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Fulton DA’s call for journalists to testify in Trump investigation raises legal, ethical dilemmas

Journalist George Chidi. (Photo via Facebook.)

By John Ruch

On Dec. 14, 2020, independent journalist George Chidi walked through a door at the Georgia State Capitol and into a chapter of history. He had stumbled across a now infamous meeting of Republican “fake electors” that have become part of Fulton County, and perhaps federal, criminal investigations into former President Trump’s attempts to overturn the election.

In July, Chidi walked through another door and into journalists’ version of Hell: a grand jury room, where he testified about that day at the Capitol as part of Fulton District Attorney Fani Willis’s Trump investigationAtlanta Journal-Constitution political reporter Greg Bluestein has been notified he too will be subpoenaed, and other journalists may be on the list.

Grand jury and other court testimony is a legal and ethical quagmire for journalists — the stuff of Supreme Court cases and a Georgia reporters’ shield law — and this case is worthy of far more public discussion than has been engendered by scant coverage and the state’s often tepid professional organizations. Giving info to state prosecutors in a secret proceeding where protecting confidential sources may be impossible is just about the antithesis of a free press. The gist of the concern is that we’re supposed to be independent watchdogs of the government, not its cops. On the government’s side, however, it’s increasingly tough to determine what “journalist” even means in the era of smartphones and social media.

Chidi agonized publicly about the ethics of his situation. In the end, he unsuccessfully fought the subpoena in court, but successfully limited the scope of questions to stay away from unrelated stories. And, he says, he testified with some degree of enthusiasm due to the unique nature of the Trump case.

“I really do feel like we’re in a moment where the republic is at stake,” Chidi said in a phone interview. “There’s nothing normal about the nature of this prosecution, about this case. This is not a routine criminal investigation… This is democracy.”

Over at The Atlanta Journal-Constitution, Managing Editor Leroy Chapman Jr. says his team is girding for a legal fight. He said the DA’s office informally told them to expect a subpoena for Bluestein, their top political reporter, who spoke to sources about the Republican electors and related issues. The subpoena hadn’t appeared as of last week, and the lawyers will try to quash it if it does.

“It is our position that Greg — or any reporter — should not have to testify about information obtained while reporting the news,” Chapman said. “Georgia’s law recognizes that shielding reporters from serving as witnesses — except in the most extreme cases — is essential to preserving the independence of journalists.”

Chapman was referring to Georgia’s “reporter’s privilege” statute, or “shield law,” established in 1990 after decades of national and state legal battles over journalists attempting to protect confidential sources and maintain their independence. The law gives journalists a partial privilege to avoid testifying in court or before grand juries in any kind of case. It sets up a three-part guideline, based on the relevance of the information, the reasonable ability to get the info some other way, and how necessary the info is to “proper preparation or presentation of the case.” Of course, those are open to a lot of interpretation.

Fighting a call to testify in court is always important in preserving such hard-won legal rights, says Jane Kirtley, who formerly headed the Reporters Committee for the Freedom of the Press and is now director of the University of Minnesota’s Silha Center for the Study of Media Ethics and Law.

“I think it’s bad practice for journalists to comply with subpoenas, with perhaps a very rare exception,” like cases where they saw an incident while not on the job, Kirtley said. The legal arguments can seem obscure or a privilege unfair to the average person, she said, but come down to one point: if you want journalists to give you independent information, “you have to stand up for their right to not be turned into investigators for the government.”

Gerry Weber, an attorney with the Georgia First Amendment Foundation (GFAF) who advised Chidi about his subpoena, said the Georgia shield law has two free-press purposes. “One is to protect the editorial discretion of the reporter and whatever publication they’re working with, and the second is so that, except in rare circumstances, the media does not become the investigative tool of the prosecution or the plaintiff in a civil case or whatever it may be.”

The ultimate nightmare for journalists is being forced to identify sources whom they agreed to keep confidential — crucial for their trustworthiness to whistleblowers and their editorial independence. In a famous case from 2005, then New York Times reporter Judith Miller went to jail for 85 days rather than reveal her source in a government leak investigation.

And jail is indeed what journalists can face, along with fines, if they refuse to testify at all. And there’s no official time limit on that jail time. 

“Technically, the judge could find that person in contempt and hold the person in custody until they agree to cure the contempt, which would be agreeing to testify,” said Page Pate, an Atlanta criminal defense attorney.

Another concern for journalists before a grand jury, in particular, is that such bodies have virtually unlimited abilities to ask about anything the jurors want — even topics unrelated to the case, Pate said. That’s why journalists often fight a subpoena and seek a judge’s order limiting the scope of questioning per the reporter’s privilege guidelines. Subpoenas also can seek reporters’ documents rather than direct testimony.

Such privileges came out of legal battles that have gone both ways. A crucial point was the 1972 U.S. Supreme Court decision in Branzburg v. Hayes, where journalists refused to testify about witnessing alleged criminal activity while reporting on the drug trade and Black Panthers meetings.

Weber says Branzburg rejected the claim of a privilege for reporters rooted in the First Amendment. But it was a “very splintered decision,” he said, where time has proven one of the concurring opinions to be more influential in saying there should be some kind of privilege created in federal or state laws. Several states followed suit in such shield laws, but a federal one remains elusive — in part because, more than ever, lawmakers struggle to distinguish professional journalists from anyone with a phone or internet publishing abilities.

The 1990 Supreme Court case Butterworth v. Smith resolved another big concern for journalists — the secrecy of their testimony. That case involved a Florida reporter who uncovered official corruption and was called to testify to a grand jury about his writings. Under the state law at the time, grand jury witnesses could never reveal what they had said in their testimony, essentially making it illegal for him to discuss his own stories ever again. The Supreme Court ruled that such permanent secrecy violated the First Amendment. Kirtley, the Silha Center director, said the Court was concerned that a government — especially a corrupt one — “could effectively stop a reporter from reporting on something sensitive by simply calling them to a grand jury.”

After such legal precedents and the passage of Georgia’s shield law, calling journalists as criminal proceeding witnesses is “not common,” says Pate, the defense attorney. “It has been done before, but it’s not common. But this is an exceptional case.”

Pate said Willis has been unusually “exhaustive” and “broad” in calling witnesses — including state legislators, who enjoy their own limited privileges against testifying, and even potential targets of criminal charges. “She’s subpoenaing people that you wouldn’t normally see testify in a grand jury,” he said.

Could that spell more journalists being called in the future? “I think it’s a unique case. I don’t see this as setting any kind of precedent,” says Pate. But, he adds, it highlights what he sees as gaps in Georgia’s shield law, which he calls “really, really weak.”

“So if a prosecutor wanted to do this more often, it’s not a big hurdle to make,” Pate said. “…It’s certainly a dangerous road to go down because the law in Georgia… is just not a very strong one.”

The Fulton DA’s office did not respond to questions about which journalists it has subpoenaed or why. Chidi says he expects journalists or others from local TV news stations 11Alive and Fox 5 may be subpoenaed as well due to their videotaping of part of the “fake electors” situation. Those stations did not respond to questions.

Aside from the GFAF’s involvement, the calling of journalists, in this case, has received little attention beyond mentions near the bottom of Atlanta Journal-Constitution and New York Times stories. The Georgia chapter of the Society for Professional Journalists did not respond to questions about it. The Atlanta Press Club says it sometimes weighs in when reporters are arrested or blocked from events, but in this situation generally leaves the news organizations to comment.

For Chidi, the subpoena was a tricky and once unimaginable situation. “I gotta tell you, I’ve operated over the course of my career like, ‘I will never set foot in front of a grand jury, ever,’” he said.

Under the shield law guidelines, he didn’t have strong grounds to fight. He was not only a witness to a crucial event but also reported that those involved lied to him and kicked him out, which prosecutors could use as elements in alleging criminal intent.

Chidi had unusually strong concerns about showing up in Fulton County in particular, because much of his regular coverage is devoted to street crime and Willis’s techniques of battling it. That’s back to the reporter’s nightmare of being asked to reveal confidential sources.

“I talk to confidential informants, people who expect to be heard in confidence about crime,” he said. “I am not here to provide that information to the government. Because if I do, they’ll stop talking to me and the public, which really needs a solid understanding of crime right now, would have less data than they should.”

Thanks to the shield law, Chidi — with assistance from Weber and lawyers with one of his outlets, The Intercept, was able to get a judge to narrow the scope of his grand jury questioning. Chidi can “categorically” say that no one in the proceeding asked him about his crime reporting sources.

And thanks to Butterworth, Chidi is free to talk about his testimony — though he says he will do so only generally for now, as he thinks his credibility would be harmed if were to “undermine” the secret investigation. “I will say that the grand jury asked me broadly about the things that I’d already written about,” he said, including authenticating his reporting as well as other related topics.

Chidi says he likely would do the same thing Willis is doing if he were in her shoes and sees the subpoena as part of the push and pull between the government and the press. Likewise, he thinks it was important to challenge the subpoena but also to testify in an extremist political atmosphere, one where he doubts his readers and sources will lose confidence in him.

“As a matter of principle, reporter’s privilege needs to be defended — just to make sure that people don’t think they can do this any old time,” Chidi said. “The conditions have to be as extreme and extraordinary as they are right now.”

 

Editor’s Note: The writer was previously represented by attorney Gerry Weber in an unrelated case.

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