Thursday, August 24, 2006
On top of the investigation in San Francisco into the leak of secret grand jury testimony leaked to the San Francisco Chronicle comes word that U.S. District Court Judge T.S. Ellis has ordered the Department of Justice to investigate whether confidential information was leaked to the press about the impending indictment of two lobbyists subsequently accused of disseminating national security information to Israel. A Washington Post story (here) states that Judge Ellis, who sits in the Eastern District of Virginia, directed prosecutors to determine who may have disclosed information to CBS News in 2004, which reported that Steven Rosen and Keith Weissman would be indicted for violating the Espionage Act before the indictment was returned. The ruling comes in connection with a motion to dismiss by the defendants, who argued that the pre-indictment publicity prejudiced the jury pool; Judge Ellis refused to dismiss the charges but did order the investigation.
The Post story seems to indicate that the investigation is directed at the media, but it looks to me like the basis for it is the grand jury secrecy requirement of Rule 6(e), a violation of which is punishable by a criminal contempt. Although the media cannot generally be charged for publishing information leaked to it, at least outside the national security context, there is a good possibility that reporters will be subpoenaed to testify about the source of their information, perhaps leading (once again) to the incarceration of members of the media for civil contempt for refusing to comply with a grand jury subpoena. Our nation's capital has seen quite a bit of that lately, too, during the investigation of the disclosure of Valerie Plame's identity as a CIA agent. (ph)