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

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 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.


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.


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.

As Rocky Marciano Reminds Us–The Government-Informant Privilege Applies in Civil Actions

What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.

The 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. 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 qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, 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 on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole 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 his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history.  For a replay of the famous punch, check out this Youtube video.

The Scandal

While most remember Marciano’s famous knockout punch, a scandal involving Jersey Joe Walcott’s manager developed followingthe fight.  In a 1956 article titled “Dirty Work at Ringside” and published in the Saturday Evening Post, Marciano claimed that Walcott’s manager, Felix Bocchicchio, rubbed capsicum Vaseline on Walcott’s boxing gloves and upper part of his body.  And with every punch landed by Walcott and whenever Marciano’s face contacted Walcott’s upper body, the capsicum Vaseline would get into his eyes.  Marciano described his predicament this way:

I’m sure Jersey Joe had nothing to do with this. He was a hellava fighter that night, even without the extra help.  But by the end of the sixth round my eyes were burning.  They burnt so bad during the seventh and eighth roundss I could hardly hold them open.  To see Walcott, I had to lift my head to look out at him from under my lids.  That way I had to hold up my chin in the air.  That way I was a real easy target.

Almost a year later, a Philadelphia policeman told Marciano that a police informant told him that Walcott’s manager, Bocchicchio, obtained the capsicum Vaseline and intentionally rubbed the medicine on Walcott’s gloves and upper body.  The article contained this damning quote:

Somehow or other, this capsicum got to Bocchicchio, and I don’t know why that should be so complicated, because anybody can buy the stuff in a drugstore.  But my informant was afraid for his life if he told how it got to Bocchicchio.  Well, in the ring it was rubbed on Walcott’s gloves and shoulders, and whenever you’d go into a clinch with him or whenever he jabbed you, it would rub off into your eyes.

The Lawsuit and the Government-Informant Privilege

Bocchicchio was not pleased with the article, and filed a libel action against Curtis Publishing Company, the publisher of the Saturday Evening Post.  Bocchicchio’s counsel called the policeman to testify and

October 6, 1956 Saturday Evening Post issue containing Marciano’s capsicum vaseline claims

asked the informer’s name.  The policeman refused, citing the government-informant privilege.  The Court agreed and did not force the policeman to reveal his informer’s identity.  The Court recognized that the privilege is most often applied in criminal cases, but that it applies in civil cases as well. The Court noted that the privilege recognizes citizens’ obligations to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.  Not only did the Court apply the privilege in this civil action, it noted that “The Federal Courts have consistently indicated that the strength of this privilege is greater in civil cases such as this than in criminal cases.”  See Bocchicchio v. Curtis Publishing Co., 203 F. Supp. 403 (E.D. Pa. 1962).

The jury returned a defense verdict and Bocchicchio’s libel action was dismissed. By this time (1962), Marciano had defeated Jersey Joe Walcott a second time and retired as the only undefeated heavyweight boxing champion.  And one of the lasting legacies of the famous 1952 bout is the solidification that the government-informant privilege not only applies in civil actions, but does so with greater strength than in criminal cases.