[Editor’s note: On February 24, a federal judge in Portland handed Donald Trump’s administration a defeat in its ongoing battle against the press. At the center of that fight: John Sepulvado, a former reporter with OPB, now living in San Francisco. Here’s Sepulvado’s take on what was at stake.]
I’m a journalist. Most of my friends are journalists. And many of my friends thought it would’ve been a great thing if I had gone to jail instead of testifying at the second criminal trial in the Malheur occupation saga.
As it seeks to convict the four remaining defendants accused of occupying the Malheur National Wildlife Refuge last year, the federal government had subpoenaed me to testify. But there is no way in hell I would have answered a question, which probably would have meant spending the trial in jail.
“It’ll be great for your career,” one friend told me.
“You’ll be famous!” wrote another.
“It’s just like when Will McAvoy went to jail in The Newsroom,” my brother said.
My response was, “Name one journalist who went to jail for not testifying.” Hardly anyone could answer.
The more I examined my friends’ assumption that jail time equals rock-star-journalist status, the more it became clear these perceptions are based largely on fictional media narratives.
Please understand that real life is not Hollywood, and jail is not a scene you want in the storyboard of your life.
Even the way a subpoena is served is devoid of any drama or intrigue. There is no undercover processer posing as a pizza delivery dude with a wrong address. There is no neighbor from down the street trying to find their lost dog. The feds don’t even meet you face-to-face to hand the paper to you.
Instead, I found out the federal government had subpoenaed me the same way I find out that my Netflix charge didn’t go through, or that OKCupid user BlueGrassLass510 likes me. I got an email.
“Hi John,” it read, “As I indicated... earlier today, Attorney General [Jeff] Sessions himself has authorized the issuance of the attached subpoena to you.”
“Jesus, I need to change my spam settings,” I thought.
But while the process of serving has become as easy as 1-2-send, the ethical, legal, and professional consequences of having a journalist testify in open court could be devastating to everyone involved—including the public.
As my attorney, Duane Bosworth, said in court, such testimony could compromise sources and infringes on reporter’s privilege. If sources feel uneasy about sharing their stories, journalism collapses on itself.
That’s why I wanted to become the first journalist to successfully fight the Trump administration’s overreach.
That’s why I’m so proud that I am.
Let’s back up: The US Attorney’s office in Oregon wanted me to testify—they say—to authenticate an interview I conducted with Ryan Bundy, one of the leaders of the 2016 occupation at the Malheur National Wildlife Refuge.
As a reporter at Oregon Public Broadcasting, I was part of a team that broke story after story about the occupation. I’m deeply proud of our team and our work, and it speaks to the power of that work that the government wanted to use it to prove its case.
Specifically, prosecutors wanted me to authenticate an interview broadcast by OPB, in which Bundy admitted that occupiers chose the refuge to keep federal workers from doing their jobs. This admission essentially proves the government’s case, which is why prosecutors want it in the record.
Here’s the thing: The Obama administration had also asked me to testify. I refused. The US Attorney’s office moved on.
But shortly after the new attorney general—Sessions—was sworn in, he approved my subpoena. Of course, Sessions represents a new administration that has made it clear they consider the press “the enemy.” Sessions is no friend of the press, as he has—among other things—often worked to block or weaken federal shield laws for journalists.
I saw testifying as a win for the Trump administration’s self-declared “war on journalists.” I wanted to do everything I could to fight what I see as efforts to chill First Amendment norms.
Meanwhile, I got no respite from defense attorneys. My testimony would have been damaging to the defendants, and so their attorneys worked hard to impeach my credibility. Several defense attorneys contacted me and asked me to turn over sources. Others suggested I was an FBI informant, or that I somehow worked with agents to ask questions of Ryan Bundy that could later be used in court.
Broadly, the defense indicated they planned to ask me who my sources were on a host of stories related to the occupation.
That’s why I decided to fight the subpoena, and why I would have refused to testify, even if I was ordered to do so.
My job—and my First Amendment right as a member of the press—requires me to be wholly independent of outside influence. I presented myself to Ryan Bundy as an honest broker. I presented that interview to OPB’s audience as an honest broker.
To violate the trust of my named source, and the audience, by testifying for or against anyone in a criminal trial would erode both my credibility and OPB’s, impeding our ability to report freely under the First Amendment.
My unnamed sources are people who have entrusted me to protect their identity no matter what, in exchange for information of importance to the public. Unnamed sources played a key role in OPB’s coverage. We made this deal with them: We will never, ever identify you without your permission.
That’s the deal I was able to keep—without jail time—because of the wisdom of District Judge Anna Brown. After an hour-long hearing, she quashed the government subpoena, citing First Amendment concerns. I’m almost certain other journalists will soon find themselves in much harder situations, especially those reporting at the highest levels of government.
That brings us back to this idea that somehow, some way, there’s a benefit to not testifying and serving jail time for contempt.
If I would have lost this motion to quash, my friends—mainly journalists—would have lost as well. It would have been a clear signal to the government that getting reporters on the stand is easier than in the past. It would have broken long-established norms that journalists should be subpoenaed only on the rarest occasions. It would’ve undoubtedly emboldened an administration that—just a few days ago—called for a rooting out of government sources.
This would have a great chilling effect across the entire profession, making it even more difficult to hold the powerful accountable.
Unlike Hollywood storylines, there would have been no win in losing. It was imperative that I not be forced to testify. And it is imperative going forward that journalists fight to protect the First Amendment—and that they win.
There are no Hollywood heroes in real life, and there are no moral victories with the First Amendment.
There is either freedom of speech, or there are journalists in jail. But there cannot be both.