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…