BuzzFeed Invokes Reporter's Privilege to Shield Trump Dossier Source

Aleksej Gurbarev wants to know the identity of the source after learning BuzzFeed didn't get the spy report from Fusion GPS.
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On Monday, BuzzFeed told a Florida judge that it should not have to disclose the identity of the confidential source who gave the publication the infamous Trump Dossier.

BuzzFeed's publication in January of the Trump Dossier — a report prepared by former British spy Christopher Steele that detailed everything from President Donald Trump's supposed romps with prostitutes to coordination with the Russians over the hacking of Democrats — has BuzzFeed facing a defamation lawsuit from Russian tech entrepreneur Aleksej Gurbarev. 

Many people may have assumed that BuzzFeed got the Trump Dossier from Fusion GPS, which in 2016 conducted opposition research on Trump and hired Steele to investigate the then-candidate's ties to Russia. But according to BuzzFeed's newest court brief, when Gurbarev's attorney asked Fusion GPS's counsel if Fusion was BuzzFeed's source, the answer was no.

Now, Gurbarev is looking to compel information from BuzzFeed and its editor Ben Smith.

"The issue presented by Plaintiffs’ request to compel Defendants to disclose a confidential source is serious, and stark," states a BuzzFeed memorandum regarding reporter's privilege. "Plaintiffs demand that this Court order Defendants to violate a promise of confidentiality to a source, an act that for any journalist would constitute the ultimate breach of his or her professional ethics and sense of duty. Yet Plaintiffs have made this extraordinary demand by invoking what are essentially phantom claims about their purported need for this information, and without having made even the slightest effort to explore any alternatives. Under any version of the reporter’s privilege to protect confidential sources, the balance here decidedly tips in Defendants’ favor."

In recent days, the hunt for information via the legal process has been a hot topic at BuzzFeed. Over the weekend, for instance, BuzzFeed made hay about how Trump was being subpoenaed for documents related to sexual assault allegations even though the existence of that subpoena has been known for more than six months, the scope of the subpoena was hardly surprising, and the subpoena has been put aside for the moment to explore constitutional issues in the defamation case against Donald Trump.

In the Gurbarev case, BuzzFeed has its own constitutional arguments for resisting disclosure of sensitive information. Specifically, the First Amendment, which BuzzFeed argues has been used to recognize a reporter's privilege in the 11th Circuit, which covers Florida. That said, BuzzFeed is doing its best to get the judge in the Gurbarev case to apply New York law since there's a long list of case precedent giving news organizations the ability to shield sources, especially in defamation cases.

BuzzFeed's invocation of the reporter's shield could prompt Gurbarev to argue that the need for hunted information is substantial and that BuzzFeed's source can't be obtained elsewhere. In the court papers, BuzzFeed anticipates those arguments by first addressing the supposed basis of the request.

"Plaintiffs claim that they need to know the identity of the Source because Defendants have purportedly relied on it in invoking the fair and true report defense," write BuzzFeed's lawyers, referring to how reporters are allowed to report on government activity without having to verify the truth of what's in government documents and proceedings. "But this dog of an argument simply will not hunt because Defendants have done no such thing. Defendants have never referenced or even alluded to the Source in asserting the fair report privilege...."

BuzzFeed's attorneys also say that Gurbarev's haven't done a particularly good job of seeking the information from alternative sources. The plaintiff has apparently hypothesized that the Trump Dossier could have also come from former FBI director James Comey, Steele or U.S. Sen. John McCain.

According to the BuzzFeed memorandum, "Plaintiffs’ counsel conceded that he had not made any efforts to depose any of those potential sources, but claimed that he had no obligation to do so."