Federal law provides no special protection for reporters with confidential sources. In other words, if the government needs information from those reporters to carry out a prosecution, the government can – in theory – go after them. Yet for more than 40 years, the Justice Department has wisely recognized in its own guidelines that it should use the force of law to compel reporters to give up their sources only when the need is pressing – and then, only after all other investigative avenues have been exhausted. All that is at risk in the Justice Department these days. In the past few months, the department allowed the U.S. attorney in Los Angeles to subpoena two San Francisco Chronicle reporters who broke the baseball steroids scandal to get them to reveal the source of the leak of Barry Bonds’ and Jason Giambi’s grand jury testimony. The journalists, whose courageous reporting forced baseball to deal with the steroid problem after ignoring it for a decade, now face jail if they refuse to give up their sources. (In the interest of full disclosure, I filed an affidavit in support of the reporters.) And in the Eastern District of Virginia, the […]

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