On Friday, May 18, 2018, The New York Times and the Washington Post reported that, beginning in July 2016, an FBI informant contacted and met with Trump Campaign officials in a clandestine effort to obtain information about the Campaign’s dealings with Russian operatives. The news reports state that an American professor teaching in Britain met with George Papadopoulos, a foreign-policy advisor to the Trump Campaign and, later, with Carter Page, an advisor, and Trump Campaign co-chairman Sam Clovis.
Who is the Informant?
Demands for informant’s information immediately arose. Representative Devin Nunes, Chair of the House Intelligence Committee, has subpoenaed the informant’s information and threatened to hold Attorney General Jeff Sessions in contempt if the DOJ does not comply. White House Chief of Staff John Kelly similarly requested that the DOJ supply information about the informant and his activities. And, in an interview published today in The Wall Street Journal, Trump lawyer Rudy Giuliani said that the president needs the informant’s information before he will consider sitting for an interview with Special Counsel Mueller.
And earlier today, President Trump demanded via Twitter that the DOJ look into the FBI’s alleged “infiltration” into the Trump Campaign.
But is this Privileged?
Citing national-security concerns and potential danger to future investigations, the DOJ refuses to disclose the informant’s identity or provide any information about his alleged activities. If this dispute were to ever make it to court—say, in an action to enforce Nunes’ subpoena—is there an evidentiary privilege that supports the DOJ’s position?
Yes, there is. The government–informant privilege, which SCOTUS redefined in Roviaro v. United States, 353 U.S. 53 (1957), protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not to the informer, but it protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to governmental officials.
The privilege protects information beyond the informer’s identity, such as communications that would reveal the informer’s identity, the informer’s location, and the nature of the relationship between the government and the informer. But the privilege does not apply after the informant is deceased or when his name has been previously disclosed.
A Qualified Privilege
The governmental-informant privilege is a qualified privilege, meaning that it may be overcome upon a sufficient showing of need by the party seeking disclosure. The Roviaro Court explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to a criminal defense or is essential to a fair determination of the cause. To determine whether a defendant meets either standard, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.
There is no fixed rule concerning when disclosure is required; courts must make the assessment on a case-by-case basis and have discretion to determine whether the evidence justifies disclosure. The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if the government reveals his identity.
So, the DOJ certainly has the legal authority to withhold the informant’s identity and information that would reveal his identity and his relationship with the DOJ. A court may later find that a greater interest overrides the government–informant privilege. And with some media outlets, such as this one, reporting the informant’s identity, the privilege may become moot.