Last week the Attorney General said that the Department of Justice is revisiting its policies on subpoenas to journalists. He made the comment in the context of discussions of the damaging and embarrassing leaks that continue to bedevil the administration. Attorney General Sessions referred to leaks of classified information, but we’ve also seen many leaks of apparently non-classified information that no doubt the administration would like to stop.
In light of my extensive coverage of the Belfast Project subpoena litigation, I have a perspective on this. If you’ll remember, the Belfast Project was an oral history project at Boston College that recorded and archived interviews with participants in the Troubles, the long and bloody struggle between the British and Irish republicans. The leaders of the Project made promises of confidentiality to the participants. But when Dolours Price gave an interview in 2010 that admitted her involvement in the disappearance of Jean McConville and disclosing facts about her Belfast Project interview, the British government made a request, under the US/UK mutual legal assistance treaty, for the the interviews. This led to litigation here in Boston, which I covered extensively. I predicted, correctly as it turned out, that the government would prevail, because in the context of a grand jury proceeding at least, there is no journalist’s privilege, let alone an oral historian’s privilege. As the First Circuit, quoting Wigmore, said: “the mere fact that a communication was made in express confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”