understanding of the facts and legal issues presented at trial.

And although we are mindful that the jurors are unlikely to

disseminate the names in contravention of the district court’s

instructions, it simply is not worth the risk to the lives of

these operatives (and their families and associates) to disclose

the operatives’ true names to anyone who does not have a genuine

need to know their identities.

     Although Sterling may dispute at trial that the information

at issue was classified, or that he was the person who passed to

Risen the information in Chapter Nine, there is no escaping the

fact that Sterling has been charged with disclosing classified

information, and the jury will be well aware of that fact from

the very outset of the proceedings.                  The district court has made

clear    that   it   will    instruct     the    jury     that    Sterling’s       guilt

cannot be inferred from the use of security measures in the

courtroom.       Balancing Sterling’s concerns with the very real

danger to the CIA operatives if their identities are disclosed,

we conclude that a proper jury instruction will alleviate any

                                          77
potential      prejudice,   and   that    the   district    court   abused     its

discretion in taking the more perilous approach of ordering that

the jury be given a key with the operatives’ true names.                     Thus,

we   reverse    this   portion    of   the    district    court’s   order.      We

affirm, however, the portion of the order permitting Sterling

and his counsel to receive the key with the operatives’ true

names.

                                         C.

      For the foregoing reasons, we reverse the court’s exclusion

of two Government witnesses, and affirm in part and reverse in

part the court’s ruling pursuant to CIPA.                We remand for further

proceedings consistent with this opinion.




                                         78
TRAXLER, Chief Judge, concurring in part and dissenting in part
                      as to Issues II and III:

      I concur in the majority’s decision as to Issue II, which

reverses    the    district      court’s      order    striking      two   of    the

government’s witnesses as a sanction for violating the discovery

order.     With regard to Issue III, I concur in the reversal of

the     district     court’s     order     requiring     disclosure        of    the

identities of the covert CIA agents and operatives (the “CIA

witnesses”) to the jury.          I respectfully dissent, however, from

the majority’s decision to affirm the district court’s order

requiring disclosure of this information to Sterling.

      Prior to trial, the government filed a motion under Section

6 of the Classified Information Procedures Act (“CIPA”), see 18

U.S.C. App. III, requesting permission to substitute pseudonyms

for the true names of the CIA witnesses.                  The government also

asked that a screen be used to shield the witnesses from the

public’s view, but not the view of Sterling or the jury.                         The

motions were accompanied by CIA and FBI declarations explaining

in detail that public disclosure would jeopardize the personal

safety of the witnesses, their families, and associates, and

would    jeopardize    the     effectiveness      of   the    CIA    witnesses    as

agents and operatives.           Additionally, foreign intelligence and

terrorist     organizations        have       a   significant        interest    in

identifying    CIA    agents     and     operatives,    and    use    information


                                         79
gleaned from trials to expose their activities, sources, and

methods.

      The district ruled that the CIA witnesses would be allowed

to testify using pseudonyms and from behind a screen, but that

their true identities would have to be disclosed to Sterling and

the jury.     The majority reverses the district court’s ruling as

to the jury, but affirms as to Sterling.              Because disclosure of

the   identities    of   the     CIA   witnesses    endangers    the    personal

safety of the witnesses and others associated with them, and

jeopardizes     the      witnesses’      effectiveness     as     agents     and

operatives, and there has been no demonstration that Sterling

cannot   effectively      cross-examine       the   witnesses    without    this

information, I would reverse the disclosure ruling as to both

the jury and Sterling.

                                        A.

      As a general rule, “the Confrontation Clause guarantees a

defendant     the   right   to     question    an   adverse     witness    about

identifying information, including his full name and address.”

United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012)

(citing Smith v. Illinois, 390 U.S. 129, 131 (1968)).                   However,

“th[e] right is not absolute,” and “a trial court may limit

cross-examination if the information sought could endanger the

witness.”     Id. (internal quotation marks omitted).                  “When the

government seeks to withhold a witness’s true name, address, or

                                        80
place of employment, it bears the burden of demonstrating that

the   threat     to    the   witness     is     actual      and     not     a    result     of

conjecture.”           Id.   (internal     quotation         marks     and       alteration

omitted).       Once the government meets this burden, the court must

“review relevant information and determine whether disclosure of

the   witness’s       identifying      information          is   necessary        to     allow

effective cross-examination.” Id.

                                           B.

      There is “no governmental interest . . . more compelling

than the security of the Nation,” and “[m]easures to protect the

secrecy    of    our     Government’s      foreign       intelligence            operations

plainly serve these interests.”               Haig v. Agee, 453 U.S. 280, 307

(1981); see also Snepp v. United States, 444 U.S. 507, 509 n.3

(1980).     “[T]he Government must tender as absolute an assurance

of confidentiality as it possibly can” to intelligence officers

and   sources,     C.I.A.     v.   Sims,   471    U.S.       159,     175       (1985),    and

courts    should      exercise     particular         caution     before        “order[ing]

[their]   identit[ies]        revealed,”        id.    at    176.      Protecting          the

classified identities of covert CIA agents and operatives is of

particular      concern      because     disclosure          places       not     only     our

national security at risk, but also the personal safety of those

who have committed their lives to the service of our country.

Indeed, Congress has criminalized such disclosure, see 50 U.S.C.

§ 421, given the “behavior’s ‘intolerable’ consequences:                               ‘[t]he

                                           81
loss of vital human intelligence which our policymakers need,

the     great    cost         to     the     American         taxpayer       of    replacing

intelligence resources lost due to such disclosures, and the

greatly      increased       risk     of    harm      which     continuing        disclosures

force    intelligence         officers       and      sources    to    endure.’”       In    re

Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1179 (D.C.

Cir. 2006) (Tatel, J., concurring) (quoting S.Rep. No. 97-201,

at 10-11 (1981); see also 50 U.S.C. § 403g (noting that “the

interests of the security of the foreign intelligence activities

of the United States” require that the names of CIA personnel be

protected).

       The actual threat to CIA witnesses has been well documented

in this case, and it appears that we all agree on this point.

As    the    majority       notes:         “To   disclose       the    identities     of    CIA

operatives, even if not to every spectator in the courtroom,

subjects       the        operatives       to     targeting       by     hostile     foreign

intelligence services and terrorist organizations, and creates a

grave       danger    to     the     operatives,         their        families,     and     the

operations in which they are engaged.”                            Majority op. at 75.

Accordingly,         we    unanimously       conclude      that       the   district      court

abused its discretion in requiring disclosure of the identifying

information to the jury.

       I depart from the majority’s view, however, that disclosure

to Sterling is nevertheless required because there has been no

                                                 82
showing that Sterling poses an actual threat to the safety of

the witnesses.            “[T]he appropriateness of using pseudonyms to

protect witnesses does not depend on whether the threat to the

witness comes directly from a defendant or from another source.”

Ramos-Cruz, 667 F.3d at 501 (internal quotation marks omitted).

But,   in   any        event,    the   grand      jury   in    this       case    has   found

probable cause to believe that Sterling has already revealed

classified information about a covert operation and a covert CIA

asset for publication in the public domain.                             In my opinion, no

more needs to be shown to demonstrate that disclosure of the

true identities of the CIA witnesses to Sterling poses an actual

and specific risk, sufficient to require serious inquiry into

the necessity of the disclosure for purposes of confrontation.

       Because the government seeks to protect the confidentiality

of the CIA witnesses’ identities to minimize the actual threat

disclosure poses to them, Sterling was required to demonstrate

that   disclosure         is    necessary    to    conduct         an    effective      cross-

examination.           See id. at 500; see also United States v. El-

Mezain, 664 F.3d 467, 492, 493 (5th Cir. 2011) (holding that the

defendants’       Confrontation          Clause    rights      were      not   violated     by

allowing Israeli security officers to testify using pseudonyms,

due    to   the        “serious    and     clear    need      to        protect   the    true

identities        of    [the    witnesses]     because        of    concerns      for    their

safety”     and    the    defendants’       adequate     opportunity           “to   conduct

                                             83
effective    cross-examination”);               United     States       v.    Lonetree,    35

M.J.    396,      410       (C.M.A.       1992)        (rejecting        argument       that

Confrontation Clause was violated by allowing a United States

intelligence agent to testify without disclosing his true name

because it endangered the agent and “was not essential to a fair

resolution of the cause”).

       I have much respect for the district court, which has dealt

with difficult questions arising from the classified nature of

this case.      On this particular point, however, I am constrained

to find an abuse of discretion.                   Given the dangers involved, the

district court should have granted the government’s motion to

withhold    disclosure        of    the    witnesses’       identifying        information

because    there      had    been    no    showing        that    the    disclosure       was

“necessary to allow effective cross-examination.”                              Ramos-Cruz,

667 F.3d at 500.            Instead, the district court merely ruled that

the identities of the CIA witnesses should be revealed because

“the defendant may know things about [a] witness,” and could

“turn to counsel and say:                 Hey, ask him about such-and-such on

cross-examination.”            J.C.A.      at     487.      The     majority      similarly

concludes      only     that       failure        to     disclose       the    identifying

information might “depriv[e] [Sterling] of the ability to build

his    defense”    and,       “in     this      regard      could       impinge    on     his

Confrontation Clause rights.”                   Majority op. at 75-76.               In my



                                             84
opinion, this is too speculative a basis upon which to require

disclosure of the identities of the CIA witnesses to Sterling.

       Sterling has been provided with discovery on all of the

witnesses    by   their    pseudonyms,     including      prior   statements,

interview    reports,     cables,   and    other     documents.       Sterling

therefore appears to already know the factual connection that

each witness has to his case.          See Ramos-Cruz, 667 F.3d at 501

(noting that “because the government disclosed to the defense

details of the[] witnesses before the trial, the defendants were

able    to   effectively     cross-examine         the    witnesses   without

threatening their safety” (internal quotations marks omitted)).

Because disclosure of the identities of the covert CIA witnesses

endangers their safety, and Sterling has not made the required

demonstration that he needs this information in order to conduct

a meaningful cross-examination of the witnesses, I would reverse

the    district   court’s     order    requiring         disclosure   of   the

identities of the CIA witnesses to Sterling as well.




                                      85
GREGORY, Circuit Judge, dissenting as to Issue I:

     Today    we   consider       the    importance           of   a    free        press    in

ensuring     the   informed       public        debate       critical     to        citizens’

oversight     of   their       democratically            elected       representatives.

Undoubtedly, the revelation of some government secrets is too

damaging     to    our     country’s       national           security         to     warrant

protection by evidentiary privilege.                   Yet the trial by press of

secret government actions can expose misguided policies, poor

planning,    and   worse.       More     importantly,          a   free    and       vigorous

press   is    an   indispensable         part     of     a    system      of    democratic

government.        Our    country’s        Founders          established        the     First

Amendment’s guarantee of a free press as a recognition that a

government     unaccountable        to     public        discourse        renders           that

essential element of democracy – the vote – meaningless.                                     The

majority reads narrowly the law governing the protection of a

reporter from revealing his sources, a decision that is, in my

view, contrary to the will and wisdom of our Founders.

     The district court ruled that under Branzburg v. Hayes, 408

U.S. 665 (1972), and subsequent precedent from this Circuit, the

Government    could      not   compel     Risen     to       reveal    his     source        for

chapter nine of his book, State of War.                       We review de novo the

district     court’s      legal     determination             that     the      reporter’s

privilege exists in the criminal context, and we examine the

district court’s application of that privilege to the instant

                                           86
facts under a deferential abuse-of-discretion standard. 1          Church

of Scientology Int’l v. Daniels, 992 F.2d 1329, 1334 (4th Cir.

1993); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th

Cir. 1986).

                                   A.

     The freedom of the press is one of our Constitution’s most

important and salutary contributions to human history.           See U.S.

Const. amend. I (“Congress shall make no law . . . abridging the

freedom of speech, or of the press[.]”).          Reporters are “viewed

‘as surrogates for the public,’” United States v. Criden, 633

F.2d 346, 355 (3d Cir. 1980) (quoting Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 573 (1980)), who act in the public

interest   by   uncovering   wrongdoing   by   business   and   government

alike.     Democracy without information about the activities of

the government is hardly a democracy.           The press provides “a

constitutionally chosen means for keeping officials elected by

the people responsible to all the people whom they were selected

to serve.”      Mills v. Alabama, 384 U.S. 214, 219 (1966).             A

citizen’s right to vote, our most basic democratic principle, is

rendered meaningless if the ruling government is not subjected

to a free press’s “organized, expert scrutiny of government.”



     1
       As the majority notes, we have jurisdiction pursuant to 18
U.S.C. § 3731.


                                   87
Justice Potter Stewart, Or of the Press, 26 Hastings L.J. 631,

634 (1975).

       The   protection      of    confidential    sources     is     “necessary     to

ensure   a    free    and    vital    press,     without    which     an    open    and

democratic society would be impossible to maintain.”                        Ashcraft

v.   Conoco,    Inc.,       218    F.3d   282,   287    (4th   Cir.    2000).        If

reporters are compelled to divulge their confidential sources,

“the free flow of newsworthy information would be restrained and

the public’s understanding of important issues and events would

be hampered in ways inconsistent with a healthy republic.”                         Id.;

see also Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981)

(“Compelling a reporter to disclose the identity of a source may

significantly interfere with this news gathering ability” and

threaten “a vital source of information,” leaving citizens “far

less   able    to    make    informed     political,     social,      and   economic

choices.”).

       Yet if a free press is a necessary condition of a vibrant

democracy, it nevertheless has its limits.                     “[T]he reporter’s

privilege . . . is not absolute and will be overcome whenever

society’s     need    for    the    confidential       information     in   question

outweighs      the   intrusion       on    the   reporter’s     First       Amendment

interests.”      Ashcraft, 218 F.3d at 287.              And we must be mindful

of the “fundamental maxim that the public . . . has a right to



                                          88
every man’s evidence.”                  Jaffee v. Redmond, 518 U.S. 1, 9 (1996)

(quoting United States v. Bryan, 339 U.S. 323, 331 (1950)).

      The public, of course, does not have a right to see all

classified       information            held     by    our     government.            But      public

debate    on     American          military       and     intelligence             methods      is   a

critical       element        of        public        oversight         of    our     government.

Protecting the reporter’s privilege ensures the informed public

discussion       of    important          moral,       legal,      and       strategic         issues.

Public debate helps our government act in accordance with our

Constitution and our values.                     Given the unprecedented volume of

information available in the digital age – including information

considered classified – it is important for journalists to have

the   ability     to        elicit      and    convey     to      the    public      an     informed

narrative filled with detail and context.                                    Such reporting is

critical to the way our citizens obtain information about what

is being done in their name by the government.

      A reporter’s need for keeping sources confidential is not

hypothetical.               The      record       on     appeal         contains          affidavits

proffered by Risen detailing the integral role of confidential

sources     in        the     newsgathering            process.              Scott        Armstrong,

executive        director          of     the     Information            Trust       and       former

Washington       Post        reporter,          points       to    three       ways       in     which

investigative journalism uses confidential sources:                                   “developing

factual    accounts          and     documentation           unknown          to    the    public,”

                                                 89
“tak[ing]     a    mix   of     known    facts        and   new    information        and

produc[ing]       an   interpretation      previously         unavailable       to    the

public,” and “publiciz[ing] information developed in government

investigations that has not been known to the public and might

well be suppressed.”             Joint App’x (J.A.) 531.               “It would be

rare,” Armstrong asserts, “for there not to be multiple sources

– including confidential sources – for news stories on highly

sensitive topics.”         Id.     In turn, “[m]any sources require such

guarantees of confidentiality before any extensive exchange of

information       is   permitted.”        J.A.    350.        Such    guarantees       of

confidentiality        enable    sources   to     discuss      “sensitive       matters

such as major policy debates, personnel matters, investigations

of improprieties, and financial and budget matters.”                       Id.       Even

in ordinary daily reporting, confidential sources are critical.

“[O]fficial       government     pronouncements        must   be     verified    before

they    are   published,”        and    this     is    frequently      done     through

discussion with officials not authorized to speak on the subject

but who rely on assurances of confidentiality.                     J.A. 352.     These

discussions can often lead to “unique and relevant, contextual

comments” made by the confidential source, comments that deepen

the story.    Id.

       The affidavits also recount numerous instances in which the

confidentiality promised to sources was integral to a reporter’s

development of major stories critical to informing the public of

                                          90
the government’s actions.             See, e.g., J.A. 378-80 (affidavit of

Dana Priest) (noting, among many stories, her reporting on the

existence and treatment of military prisoners at Guantanamo Bay,

Cuba; the abuse of prisoners in Abu Ghraib, Iraq; the existence

of secret CIA prisons in Eastern Europe; and the “systematic

lack of adequate care” for veterans at Walter Reed Army Medical

Center relied upon confidential sources).                         Carl Bernstein, who

has worked for the Washington Post and ABC News, writes that

without    his    confidential        source       known    as    “Deep     Throat,”    the

investigation into the Watergate scandal – the break-in of the

Democratic National Committee’s offices in the Watergate Hotel

and Office Building that led to the resignation of President

Nixon – would never have been possible.                          J.A. 361-62.      “Total

and    absolute    confidentiality”          was    essential        for    Bernstein    to

cultivate the source.           J.A. 362.

       For all that the record establishes, common sense tells us

the value of the reporter’s privilege to journalism is one of

the highest order.            See Riley v. City of Chester, 612 F.2d 708,

714     (3d       Cir.        1979)     (“The           interrelationship         between

newsgathering, news dissemination and the need for a journalist

to    protect     his    or    her    source       is    too     apparent    to   require

belaboring.”).          Indeed, reporters “depend[] upon an atmosphere

of    confidentiality         and   trust”    to    carry      out   their    mission,   a



                                             91
mission    critical    to    an    informed      and   functioning    democracy.

Jaffee, 518 U.S. at 10.

                                       B.

     Any consideration of the reporter’s privilege must start

with Branzburg, where the Supreme Court upheld, by a vote of

five to four, the compulsion of confidential source information

from reporters.       Branzburg v. Hayes, 408 U.S. 665 (1972).                 The

majority    opinion   highlighted      the    “longstanding     principle      that

‘the public . . . has a right to every man’s evidence,’ except

for those persons protected by a constitutional, common law, or

statutory    privilege.”       Id.   at    688    (citations    omitted).       The

opinion    also   stated    that   “news     gathering    is   not   without    its

First Amendment protections,” id. at 707, but the Court did not

specify exactly what those protections might encompass, although

it indicated that “[o]fficial harassment of the press” and bad

faith investigations might fall within the parameters of the

First Amendment’s protection of reporters.               Id. at 707-08.

     Further complicating matters is Justice Powell’s “enigmatic

concurring opinion,” id. at 725 (Stewart, J., dissenting), which

is in part at odds with the majority opinion he joined.                     In the

concurrence, Justice Powell emphasized “the limited nature of

the Court’s holding,” and endorsed a balancing test, according

to which “if the newsman is called upon to give information

bearing only a remote and tenuous relationship to the subject of

                                       92
the     investigation,”           then      courts        should         consider         the

applicability        of   the    reporter’s       privilege    on    a    “case-by-case

basis” by “the striking of a proper balance between freedom of

the press and the obligation of all citizens to give relevant

testimony     with     respect      to   criminal    conduct.”           Id.   at    709-10

(Powell, J., concurring).

       The full import of Justice Powell’s concurrence continues

to be debated.          Some analogize the Branzburg majority opinion to

a    plurality     opinion,      and     therefore       assert     Justice      Powell’s

concurrence as the narrowest opinion is controlling.                           See In re

Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1148 (D.C.

Cir. 2006) (describing appellants’ argument that in a five-to-

four decision, “the opinion of the least encompassing justice []

determines the precedent set by the decision”); cf. McKoy v.

North Carolina, 494 U.S. 433, 462 n.3 (1990) (arguing that a

separate opinion “cannot add to what the majority opinion holds,

binding the other four Justices to what they have not said; but

it    can   assuredly      narrow    what   the     majority      opinion      holds,     by

explaining       the      more    limited        interpretation       adopted        by    a

necessary member of that majority”) (Scalia, J., dissenting).

Others,     like   my     good   friends    in     the   majority,       treat      Justice

Powell’s concurrence as ancillary, see ante 22-24, and simply

rejoin that “the meaning of a majority opinion is to be found



                                            93
within    the     opinion       itself.”       McKoy,          494     U.S.      at       448     n.3

(Blackmun, J., concurring).

       Given    this     confusion,      appellate         courts       have      subsequently

hewed    closer    to     Justice      Powell’s          concurrence         –    and       Justice

Stewart’s dissent – than to the majority opinion, and a number

of     courts     have     since       recognized          a     qualified             reporter’s

privilege, often utilizing a three-part balancing test.                                         See,

e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.

1986)     (applying       the    reporter’s          privilege          in       the      criminal

context); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.

1983) (recognizing the qualified privilege in criminal cases);

Zerilli    v.     Smith,     656      F.2d     705,       711-13       (D.C.         Cir.       1981)

(applying the reporter’s privilege in a civil case).                                   Indeed, a

mere    five    years    after       Branzburg,      a    federal       court        of     appeals

confidently       asserted       that        the     existence          of       a     qualified

reporter’s      privilege       was    “no    longer      in    doubt.”           Silkwood        v.

Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977).                                  In short,

Justice     Powell’s       concurrence         and       the     subsequent            appellate

history have made the lessons of Branzburg about as clear as

mud.

       The Fourth Circuit, like our sister circuits, has applied

Justice Powell’s balancing test in analyzing whether to apply a

reporter’s      privilege       to    quash    subpoenas             seeking      confidential

source information from reporters.                    We first explicitly adopted

                                              94
Justice Powell’s balancing test in an en banc opinion in United

States    v.    Steelhammer,        539    F.2d   373,      376   (4th      Cir.   1976)

(Winter, J., dissenting), adopted by the court en banc, 561 F.2d

539, 540 (4th Cir. 1977).                  Then in LaRouche, we applied the

reporter’s      privilege       doctrine     to   a   civil   case,      again     citing

Justice Powell’s concurrence in Branzburg for authority.                              780

F.2d at 1139.           Following the lead of the Fifth Circuit, we

applied a three-part test to help us balance the interests at

stake in determining whether the reporter’s privilege should be

applied; that is, we considered “(1) whether the information is

relevant,      (2)     whether      the    information      can    be    obtained     by

alternative         means,    and    (3)    whether    there      is    a   compelling

interest       in     the     information.”           Id.     (citing       Miller     v.

Transamerican Press, Inc., 621 F.2d 721, modified, 628 F.2d 932

(5th Cir. 1980)).            We went on to find that there was no abuse of

discretion when the district court denied LaRouche’s motion to

compel discovery of a reporter’s sources because LaRouche “had

not exhausted reasonable alternative means of obtaining [the]

same information.”           LaRouche, 780 F.2d at 1139.

       In a subsequent case in the criminal context, In re Shain,

four     reporters      in     South      Carolina    asserted     the      reporter’s

privilege to protect information gleaned from interviews with a

state legislator.            978 F.2d 850, 851-52 (4th Cir. 1992).                    But

applying Justice Powell’s principles, we rejected the reporters’

                                            95
claim on the ground that none of the reporters asserted that the

interviews     were    confidential,           that   there     were       agreements    to

refuse revealing the identity of the interviewee, or that the

government sought to harass the reporters.                        Id. at 853.        Thus,

although the reporter’s privilege was not recognized in “the

circumstances of this case,” see id. at 854, it is clear to me

that we have acknowledged that a reporter’s privilege attaches

in criminal proceedings given the right circumstances.

      The most recent federal appellate court decision to address

the reporter’s privilege at length is In re Grand Jury Subpoena,

Judith Miller, 438 F.3d 1141, 1145-49 (D.C. Cir. 2006).                            In that

case, the court rejected the reporter’s privilege claim asserted

by   Judith    Miller       of    The   New    York      Times,      stating      that   the

Branzburg decision was dispositive.                   The majority there – as in

this case – reasoned that the Supreme Court had not revisited

the question of a reporter’s privilege under the First Amendment

after Branzburg, and that Justice Powell’s concurrence did not

detract    from       the        precedential      weight       of     the       majority’s

conclusion      that    there        was      no   First       Amendment         reporter’s

privilege,     at   least        when   there      was    no   suggestion         that   the

reporter      was   being        pressed   for     information        as     a   means   of

harassment or intimidation.                Id. at 1145-49.             In a thoughtful

concurrence, though, Judge Tatel pointed to the ambiguities of

the Branzburg decision, and noted that nearly every state and

                                              96
the District of Columbia has recognized a reporter’s privilege.

Nevertheless, Judge Tatel concluded that “if Branzburg is to be

limited or distinguished in the circumstances of this case, we

must leave that task to the Supreme Court.”                   Id. at 1166 (Tatel,

J.,   concurring).         And   although     he     felt    constrained      to    deny

applying a First Amendment privilege, Judge Tatel would have

held that Rule 501 of the Federal Rules of Evidence provides for

a reporter’s privilege (though on the facts of that case, the

privilege would have given way due to the extraordinary national

security    issue     involved).      See      id.     at    1177-78      (Tatel,   J.,

concurring).

                                         C.

       On this background, I turn to the question now before the

court:     Are there circumstances in which a reporter may refuse

to    testify    as   to   the   identity      of     one    of    his   confidential

sources, when the government seeks this information as part of a

criminal        investigation,     and        there     is        no     evidence    of

prosecutorial bad faith or harassment?                      Some appellate courts

have used a three-part test, essentially identical to the test

we announced in LaRouche in the civil context, to help determine

whether to apply the reporter’s privilege in criminal cases.

See, e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th

Cir. 1986); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.

1983).     They require the moving party, i.e. the government, “to

                                         97
make       a   clear     and   specific         showing”          that       the   subpoenaed

information        is    “highly       material       and    relevant,         necessary     or

critical to the maintenance of the claim, and not obtainable

from other available sources.”                  Burke, 700 F.2d at 77 (internal

citations and quotation marks omitted).                           Cf. 28 C.F.R. § 50.10

(policy in regards to the issuance of subpoenas to members of

the news media).

       I, too, would recognize a qualified reporter’s privilege in

the    criminal     context,       and    evaluate          the    privilege       using    the

three-part       test    enunciated       in    LaRouche          as    an   “aid”    to    help

“balance the interests involved.”                      780 F.2d at 1139.              I would

add a caveat to this general rule, however; in cases involving

questions of national security, if the three-part LaRouche test

is    satisfied     in    favor    of    the        reporter’s         privilege,     I    would

require        consideration      of    two    additional          factors:          the    harm

caused by the public dissemination of the information, and the

newsworthiness of the information conveyed. 2                             Cf. id. at 1139


       2
       By “newsworthiness,” I mean the value to the public of the
leaked   information   concerning   the   issues  of   the   day.
Necessarily included in the concept of “newsworthiness” is the
recognition that because this privilege is qualified, it will
likely deter some potential sources from disclosing their
information.    Because the newsworthiness of the information
cannot be adjudged by a court at the time of disclosure, a
source takes a chance that a court will not protect the source.
While this is somewhat speculative – not all reporters with
confidential sources are routinely subpoenaed – to the extent
this is a problem, the potential of this chilling effect


                                               98
(establishing a balancing test for the reporter’s privilege in

the civil context); In re Grand Jury Subpoena, Judith Miller,

438 F.3d at 1175 (Tatel, J., concurring) (stating that courts

must    “weigh         the   public      interest     in    compelling      disclosure,

measured     by    the       harm    the    leak    caused,     against     the   public

interest in newsgathering, measured by the leaked information’s

value”).     Thus, even when the LaRouche test favors recognizing

the reporter’s privilege, in matters of national security this

privilege        can     still      be     overridden      by   pressing     government

interests.        It is important to note that such a test does not

depart from established precedent, to the contrary, it adheres

to     Justice     Powell’s         concurrence      in     Branzburg      that   “[t]he

asserted claim to privilege should be judged on its facts by the

striking of a proper balance between freedom of the press and

the obligation of all citizens to give relevant testimony with

respect to criminal conduct.”                      408 U.S. at 710 (Powell, J.,

concurring).

                                              D.

       Whatever the limits of who may claim reporter’s privilege,

it is clear that Risen – a full-time reporter for a national



counsels a broad definition of “newsworthiness.”  On the other
hand, I would reject an absolute privilege because some
discussions should be chilled – precisely those that seriously
endanger individuals or our nation’s security without an
outweighing, compelling civic benefit.


                                              99
news publication, The New York Times – falls into the category

of people who should be eligible to invoke the privilege.                                I

also       note    that     Risen    has    been     offered      immunity       by     the

Government, so there is no Fifth Amendment issue with regard to

compulsion of his testimony.                  The threshold inquiries having

been satisfied, I turn to the question of whether the reporter’s

privilege         should    apply    in    this    case,    applying     the     test    I

announced herein. 3

                                            1.

       The inquiry when applying the first LaRouche factor is the

relevance of Risen’s testimony to the Government’s case.                          Unlike

the    Branzburg         case,    where    the    reporters      had    knowledge       of

suspected crimes that could be seriously damaging to individuals

and the government, the Government here seeks a conviction for

the very act of disclosure.                The Government claims that Risen’s

testimony is valuable to its case against Sterling for revealing

national defense secrets for two reasons:                        establishing venue

and    supporting         the    Government’s     case     on   the    merits.        With

respect      to    the     former,   the    Government      bears      the   burden     of

proving by a preponderance of the evidence that “the essential

conduct elements” of the charged offenses occurred within the

       3
       I emphasize that these factual assertions have yet to be
proven, and my analysis would not, even if it were the majority
opinion, constrain the jury’s resolution of disputed factual
issues at trial.


                                            100
Eastern District of Virginia.                  United States v. Ebersole, 411

F.3d       517,   524    (4th     Cir.   2005)     (internal   quotation        marks

omitted).

       The record suggests the Government can show that Risen made

phone calls from the Eastern District of Virginia to Sterling’s

Missouri residence.           Furthermore, emails exchanged with Sterling

used a server located in the Eastern District of Virginia.                        Of

course, in order to prove venue, the Government must show that

classified         information           was      disclosed     during          these

communications.          It appears venue can be established without

requiring Risen to disclose his confidential sources, limiting

the relevance of his testimony.                   And as addressed below with

regard to the value of Risen’s testimony to the Government’s

case-in-chief,          the     circumstantial      evidence   that     classified

information was discussed appears to be strong, 4 indicating that

Risen’s testimony regarding his confidential sources is by no

means pertinent to the Government proving Sterling guilty.

                                           2.

       Turning     to     the     second       LaRouche   factor,     whether     the

information sought — the identity of the source of the leak — is

       4
       In determining the relevance of the evidence sought to be
protected by the reporter’s privilege and whether the Government
may prove its allegations by other means, we necessarily make a
preliminary inquiry into the merits of the case, although such
an inquiry is not equivalent to a judgment as a matter of law.



                                           101
available         by        other    means,           the   Government         claims     Risen’s

testimony         is    a    critical          part    of   its    case       against    Sterling

largely because Risen is the only eyewitness to the crime; the

other        evidence          is        circumstantial. 5                The      Government’s

demonstration           of     its       good-faith         effort       to    obtain     similar

evidence through other means is a necessary part of its showing.

See United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.

1981)       (requiring        a     demonstration           that   the     party      seeking   to

overcome the reporter’s privilege “demonstrate that he has made

an   effort        to       obtain       the     information       from       other     sources”)

(quoting      Criden,         633    F.2d       at    358-59).       But      it   is   precisely

because of the Government’s diligence that it doth protest too

much.        An    analysis         of   the     circumstantial          evidence       shows   the

Government’s case is not as weak as it or the majority claims,

limiting the need for Risen’s testimony.


        5
       As the district court stated, the privilege should extend
to information that would lead the government to the identity of
the confidential source. See United States v. Sterling, 818 F.
Supp. 2d 945, 955 (E.D. Va. 2011) (“Courts have long held that
the reporter’s privilege is not narrowly limited to protecting
the reporter from disclosing the names of confidential sources,
but also extends to information that could lead to the discovery
of a source’s identity.”).    That the coverage of the privilege
should extend so far is commonsensical; otherwise, the questions
could be tailored to swallow the privilege. Cf. New York Times
Co. v. Gonzales, 459 F.3d 160, 168 (2d Cir. 2006) (recognizing
that the subpoena of a reporter’s phone records “is a first step
of an inquiry into the identity” of the source and that a
balancing test should be applied to determine whether the
reporter’s privilege covers the records).


                                                     102
       First, the Government can demonstrate that Sterling showed

Risen’s book to Sterling’s then-girlfriend in a bookstore and,

without so much as opening it, Sterling told her that chapter

nine discussed his work at the CIA. 6                     The book itself reveals

details          about   Classified     Program     No.    1   that    tend   to   link

Sterling to chapter nine.              For example, sections of the chapter

are told from the point of view of the case officer responsible

for Human Asset No. 1 – which was Sterling’s responsibility –

and    the        Government    asserts    that     the    chapter     describes    two

classified          meetings    at    which    Sterling     was   the    only    common

attendee.

       Second, the Government has the aforementioned phone records

demonstrating that Sterling and Risen called each other seven

times between February 27 and March 31, 2003.                          The Government

also       has    evidence     that   Sterling      attempted     to    delete   emails

referencing meetings and shared information between Sterling and

Risen, and parts of the emails were indeed obliterated.                          In one

email that was not fully deleted, Risen asks Sterling, “Can we

       6
       The Government suggests that the bookstore witness is now
(or was for a time) Sterling’s wife, and argues that her
testimony might not be admitted at trial because she might
assert a testimonial privilege.    See Trammel v. United States,
445 U.S. 40, 53 (1980) (only the witness-spouse can assert the
spousal privilege).     Whether this testimony is subject to
privilege is a question for the district court in the first
instance, and I seek neither to answer this question nor to
remove from the district court’s purview the ability to decide
whether the testimony could properly be admitted.


                                              103
get together in early January?”                       J.A. 40.        In another, Risen

tells Sterling “I want to call you today[.]                         I’m trying to write

the story . . . .                I need your telephone number again.”                      J.A.

40.    Risen sent another email to Sterling, this time stating

“I’m sorry if I failed you so far but I really enjoy talking to

you and would like to continue,” J.A. 41, an apparent reference

to The New York Times’s refusal to publish Risen’s story on

Classified Program No. 1.

      Third,      the      prosecution         expects      to    elicit    at     trial    the

testimony        of   a    former       United    States         intelligence         official.

Risen allegedly told this official, who occasionally discussed

Risen’s     reporting         with      him,    that     Sterling     was     involved      in

recruiting a source for “an important operation” that “targeted

[]    the   Iranian          nuclear      program,”         and     that    Sterling       was

frustrated       by    the    perceived        lack    of    recognition         he    received

within the CIA for his efforts.                   Joint Classified App’x (J.C.A.)

622, 624-25.          This official, the district court wrote, “told the

grand jury that Risen had told him that Sterling was his source

for information about the Iranian nuclear weapons operation.”

      Finally, the Government can also link Risen and Sterling in

the reporting of classified information on a prior occasion:

Risen’s March 2002 New York Times article entitled “Fired by the

C.I.A.,     He    Says       Agency     Practiced      Bias”       noted    that      Sterling

provided    Risen         with    one   of     Sterling’s        classified      performance

                                               104
evaluations.          In   short,      the     Government       has    made      “[a]ll

reasonable attempts . . . to obtain information from alternative

sources” as recommended by the Department of Justice’s internal

guidelines   on   subpoenas      for    testimony    by       news    media,   see    28

C.F.R. § 50.10.       The Government’s efforts have yielded multiple

evidentiary avenues that, when presented together, may be used

to establish what the Government sought to establish solely with

testimony      from        Risen—that         Sterling        leaked      classified

information,      rendering         Risen’s      testimony           regarding       his

confidential sources superfluous.

                                         3.

     The third LaRouche factor is whether the Government has a

compelling   interest       in   the   information       it    seeks    from     Risen.

Suffice it to say, the prosecution’s body of evidence without

Risen’s testimony is strong. 7           The frequency of the phone calls

between Risen and Sterling, the forensically retrieved emails,

the stories published in The New York Times, the testimony of a

former United States intelligence official, and the bookstore

eyewitness     provide     extensive     circumstantial         evidence       of    the

crime and the court’s venue.                  While Sterling may argue that


     7
       There may yet be further motions in limine challenging
some of the evidence that the Government may wish to present at
trial.   I do not suggest a view one way or the other on the
merits of any potential challenges; my analysis is limited to
Risen’s claim of reporter’s privilege.


                                        105
other       staff    members      who    had        access    to    national     security

information         could   have       been    the     source      of   the    leak,   the

Government, as it acknowledges, may simply call to the stand

those staff members to ask whether they were Risen’s source.

     While the prosecution would undoubtedly be better off with

Risen’s testimony – none of the remaining pieces of evidence is

a   smoking       gun   –   the    balancing         test     cannot    mean    that   the

privilege yields simply because “no circumstantial evidence, or

combination thereof, is as probative as Risen’s testimony or as

certain      to     foreclose     the    possibility         of    reasonable    doubt.” 8

Brief for the United States at 14.                           The specificity of the

information contained in chapter nine of Risen’s book, coupled

with the limited universe of individuals who had access to the

information, the circumstantial evidence, and proof by negative

implication,         compose       a    reasonably           strong     case    for    the

Government.         As we have stated before, “circumstantial evidence

is no less probative than direct evidence.”                         Stamper v. Muncie,

944 F.2d 170, 174 (4th Cir. 1991).                     I would therefore conclude


        8
       My good colleagues observe that circumstantial evidence is
not always as effective as direct evidence.          (Opinion of
Traxler, C.J., at 49).    I do not disagree.   Rather, I observe
that in this case, the circumstantial evidence proffered by the
Government appears strong enough for the jury to draw a
conclusion regarding the identity of Risen’s source.    I do not
dispute that direct evidence would be more effective than
circumstantial evidence to establish the identity of the source,
but other factors are at play.


                                              106
that the Government has failed to demonstrate a sufficiently

compelling need for Risen’s testimony.

                                              4.

      Satisfied     that       the     LaRouche          factors     weigh     in    favor   of

Risen’s      privilege        from     testifying             as    to   his    confidential

sources,     I    turn       next    to    newsworthiness            and     harm,   the     two

additional factors I suggest should apply in a case involving

national     security        information.            On       the   present     record,      the

newsworthiness          of     the     leaked        information           appears     to     be

substantial.       The information contained in chapter nine of State

of War covers the United States intelligence community’s efforts

concerning the development of the Iranian nuclear program.                                   The

chapter    questions         the     competence      of       the    CIA’s     management     of

Classified Program No. 1.                 Chapter nine discusses a plan to have

a   former    Russian        scientist      give         Iranian     officials       incorrect

nuclear weapon design specifications in an attempt to determine

the status of the Iranian nuclear weapons program, and to stall

or thwart the progress of that program, perhaps for years.                                   The

blueprints       were    so    deficient,       the        chapter       opines,     that    the

Russian scientist spotted a flaw almost immediately.                                 Although

the scientist explained this flaw to the CIA, Risen writes, the

CIA   proceeded     with       the    plot.         In    a    letter      accompanying      the

blueprints, the Russian scientist disclosed to the Iranians the

flaw he spotted in the plans.                 Because the Iranians had received

                                              107
scientific help from Russian and Chinese scientists, the chapter

continues, and because Iran already had black market nuclear

blueprints,        Iranian    scientists      could       likely    differentiate    the

good   from   the       flawed   in    the    American      blueprints.        In   other

words, Risen asserts, Classified Operation No. 1 may have helped

Iran advance its nuclear program.                    The chapter also describes

the inadvertent disclosure to an Iranian double-agent of the

identities of every spy the CIA had within Iran – information

that was then turned over to Iranian security officials, who in

turn arrested a number of those agents.                         Finally, the chapter

recounts the CIA’s inability to obtain more than “fragmentary

information about Iran’s nuclear program.”                      J.S.A. 208.

       This information is not extraneous.                   Quite the opposite, it

portends      to     inform      the     reader      of     a    blundered     American

intelligence mission in Iran.                Since the United States’ invasion

of Iraq in 2003, our nation’s focus has shifted to the nuclear

capabilities of Iran, specifically whether Iran is attempting to

build a nuclear bomb and how soon it can achieve the technical

capabilities to do so.                 State of War was released in 2006 –

three years after the Iraq invasion.                        The Iraq invasion was

undertaken in part based on concerns that Iraq had developed

weapons     of      mass     destruction,          possibly        including    nuclear

weaponry.     See J.S.A. 182.           The apparent lack of weapons of mass

destruction        in    Iraq,     it     has      been     argued,     highlights     a

                                             108
significant failure of United States intelligence.                                See J.A.

381.      Risen himself contributed to our understanding of this

alleged failure.          See James Risen, “C.I.A. Held Back Iraqi Arms

Data, U.S. Officials Say,” The New York Times, July 6, 2001, at

A1; J.S.A. 218-232 (chapter nine of State of War).

       In a similar vein, Risen’s investigation into the methods

and    capabilities       of    the    United      States     foreign       intelligence

community with respect to the Iranian nuclear program is surely

news   of     the    highest    import,     particularly          given    the    apparent

contretemps made in the National Intelligence Estimate of 2007.

See    National         Intelligence        Council,        National        Intelligence

Estimate,       Iran:        Nuclear      Intentions       and    Capabilities          (Nov.

2007),         http://www.odni.gov/press_releases/20071203_release.pdf

(asserting with “high confidence” that Iran in 2003 halted its

nuclear       weapons    program,      despite      2005     intelligence         estimate

noting that Iran is “determined to develop nuclear weapons”).

Significant         public     speculation        about    the     possibility          of     a

conflict with Iran has repeatedly surfaced in recent years.                                  See

Seymour M. Hersh, “Iran and the Bomb,” The New Yorker, June 6,

2011, http://www.newyorker.com/reporting/2011/06/06/110606fa.fac

ts.hersh (“There is a large body of evidence . . . including

some     of      America’s         most     highly        classified        intelligence

assessments,        suggesting      that    the     United       States    could    be       in

danger    of    repeating      a   mistake    similar       to    the     one    made    with

                                            109
Saddam Hussein’s Iraq eight years ago – allowing anxieties about

the policies of a tyrannical regime to distort our estimations

of the state’s military capabilities and intentions.”).               Risen’s

reporting on Iran’s nuclear capabilities is also particularly

relevant    given   the    criticism    of   the   national   press   for   its

perceived    failure      to   scrutinize    United    States   intelligence

regarding Iraq’s weapons capabilities.             See James Risen, “C.I.A.

Held Back Iraqi Arms Data, U.S. Officials Say,” N.Y. Times, July

6, 2004, at A1.        Indeed, it is hard to imagine many subjects

more deserving of public scrutiny and debate. 9

     As a final step in the First Amendment inquiry, I would

require the district court to balance the newsworthiness of the




     9
       The district court declined to consider newsworthiness as
a factor in its ruling on reporter’s privilege because no court
had identified newsworthiness as a factor in the balancing test.
The district court stated that considering newsworthiness would
cause the court to “serve as editor-in-chief, unilaterally
determining whether reporting is sufficiently accurate or
newsworthy as to be deserving of First Amendment protection.”
United States v. Sterling, 818 F. Supp. 2d 945, 954 (E.D. Va.
2011). In the absence of precedential case law identifying this
factor, it is understandable that the district court declined to
consider newsworthiness.     But I do not doubt the district
court’s ability to determine the value to the public of
particular news stories.   Courts already conduct this analysis
in other First Amendment contexts; for example, when assessing
restrictions on government employee speech. See, e.g., City of
San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam) (requiring
courts to evaluate the “legitimate news interest,” meaning the
“value and concern to the public at the time of publication”).



                                       110
information against the harm caused by the leak. 10                The present

record is not well developed on this point.               The district court

understandably declined to conduct fact-finding on this issue

because this factor had not been identified in prior case law.

Moreover, the Government has not clearly articulated the nature,

extent,   and   severity    of   the   harm   resulting    from    the   leak. 11

Without such evidence, it is impossible for a reviewing court to

determine   whether   the   First      Amendment   interest   in    presenting

newsworthy information to the public — if indeed the district

court finds the information newsworthy — is outweighed by the

consequences of the leak.           Moreover, although I recognize the

    10
       I would find a reporter’s claim of privilege to be at its
strongest when the disclosure at issue covers governmental
methods and policies that challenge what is moral, legal, and,
broadly speaking, strategic for our government to do. Cf. In re
Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1174 (D.C.
Cir. 2006) (Tatel, J., concurring in the judgment) (“It seems
hard to imagine how the harm in leaking generic descriptions of
[a top-secret satellite] program could outweigh the benefit of
informing the public about billions of dollars wasted on
technology considered duplicative and unnecessary by leading
Senators from both parties.”).     In contrast, I would find it
unlikely that a reporter could avail himself of the privilege
when the leak concerns “the design for a top secret nuclear
weapon, for example, or plans for an imminent military
strike.”).   Id. at 1173 (Tatel, J., concurring).     Such leaks
convey little information useful to the public in its civic role
yet present great risks to national security.
    11
        I am well aware that the revelation of classified
government information can surely be among the most harmful of
crimes.   However, it is not the fact that the information is
classified that renders the crime so harmful; the harm derives
from the content of that information, and what is, or may be,
done with the information if it falls into the wrong hands.


                                       111
difficultly of evaluating the government’s interests in a case

involving national security information, I am also mindful of

the    fact      that       “[t]he    First     Amendment      interest        in     informed

popular debate does not simply vanish at the invocation of the

words ‘national security.’”                United States v. Morison, 844 F.2d

1057, 1081 (4th Cir. 1988) (Wilkinson, J., concurring).                                     With

all things considered, the district court was correct in holding

that       Risen      was    protected     from        disclosing     his      confidential

sources by a First Amendment reporter’s privilege.

       I    find      it    sad    that   the     majority     departs         from    Justice

Powell’s Branzburg concurrence and our established precedent to

announce for the first time that the First Amendment provides no

protection         for      reporters.        Ante     25.     Under      the       majority’s

articulation          of     the     reporter’s       privilege,     or     lack      thereof,

absent a showing of bad faith by the government, a reporter can

always be compelled against her will to reveal her confidential

sources in a criminal trial.                    The majority exalts the interests

of the government while unduly trampling those of the press, and

in doing so, severely impinges on the press and the free flow of

information in our society.                The First Amendment was designed to

counteract the very result the majority reaches today.                                In sum,

I   would     affirm         the     district    court’s      ruling      as    to     Risen’s

assertion        of    a    First     Amendment       reporter’s     privilege,         albeit

using      the     three-part         LaRouche        test   and    balancing         the   two

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additional     factors       identified      herein:     newsworthiness           of   the

leaked information and the harm resulting from the leak.

                                           E.

       Even if I were not inclined to recognize a First Amendment

privilege      for     a     reporter     in    the    criminal       context      given

Branzburg, I would recognize a common law privilege protecting a

reporter’s sources pursuant to Federal Rule of Evidence 501. 12

Rule 501 was promulgated three years after the Supreme Court’s

decision in Branzburg.             See Pub. L. No. 93-595, 88 Stat. 1926

(1975).        The    Rule    authorizes       federal   courts       to    create     new

evidentiary privileges using the “common law . . . in the light

of reason and experience.”              Fed. R. Evid. 501.             The Rule “did

not   freeze    the    law    governing      the   privileges     of       witnesses   in

federal trials at a particular point in our history, but rather

directed       federal       courts     to      ‘continue       the        evolutionary

development of testimonial privileges.’”                 Jaffee v. Redmond, 518

U.S. 1, 9 (1996) (quoting Trammel v. United States, 445 U.S. 40,

47 (1980)).      By adopting Rule 501, Congress has given authority

to    the   courts    to     use   case-by-case       adjudication         to   find   new

evidentiary privileges.            United States v. Weber Aircraft Corp.,

       12
       To be sure, the district court ruled that the reporter’s
privilege is a constitutional one guaranteed by the First
Amendment. United States v. Sterling, 818 F. Supp. 2d 945, 954.
This court may, however, affirm on any grounds supported by the
record. MM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536
(4th Cir. 2002).


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465 U.S. 792, 803 n.25 (1984) (“Rule 501 was adopted precisely

because      Congress       wished          to   leave       privilege    questions      to    the

courts    rather         than     attempt        to    codify       them.”).     In    light    of

Branzburg’s insistence that “Congress has freedom to determine

whether       a     statutory          newsman’s          privilege      is    necessary       and

desirable and to fashion standards and rules as narrow or broad

as deemed necessary to deal with the evil discerned,” 408 U.S.

at    706,    a     full    discussion           of    the    reporter’s       privilege      must

reckon with Rule 501.

       Testimonial          privileges             “are       not    lightly     created       nor

expansively construed, for they are in derogation of the search

for truth.”          United States v. Nixon, 418 U.S. 683, 710 (1974).

But the Supreme Court and the circuit courts, using Rule 501,

have recognized a number of testimonial privileges.                                   See, e.g.,

Jaffee,       518    U.S.        at    15    (recognizing           psychotherapist-patient

privilege); Upjohn Co. v. United States, 449 U.S. 383, 386-90

(1981)       (recognizing             attorney-client           privilege);       Trammel       v.

United States, 445 U.S. 40, 51-53 (1980) (recognizing marital

communications privilege); Goodyear Tire & Rubber Co. v. Chiles

Power Supply, Inc., 331 F.3d 976 (6th Cir. 2003) (recognizing

settlement communications privilege); Riley v. City of Chester,

612    F.2d       708,     715    (3d       Cir.      1979)    (recognizing      a     qualified

reporter’s privilege).                  All of these privileges are “distinctly

exceptional,” and have only been recognized because they serve a

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“public good transcending the normally predominant principle of

utilizing all rational means for ascertaining truth.”                         Jaffee,

518 U.S. at 9 (internal quotation marks and citations omitted).

In my view, the reporter-source privilege meets this high bar.

      The Supreme Court has stated that “the policy decisions of

the   States   bear    on      the   question     [of]   whether    federal       courts

should    recognize       a    new    privilege    or    amend     coverage       of     an

existing one,” and “[i]t is of no consequence that recognition

of the privilege in the vast majority of States is the product

of legislative action rather than judicial decision.”                          Id. at

12-13.      When    the       Branzburg    decision      issued,    only    seventeen

states had recognized some protection for a reporter regarding

his or her confidential sources.                   Branzburg, 408 U.S. at 689

n.27.      Today,     only     one    state,    Wyoming,    has    not     enacted       or

adopted    a   reporter’s       privilege.        Thirty-nine      states     and       the

District of Columbia have shield laws for reporters, whether

those     shields     are     absolute     or   qualified.          See    Ala.        Code

§ 12-21-142;     Alaska       Stat.     § 09.25.300;     Ariz.     Rev.    Stat.       Ann.

§ 12-2237;     Ark.    Code      Ann.    § 16-85-510;      Cal.    Const.     Art.       I,

§ 2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90-119,

24-72.5-101; Conn. Gen. Stat. Ann. § 52-146t; Del. Code Ann.

tit. 10, § 4320; D.C. Code § 16-4701; Fla. Stat. § 90.5015; Ga.

Code Ann. § 24-9-30; Haw. Rev. Stat. § 621, as amended by 2011

Haw. Sess. Laws ch. 113 (June 14, 2011); 735 Ill. Comp. Stat.

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5/8-901;     Ind.   Code   Ann.    §§ 34-46-4-1,      -2;     Kan.   Stat.    Ann.

§ 60-480; Ky. Rev. Stat. Ann. § 421.100; La. Rev. Stat. Ann.

§ 45:1451; Md. Code Ann. Cts. & Jud. Proc. § 9-112; Mich. Comp.

Laws    § 767.5a;     Minn.       Stat.     § 595.021;       Mont.    Code    Ann.

§ 26-1-901;    Neb.   Rev.    Stat.       § 20-144;   Nev.    Rev.    Stat.   Ann.

§ 49.275; N.J. Stat. Ann. § 2A:84A-21; N.M. Stat. Ann. § 38-6-7;

N.Y. Civ. Rights Law § 79-h; N.C. Gen. Stat. § 8-53.11; N.D.

Cent. Code § 31-01-06.2; Ohio Rev. Code Ann. § 2739.12; Okla.

Stat. Ann. tit. 12, § 2506; Or. Rev. Stat. § 44.510; 42 Pa.

Cons. Stat. Ann. § 5942; R.I. Gen. Laws § 9-19.1-1; S.C. Code

Ann. § 19-11-100; Tenn. Code Ann. § 24-1-208; Tex. Civ. Prac. &

Rem. Code Ann. §§ 22.021-22.027; Utah Order 08-04 [Utah R. Evid.

509]; Wash. Rev. Code Ann. § 5.68.010; 2011 W. Va. Acts 78 (to

be codified at W. Va. Code § 57-3-10); Wis. Stat. Am. § 885.14.

In ten states without statutory shield laws, the privilege has

been recognized in some form or another by the courts.                          See

State   v.   Salsbury,     924    P.2d    208   (Idaho   1996);      Winegard   v.

Oxberger, 258 N.W.2d 847 (Iowa 1977), cert. denied, 436 U.S. 905

(1978); In re Letellier, 578 A.2d 722 (Me. 1990); In re John Doe

Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); Sinnott

v. Boston Retirement Bd., 524 N.E.2d 100 (Mass.), cert. denied,

488 U.S. 980 (1988); State ex rel. Classic III v. Ely, 954

S.W.2d 650, 653 (Mo. Ct. App. 1997); State v. Siel, 444 A.2d 499

(N.H. 1982); Hopewell v. Midcontinent Broad. Corp., 538 N.W.2d

                                         116
780, 782 (S.D. 1995), cert. denied, 519 U.S. 817 (1996); State

v. St. Peter, 315 A.2d 254 (Vt. 1974); Brown v. Commonwealth,

204    S.E.2d       429    (Va.    1974);       Hawkins      v.     Williams,        No.   29,054

(Hinds       County       Circuit       Court,        Mississippi,        Mar.       16,    1983)

(unpublished).             A     number    of     these      jurisdictions           –    Alabama,

Arizona,       California,             Delaware,       the     District         of       Columbia,

Indiana,       Kentucky,         Maryland,       Montana,         Nebraska,      Nevada,        New

York,       Ohio,    Oklahoma,          Oregon,      and     Pennsylvania        –       make   the

privilege an absolute bar to compelling a reporter to divulge

his sources.              On the basis of “the uniform judgment of the

States,”       the       Supreme       Court    recognized          the    psychotherapist-

patient privilege.               Jaffee, 518 U.S. at 14.                  The landscape in

regards      to     the    reporter’s       privilege         has    changed         drastically

since       Branzburg.           The     unanimity      of     the    States         compels    my

conclusion that Rule 501 calls for a reporter’s privilege.

                                                F.

       The paramount importance of the free press guaranteed by

our Constitution compels me to conclude that the First Amendment

encompasses a qualified reporter’s privilege.                             Using the factors

identified herein and given the facts at hand, Risen must be

protected         from    disclosing        the      identity       of    his    confidential

sources.          This is consistent with Branzburg and the need for

courts to balance “freedom of the press” against “the obligation

of    all    citizens       to    give    relevant         testimony      with       respect    to

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criminal conduct.”       408 U.S. at 724 (Powell, J., concurring).

Moreover, given the near unanimity of the states with regard to

a reporter’s privilege, I would recognize the privilege under

Federal Rule of Evidence 501.       Thus, I would affirm the district

court’s    order   quashing   the   trial   subpoena   and   denying   the

Government’s motion to admit Risen’s testimony as to the source

relied upon by Risen for Chapter Nine of State of War.               As to

Issue   I,   then,   I   respectfully     dissent   from   the   majority’s

holding.




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