In re Judith Miller - National Security and
the Reporter's Privilege
On February 14, 2017, the Society sponsored a program to explore the common-law basis for a reporter's privilege and how best to strike the balance between the public's right to know and the Government's need to secure information in the national interest. The program began with remarks by Professor David Pozen of Columbia Law School. He provided the historical background to the case in which New York Times reporter Judith Miller refused to comply with a grand jury subpoena that sought access to documents and testimony related to conversations she had had with a confidential source. Professor Pozen also highlighted the unusual nature of this case - unlike the paradigm situation where a reporter seeks to protect the identity of a low-level whistleblower regarding government corruption, this case involved the strategic leaking of information by high-level government officials in an apparent effort to discredit a low-level government official.
Once the stage was set, the program moved to a reenactment of the argument before the D.C. Circuit. Laura R. Handman of Davis Wright Tremaine LLP presented the case on behalf of Judith Miller, arguing that the court should recognize a federal common-law reporter's privilege to protect the confidentiality of her sources. Amy Jeffress of Arnold & Porter Kaye Scholer LLP argued the case for the Government, stressing that the Supreme Court had already rejected such a privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), and that lower federal courts are not empowered to create new privileges. The advocates argued their positions to Judge David S. Tatel and Senior Judge David B. Sentelle, two of the original panelists that heard the case in 2004.
Following the reenactment, former Deputy Attorney General James M. Cole, now with Sidley Austin LLP, joined Professor Pozen, Ms. Handman, and Ms. Jeffress on a panel to discuss the broader implications of the case and the relationship between the press and the government. Moderator Stuart S. Taylor, Jr., challenged the panel to consider how best to think about a reporter's privilege now that anyone with a Twitter account may qualify as a journalist. The panel also explored the benefits of the Department of Justice's current policy to restrict the ability of prosecutors to compel reporters and media outlets to disclose information as well as the drawbacks of having such a policy reflected only in internal guidance as opposed to a federal statute.
The Federal Judicial Center (FJC) videotaped the program which will soon be streamed on the web sites of the Society and the FJC.
Howard Westwood's Oral History
Howard Westwood reflects on clerking for Justice Stone before the Supreme Court structure was built as well as practicing as a lawyer when
Covington & Burling LLP had only 17 lawyers. Read more of Westwood's oral history.
Remembering E. Barrett Prettyman, Jr., former Chair and President of the Historical Society of the D.C. Circuit
Hogan Lovells is hosting a celebration of Barrett's life and work on February 23rd at 555 13th Street, NW, Washington, DC from 4:00 - 6:00 pm.
Please join the remembrance of Barrett and celebratory reception. RSVP to Angela Carter at 202-637-6926.
Judge Raymond Randolph on Clerking
Read the oral history of Judge Raymond Randolph as he remembers clerking for Judge Friendly, writing the brief
on Bivens, and his many Supreme Court arguments.
On display in the Courthouse: The Portrait of Judge J. Harry Covington
J. Harry Covington, lawmaker, jurist, and founder of one of the oldest D.C.
law firms, was born in 1870 on Maryland's eastern shore. He studied law
at the University of Pennsylvania and upon graduation in 1894 entered
private practice in Easton, Maryland. After running unsuccessfully for
state senate, he won a seat in the U.S. Congress in 1908 representing
Maryland's first District. He resigned from Congress when President
Woodrow Wilson nominated him to the United States District Court in
1914. In 1917, President Wilson asked Judge Covington to spearhead a
special investigation into the International Workers of the World (IWW), a
union under suspicion for its socialist, radical, and suspected anarchist
elements that Wilson believed was a threat to the American war effort.
Federal attention to these so-called Wobblies, including Judge
Covington’s investigation, culminated in simultaneous raids in two dozen
cities nationwide in September 1917. Judge Covington resigned from the
bench in 1918 to co-found Covington & Burling on January 1, 1919. He
died in 1942, and the law firm that bears his name today consists of more
than 800 lawyers. Learn more!
Read the Society's Newsletter
Read the Society's latest newsletter to learn about the Society's
sponsorship of a biography of Chief Judge William B. Bryant that is being written for young adults by
award-winning author Tonya Bolden, Judge Robert L. Wilkins' involvement in efforts to create the National Museum of African-American History and Culture, the Society's upcoming programs, and much more.
Robert L. Wilkins , Judge, U.S. Court of Appeals for the D.C. Circuit
Advocate for a National Museum for African-American History and Culture
When efforts to create a national museum dedicated to African-American history and culture seemed hopelessly stalled,
after decades of effort, Robert Wilkins saw a way forward. Quitting his job in the Public Defenders Office so that he could
dedicate all of his time and energies to making the museum "happen," he researched, maneuvered, and ultimately joined forces
with Senators Sam Brownback and Max Cleland and
Congressmen John Lewis and J.C. Watts and others, helping to get a
Commission established to develop an actionable plan. Joining the Commission, he served as the Chair of its
Site and Building Committee, which fought successfully to have the Museum placed on the national Mall "in America's front yard."
Read more about Judge Wilkins' efforts on our web site
and in his book, Long Road to Hard Truth.