The panel was unanimous in its rejection of petitioners’ claimed First Amendment privilege in the grand jury context. In the opinion for the court authored by Judge Sentelle, the panel thoroughly analyzed Branzburg v. Hayes, supra, and, finding no material distinction between the facts of Branzburg and those of the case before the court of appeals, held that Branzburg foreclosed petitioners’ claim of protection based on a reporter’s privilege rooted in the First Amendment. Miller Pet. App. 7a-15a.
With respect to petitioners’ request that the court recognize an absolute reporter’s privilege rooted in federal common law, the panel was unanimous in ruling out the existence of such a privilege. Miller Pet. App. 15a, 76a-77a. With respect to petitioners’ alternative argument for a qualified privilege, the panel was “not of one mind” concerning the existence of such a privilege. Miller Pet. App. 15a. The court explained that Judge Sentelle “would hold that there is no such common law privilege,” that Judge Tatel “would hold that there is such a common law privilege,” and that Judge Henderson “believes that we need not, and therefore should not, reach that question.” Ibid.
The panel also unanimously agreed that, using the formulation of a qualified common law privilege suggested by Judge Tatel, the privilege was overcome and, therefore, that the district court’s decision should be affirmed. Miller Pet. App. 15a, 22a, 31a, 77a.2 Judge Tatel, who alone favored recognition of a common law reporter’s privilege, applied the standard he had formulated to the facts of the case and determined, after “carefully scrutiniz[ing] [the special counsel’s] voluminous classified filings,” that, “based on an exhaustive investigation, the special counsel has established the need for Miller’s and Cooper’s testimony,” and that, “considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas.” Miller Pet. App. 64a, 75a.3
