SANTA ANA, Calif. — A federal judge withdrew his threat to order a prominent reporter on the national security beat to identify his confidential sources after the journalist took the Fifth Amendment in a surprise-filled hearing here this morning.
Judge Cormac Carney excused William Gertz of the Washington Times from further proceedings here after he repeatedly invoked his constitutional right against self-incrimination in response to questions from the judge and a defense attorney. Mr. Gertz's refusal came after a federal prosecutor advised the journalist's lawyers that he would be called before a grand jury investigating leaks of classified information.
Judge Carney said Mr. Gertz's reporting on a Chinese espionage case relied in part on improper leaks of secret grand jury information. However, the judge said the public's interest in unfettered reporting outweighed the interest in forcing the journalist to identify the leakers, at least in the current proceeding.
A Justice Department prosecutor assigned to investigate the leaks, Jay Bratt, said he was not authorized to participate in the hearing, which he said implicated separation of powers issues by intruding on the threatened grand jury investigation into the leaks. As the questioning of Mr. Gertz began, Mr. Bratt went so far as to absent himself from the courtroom. He returned a short time later and took a seat in the gallery.
Judge Carney expressed frustration that the government initially said it planned to take part in the questioning of Mr. Gertz but recently retreated from that pledge.
"I asked you to the prom and you said you'd go. Then you left me at the dance," the judge complained.
While Mr. Gertz is off the hook for now, the stand-off over his sources is likely to be repeated in the coming months as prosecutors seek to force him to testify before a grand jury. He indicated he will resist any effort to expose his sources.
Federal grand jury subpoenas seeking confidential information from journalists require the approval of the attorney general, something prosecutors indicated they were seeking in recent court filings. It would appear that Attorney General Mukasey authorized such a subpoena for Mr. Gertz in the past few days.
It is likely prosecutors will grant immunity to Mr. Gertz, which will make it impossible for him to rely on the Fifth Amendment to avoid testifying. If efforts to quash the subpoena fail, he could face civil or criminal contempt charges for refusing to identify his sources.
Congress is on the verge of passing legislation to create a legal privilege that would immunize reporters from having to testify in federal court under most circumstances. It is unclear whether President Bush will sign the measure and whether it would protect Mr. Gertz in the current dispute.
After the court session, Mr. Gertz declined to take questions, but read a prepared statement expressing little relief. "Today's hearing shows that First Amendment press freedoms are under assault. Confidential sources are the lifeblood of a free press, independent of government control. Without them, most government failures and abuses of past decades would have gone unreported and uncorrected," the journalist said."The identity of these confidential news sources must be protected if our press freedoms, fundamental to the effective functioning of our democratic system, are to endure. Efforts by government to compel reporters to disclose news sources must be resisted."