“ In applying a reporter’s privilege in contexts other than a grand jury investigation, the courts of appeals have distinguished Branzburg, and expressly acknowledged that Branzburg precludes recognition of a First Amendment privilege in the context of a good faith grand jury investigation. ”

“ As these decisions correctly recognize, this Court’s decision in Branzburg turned on the unique and vital role of the grand jury in our criminal justice system. As the Court observed in Branzburg:
The prevailing constitutional view of the newsman’s privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions. ”

“ Applying the assumed qualified privilege to the facts necessitated an evaluation by the lower courts of information concerning the full scope and breadth of the ongoing grand jury investigation. Although the government took the position that it was not legally required to do so, it provided the district court with a detailed description of the progress of the investigation, including extensive references to sensitive and classified grand jury information, such as the identities of witnesses, the substance of grand jury testimony, and the strategy or direction of the investigation. ”

“ In Branzburg, the Court held that journalists, like other citizens, must “respond to relevant questions put to them in the course of a valid grand jury investigation.” 408 U.S. at 690-691; see Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (citing Branzburg for the proposition that “the First Amendment [does not] relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source”) ”

“ In this case, petitioners faced a coercive penalty of civil contempt because they refused to obey a lawful order to give evidence, rather than a penalty for past actions. The evidence contained in the ex parte submissions related to the government’s conduct of the grand jury investigation. As Judge Tatel commented, “ [t] o avoid incarceration, [petitioners] need not persuade the district judge that any accusation against them is false; they need only abandon their unlawful resistance and testify before the grand jury.” Miller Pet. ”

“ Rumsfeld, 124 S. Ct. 2633 (2004) (plurality opinion) (challenge to American citizen’s classification and detention as an “enemy combatant” for a period of more than two and one half years without meaningful opportunity to contest detention) .
Although this Court held that the litigants in each of those cases were entitled to examine and challenge the evidence against them, the disputed evidence in each case was limited and related to the litigant’s own conduct. Moreover, in those cases, the potential consequences of the litigant’s conduct was the central issue in the case before the Court. ”

“ The Special Counsel seeks to bring the ongoing investigation, which he began in December 2003, to as swift a conclusion as possible. By fall 2004, the Special Counsel’s investigation was for all practical purposes complete except for the testimony of Miller and Cooper. The unsuccessful negotiations with petitioners and the litigation on the motions to quash and the contempt citations has proceeded in the months since then. The Special Counsel has endeavored to expedite the proceedings to the extent possible. ”

“ In addition, on September 28, 2003, the Washington Post reported that, in the July 2003 time frame, “two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife.” Miller Pet. App. 4a.
2. In the fall of 2003, the government began an investigation into whether federal law had been violated in connection with the unauthorized disclosure by gov­ernment employees of information concerning the identity of a purported CIA employee. Miller Pet. App. 4a. ”

“ On September 13, 2004, the grand jury issued a second set of subpoenas to Cooper and Time seeking testimony and documents relating to “conversations between Matthew Cooper and official source (s) prior to July 14, 2003, concerning in any way: former Ambassador Joseph Wilson; the 2002 trip by former Ambassador Wilson to Niger; Valerie Wilson Plame a/k/a Valerie Wilson a/k/a Valerie Plame (the wife of former Ambas­sador Wilson) ; and/or any affiliation between Valerie Wilson Plame and the CIA.” Miller Pet. App. ”

“ Cooper Pet. App. 108a. In a memorandum opinion dated November 10, 2004, the district court relied on the grounds stated in the court’s July 20, 2004 opinion, and on the additional ground that the new subpoenas “stem [med] from legitimate needs due to an unanticipated shift in the grand jury’s investigation,” were not issued in an attempt to harass, and thus were not unreasonable or oppressive. Id. at 111a-115a. On October 13, 2004, after a hearing, the district court held Cooper and Time in civil contempt of court based on their refusal to comply with the subpoenas. Id. ”