The DOJ Won’t Disclose its Trump Informant? There’s a Privilege for That Reply

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.

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.

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 More…

Informer’s Privilege Prevents Disclosure of Confidential Informant in Islamic State-Related Prosecution

Thompson Reuters’ Westlaw Journal White-Collar Crime recently published my article, Informer’s Privilege Prevents Disclosure of Confidential Informant in Islamic State-Related Prosecution, Policein its April 2016 issue.

In an ISIS-related criminal case, a federal court in Minneapolis applied the government–informant privilege to preclude pre-indictment disclosure of a FBI confidential informant.  The court’s ruling means that, at least for now, the government can maintain its informant’s secrecy.  United States v. Abdulkadir, 2015 WL 9581871 (D. Minn. Dec. 31, 2015).

In this article, I discuss the government-informant privilege, including the distinction between an informant who participated in the criminal act and an informant who simply provides a tip regarding upcoming or past criminal conduct, and the court’s ruling.  You may read the article here.

Informer’s Privilege Prevents Disclosure of Confidential Informant in ISIS-Related Prosecution

In an ISIS-related criminal case, the USDC for the District of Minnesota applied the government–informant privilege to preclude pre-indictment disclosure of a FBI confidential informant’s Minnesota courtidentity.  The ruling means that, at least for now, the government can maintain its informant’s secrecy.  United States v. Abdulkadir, 2015 WL 9581871 (D. Minn. Dec. 31, 2015).  You may read
the decision here.

Background

In this criminal complaint, the government claims that Khaalid Adam Abdulkadir made death threats against FBI agents in various Twitter posts.  Abdulkadir’s alleged tweets came after the government’s investigations and prosecutions of ISIS recruits.

In April 2015, the FBI arrested and charged six men with conspiring to provide material support to ISIS, a story you can read here.  And on December 9, 2015, FBI agents arrested Abdirizak Mohamed Warsame and charged him with conspiring to provide material support to ISIS, the details of which are here.

The criminal complaint alleges that a “Confidential Human Source” informed the FBI that, within hours of Warsame’s arrest, Abdulkadir posted two separate tweets containing threatening communications.  The tweets, which you can read here, threatened to kill cops and FBI agents, with one stating: “They will find on the floor body’s dropping fast #kill them FBI.”

Within 10 days of the criminal complaint, Abdulkadir’s attorneys filed a motion seeking “immediate disclosure” of the “Confidential Human Source” that supplied the Twitter information to the FBI.  The government agreed that its informant was responsible for first alerting law enforcement to the Twitter communications, but refused disclosure under the government–informant privilege.

Government–Informant Privilege

The government–informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel.  The U.S. Supreme Court solidified this common-law doctrine in Rovario v. United States, 353 U.S. 53 (1957).

Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is not absolute, and must “give way” in certain circumstances.  The privilege does not protect communications between the informer and law-enforcement that “will not tend to reveal” the informer’s identity.  And, of course, the privilege does not apply after law enforcement discloses the informer’s identity.

Tipster or Participant?

As a final privilege limitation, courts will compel disclosure of the informer’s identity where his identity or communication “is relevant and helpful to the defense” or “is essential to a fair determination of a cause.”  This limitation effectively means that the court will order identity-disclosure where the informant’s information is “material” to the defense.

The defendant has the burden of showing materiality, “which requires more than speculation.”  In assessing materiality, courts apply a balancing test that weighs the public interest in protecting the free flow of information to law-enforcement officers against the criminal defendant’s right to prepare a defense.  Courts generally do not order disclosure where the confidential informant is a mere “tipster,” meaning a person who merely conveys information but does not witness or participate in the alleged crime.

Ruling

The court held that Abdulkadir failed to show that the FBI’s confidential informant was material to his defense. With no specific “facts or circumstances” alleged, the court easily applied the privilege to prevent disclosure.

The court noted that the case remains in the pre-indictment stage, and will permit Abdulkadir to renew his motion at a later date.  If the informer merely notified the FBI about Abdulkadir’s Twitter posts, and did not participate in drafting them, then Abdulkadir will have a difficult time overcoming the privilege in the future.