In 2005, New York Times reporter Judy Miller went to prison for 85 days because she refused to reveal her journalistic sources to federal prosecutors. The Justice Department was investigating who had leaked the fact that Valerie Plame – wife of Joseph Wilson, who had written an article that cast doubt on the Bush administration’s rationale for going to war in Iraq – was an undercover CIA agent. Miller, who had covered the war extensively, refused to divulge to prosecutors her sources inside the government. She spent nearly three months behind bars instead.
As she was being taken into federal custody after being held in contempt for refusing to honor the subpoena, she told the presiding judge, “If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press.” The judge was unmoved. “I have a person in front of me who is defying the law,” he declared. “That’s the child saying: ‘I’m still going to take that chocolate chip cookie and eat it. I don’t care.’”
Miller was imprisoned from early July to September 2005. When I interviewed Miller for my book When You Come at the King, she told me she was never in physical danger; the other inmates respected her because “[t]hey knew I was in because I refused to snitch.” She learned insider tricks, including how to make prison lipstick by grinding up red M&Ms and Skittles. But she suffered as her husband battled a serious illness without her. “The truth is, I was miserable the entire time because he was miserable,” she recalled. Miller was released only after her source — Vice President Dick Cheney’s chief of staff, Scooter Libby — consented that she could testify and disclose his identity.
Two decades later, Times reporters might again be forced to choose between revealing journalistic sources or getting locked up.
Last week, Donald Trump’s Justice Department sent teams of FBI agents to the private homes of at least four Times journalists who reported that during his recent trip to Turkey, the president’s new Qatari-gifted airplane had to be switched out due to security concerns, requiring a return flight on the original Air Force One. The story reportedly infuriated the President, who in May 2025 had gleefully accepted the plane as a “gift” from Qatar, despite obvious ethical and security concerns shared across partisan lines.
After the Times published its piece, clown-show sycophant FBI Director Kash Patel cancelled a planned trip to Chicago and posted up inside the White House to run the government’s response as if the nation were facing an imminent existential threat rather than a mild embarrassment to the president. Running local point is Southern District of New York U.S. Attorney Jay Clayton, who humiliated himself last week at a confirmation hearing for his pending appointment as Director of National Intelligence when he sweatily refused to acknowledge the simple truth that Trump had lost the 2020 election.
The Times has taken a righteous stance against DOJ’s vengeful, hyper-aggressive subpoenas. And while the Times and its journalists have a compelling legal argument (and the vastly superior moral position), the law is trickier than you might expect. The ultimate outcome remains in doubt.
The roots of this dilemma go back to 1972, when the vote of a single Supreme Court justice left the American media and its sources dangerously exposed to the whims of prosecutorial discretion. Paul Branzburg, a reporter for a Louisville, Kentucky newspaper, ran two stories about the burgeoning local hashish trade. The articles included quotes from anonymous drug users and a photo image of a dealer’s hands as he synthesized hashish from marijuana. Local prosecutors subpoenaed Branzburg, demanding to know the names of the featured miscreants. He refused to comply and claimed that his communications with journalistic sources were categorically privileged.
The Supreme Court disagreed by a five to four vote. The majority cited the need for prosecutors to investigate potential crimes, and noted that journalists can still contest subpoenas on a case-by-case basis: “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.” The dissenting justices worried that “[t]oday’s decision will impede the wide-open and robust dissemination of ideas and counterthought which a free press both fosters and protects and which is essential to the success of intelligent self-government.”
That dissent has aged well. Indeed, since the 1972 Branzburg decision, administrations of both parties have struggled to strike a workable balance between the government’s legitimate need to investigate some leaks of sensitive information and the First Amendment’s guarantee of a free press.
But the Trump administration has characteristically spent little time fretting over the nuances. Rather, with the subtlety of a sledgehammer, the Justice Department immediately sent out teams of subpoena-wielding federal agents to the private homes of the Times journalists, requiring them to give up their sources to a grand jury. Why worry about balancing Constitutional imperatives when you can just use blunt force instead?
In fact, the Justice Department’s own internal policy – most recently updated in April 2025, during the current Trump administration – exposes just how abusive the Times subpoenas are. The newly revised Justice Manual specifies that subpoenas should be served on journalists only as “an extraordinary measure to be deployed as a last resort” in a case of “substantial importance” to law enforcement or national security.
We’ve got two problems here. First, forget about a case of “substantial importance” – the Times’s reporting barely poses any security risk at all. The Times didn’t reveal war plans or expose an undercover agent or publicize information about an ongoing crime or disclose details about potential domestic vulnerabilities to foreign attack.
In fact, it was already widely and publicly known that Trump had flown to Turkey on the Qatari plane and that the switch back to the original Air Force One happened before his return home. All the Times added was that the change in aircraft was “a security precaution related to the resumption of hostilities with Iran” – not exactly shocking, incidentally, that a Qatari-gifted plane wound up creating security problems. Crucially, the Times did not report anything about the specific nature of those security concerns around the Qatari plane, or where weaknesses might exist. Nobody with bad intentions could realistically use the information in the Times story to do anything malicious, beyond rolling their eyes that Trump had accepted the dubious foreign gift in the first place.
Second, it’s doubtful the Justice Department tried less intrusive measures before deploying the “last resort” – the Trump DOJ’s own words – of subpoenaing journalists. Did investigators first make any effort to get information about the apparent leaks from other evidentiary sources? Did prosecutors give the journalists a chance to negotiate their disclosures, or perhaps to voluntarily provide certain limited information? Given how quickly this all unfolded – the Times story broke on July 8, and subpoena-wielding agents came knocking two days later – it seems DOJ broke its own rules.
The Times has now filed a motion in federal court to quash (block, essentially) the subpoenas, and the parties will appear for an initial hearing in Manhattan federal court on Thursday. The fact that DOJ has breached its own policy will be persuasive, but not necessarily determinative. Federal District Court Judge Arun Subramanian, a 2023 appointee of Joe Biden, still must independently assess the competing arguments – DOJ’s need to investigate versus the Times’s First Amendment concerns – and the result is hardly assured either way.
If the Times ultimately prevails, the Justice Department’s leak investigation could still continue but the reporters won’t have to give up their sources. But if the Times loses and the subpoenas are deemed lawful, things will get dark. Each journalist will have to decide whether to comply and reveal their sources to prosecutors – or to risk a contempt finding and imprisonment in service of a higher principle, as Judy Miller did 21 years ago.
