First Amendment Ruling: Judge Tosses First Subpoena Of Reporter By Trump Administration

In a significant victory for the First Amendment, a federal judge in Portland told prosecutors that they could not force a reporter to testify in an ongoing criminal trial. The subpoena had been the first issued to a reporter by the Trump Justice Department.

Prosecutors had sought to force a former reporter for Oregon Public Broadcasting to testify in the second trial related to the 41-day armed takeover of the Malheur National Wildlife Refuge.

Judge Anna Brown threw out the subpoena on Friday after hearing arguments from prosecutors and reporter John Sepulvado's lawyer.

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Prosecutors had said that they wanted him to testify about an interview with Ryan Bundy that he did during the occupation.

"It is destroying the lives and liberties and properties, property rights anyway, for those around," Bundy told Sepulvado in the January 9, 2016 interview, explaining why they took over the refuge. "It's being facilitated from this office. So by being here, it puts a stop to that.''

Prosecutors argued that journalists have no privilege in a federal criminal trial and aded that they were not asking Sepulvado to disclose a confidential source, and that they would limit their questions to asking Sepulvado to authenticate the interview.

Brown took issue with several of the prosecution's arguments.

"I'm starting with the premise there is a journalist's privilege under federal law," Brown she said, disagreeing with prosecutors who had tried to assert there is no such privilege.

She also said that it would not be possible for Sepulado to testify without going to privileged territory, reaffirming the press's right to protect sources and not act as an agent of the government. Defense lawyers had made it clear that if Sepulvado was called, they would attack his credibility.

Judge Brown said that there were other ways for prosecutors to get the interview admitted at trial - including by calling Ryan Bundy.

"I'm granting the motion to quash," she said.

Afterward, Sepulvado used Twitter to let his boss know the news.

"I'm not gonna have to testify, so I can be at work Monday," he wrote, then tweeted thanks to several people. "Most of all thank you to Judge Anna Brown for seeing what this -- an encroachment on the First Amendment.

"I'm so grateful to be a journalist, and I'm so grateful for the First Amendment."

Sepulvado's subpoena is believed to have been the first one issued to a reporter during the Trump administration.

"In a time when the news media are coming under increasing attack, it is more important than ever that the courts protect the independence of the media," the ACLU had said in a court filing supporting Supelvado. "The role of the media in gathering and disseminating the news is compromised whenever government attempts to enlist the media as part of its investigation and prosecution of criminal conduct.

"Requiring journalists to function as an arm of the government in prosecuting crime necessarily threatens the independence of the media and inhibits their ability to gather the news."

Before the hearing, Sepulvado - who listened in by phone from California where he now works, had taken to Twitter to question the government's approach.

"Even if thats true, the problem is that the defense has a constitutional obligation to turn me -and possibly my sources - into mud pie," he wrote. "But, for real what does it say about fed investigators when their case hinges on reporting from the *WEEKEND* host of the local NPR station.

"I mean, are we hoping that the afternoon guy at the local jazz station will also help identify ISIS plots?"

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