concurring in the judgment.
This case involves a clash between two truth-seeking institutions: the grand jury and the press. On the one hand, the grand jury, a body “deeply rooted in Anglo-American history” and guaranteed by the Fifth Amendment, see United States v. Calandra, 414 U.S. 338, 342-43, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), holds “broad powers” to collect evidence through judicially enforceable subpoenas. See United States v. Sells Eng’g, Inc., 463 U.S. 418, 423-24, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). “Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.” Id. at 424, 103 S.Ct. 3133. On the other hand, the press, shielded by the First Amendment, “has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences.” Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Using language we have quoted with approval, see Carey v. Hume, 492 F.2d 631, 634-35 (D.C.Cir.1974), the Second Circuit aptly described this conflict between press freedom and the rule of law: “Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.” Garland v. Torre, 259 F.2d 545, 548 (2d Cir.1958).
*27Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters’ testimony, I join the judgment of the court. I write separately, however, because I find Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia — and even the Department of Justice — would require us to protect reporters’ sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy.
I.
Although I join the court’s rejection of appellants’ First Amendment argument, I am uncertain that Branzburg offers “no support” for a constitutional reporter privilege in the grand jury context. See majority op. at 1147 -1148. To be sure, Branzburg upheld the enforcement of subpoenas seeking confidential source information, including notes and testimony about interviews and observations at a militant group’s headquarters. See 408 U.S. at 672-77, 92 S.Ct. 2646. Yet even the Branzburg majority declared that “news gathering is not without its First Amendment protections,” id. at 707, 92 S.Ct. 2646, a phrase we have interpreted (albeit in dictum) to “indicate[] that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify,” Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981). Branzburg’s caveat, placed in a discussion of “[ojfficial harassment of the press” and “grand jury investigations ... instituted or conducted other than in good faith,” Branzburg, 408 U.S. at 707-08, 92 S.Ct. 2646, seems to refer only to journalists’ power to quash “unreasonable or oppressive” subpoenas, see Fed.R.Crim.P. 17(c)(2). But given that any witness— journalist or otherwise — may challenge such a subpoena, the majority must have meant, at the very least, that the First Amendment demands a broader notion of “harassment” for journalists than for other witnesses. Reinforcing that view, the majority added, “We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” Branzburg, 408 U.S. at 708, 92 S.Ct. 2646. That prediction, too, would appear meaningless if no First Amendment safeguards existed for subpoenaed reporters.
Then there is Justice Powell’s “enigmatic concurring opinion.” Id. at 725, 92 S.Ct. 2686 (Stewart, J., dissenting). Though providing the majority’s essential fifth vote, he wrote separately to outline a “case-by-case” approach, see id. at 710, 92 S.Ct. 2686 (Powell, J., concurring), that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims. Emphasizing “the limited nature of the Court’s holding,” id. at 709, 92 S.Ct. 2646, he wrote:
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
Id. at 710, 92 S.Ct. 2646. “In short,” Justice Powell concluded, “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.” Id. Even more than the majority opinion, this language places limits on grand jury authority to demand information about source identities — though, again, the precise extent of those limits seems unclear.
*28Given Branzburg’s internal confusion and the “obvious First Amendment problems” involved in “[c]ompelling a reporter to disclose the identity of a confidential source,” Zerilli, 656 F.2d at 710, it is hardly surprising that lower courts have, as Chief Judge Hogan put it, “chipped away at the holding of Branzburg,” finding constitutional protections for reporters in “vai'ious factual scenarios different than those presented in Branzburg.” In re Special Counsel Investigation, 332 F.Supp.2d 26, 31 (D.D.C.2004). We ourselves have affirmed the denial of a criminal defense subpoena on grounds that the defendant “failed to carry his burden” of “demonstrating] that the reporters’ qualified privilege should be overcome.” United States v. Ahn, 231 F.3d 26, 37 (D.C.Cir.2000). In civil litigation, moreover, we have held that the First Amendment requires courts to “look to the facts on a case-by-case basis in the course of weighing the need for the testimony in question against the claims of the newsman that the public’s right to know is impaired.” Carey, 492 F.2d at 636; see also Zerilli, 656 F.2d at 707 (affirming the denial of a motion to compel discovery because “in this case the First Amendment interest in protecting a news reporter’s sources outweighs the interest in compelled disclosure”). Other circuits have reached similar conclusions. See, e.g., United States v. LaRouche Campaign, 841 F.2d 1176, 1180-81 (1st Cir.1988) (acknowledging First Amendment limits on criminal defense subpoenas directed at news organizations); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.1983) (extending a First Amendment reporter privilege developed in civil cases to a criminal defense subpoena); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 593-99 (1st Cir.1980) (describing First Amendment limits on discovery of reporters’ sources in civil litigation); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir.1977) (indicating that a qualified newsgathering privilege “is no longer in doubt”); but see In re Grand Jury Proceedings, 810 F.2d 580, 584-85 (6th Cir.1987) (rejecting claims of First Amendment privilege in grand jury proceedings).
In this case, however, our hands are tied for two independent reasons. First, although this circuit has limited Branzburg in other contexts, see Zerilli, 656 F.2d at 707; Carey, 492 F.2d at 636; Ahn, 231 F.3d at 37, with respect to criminal investigations we have twice construed that decision broadly. In Reporters Committee for Freedom of the Press v. AT & T, 593 F.2d 1030 (D.C.Cir.1978), which addressed a First Amendment challenge regarding access to journalists’ phone records and describing Branzburg as foreclosing “case-by-case consideration,” we declared, “Good faith investigation interests always override a journalist’s interest in protecting his source.” Id. at 1049 (emphasis added). Echoing this broad view, we have also described Branzburg as “squarely rejecting]” a claim to “general immunity, qualified or otherwise, from grand jury questioning.” See In re Possible Violations of 18 U.S.C. 371, 641, 1503, 564 F.2d 567, 571 (D.C.Cir.1977). In this circuit, then, absent any indication of bad faith, I see no grounds for a First Amendment challenge to the subpoenas at issue here.
Second, although Branzburg involved militants and drug dealers rather than government leakers, the factual parallels between that case and this one preclude us from quashing the subpoenas on constitutional grounds. See majority op. at 10. If, as Branzburg concludes, the First Amendment permits compulsion of reporters’ testimony about individuals manufacturing drugs or plotting against the government, see 408 U.S. at 667-69, 675-77, 92 S.Ct. 2646, all information the government could have obtained from an undercover investí*29gation of its own, the case for a constitutional privilege appears weak indeed with respect to leaks, which in all likelihood will be extremely difficult to prove without the reporter’s aid. Thus, if Brcmzburg is to be' limited or distinguished in the circumstances of this case, we must leave that task to the Supreme Court.
II.
But Brcmzburg is not the end of the story. In 1975 — three years after Brcmzburg — Congress enacted Rule 501 of the Federal Rules of Evidence, authorizing federal courts to develop evidentiary privileges in federal question cases according to “the principles of the common law as they may be interpreted ... in the light of reason and experience.” Fed.R.Evid. 501; see also Pub.L. No. 93-595, 88 Stat.1926 (1975). Given Branzburg’s instruction that “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned,” 408 U.S. at 706, 92 S.Ct. 2646, Rule 501’s delegation of congressional authority requires that we look anew at the “necessity] and desirability]” of the reporter privilege — though from a common law perspective.
Under Rule 501, that common lawmaking obligation exists whether or not, absent the rule’s delegation, Congress would be “the more appropriate institution to reconcile the competing interests ... that inform any reporter’s privilege to withhold relevant information from a bona fide grand jury.” Sep. op. at 1161 (Henderson, J., concurring) (citing Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990)); but see sep. op. at 1155-1156 (Sentelle, J., concurring) (observing that even before Rule 501, case law provided federal courts with “precisely the same authority” to recognize common law privileges) (citing Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617 (1934)); Univ. of Pa., 493 U.S. at 189, 110 S.Ct. 577 (declining to recognize a privilege “where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself”). As the Supreme Court has explained, “Rule 501 was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them.” United States v. Weber Aircraft Corp., 465 U.S. 792, 803 n. 25, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984). Thus, subject of course to congressional override, we must assess the arguments for and against the claimed privilege, just as the Supreme Court has done in cases recognizing common law privileges since 1975. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (psychotherapist-patient); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (attorney-client); Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (confidential marital communications).
In this case, just as Jaffee v. Redmond recognized a common law psychotherapist privilege based on “the uniform judgment of the States,” 518 U.S. at 14, 116 S.Ct. 1923, I believe that “reason and experience” dictate a privilege for reporters’ confidential sources — albeit a qualified one. Guided by Jajfee’s reasoning, I reach this conclusion by considering first whether “reason and experience” justify recognizing a privilege at all, and if so whether the privilege should be qualified or absolute and whether it should cover the communications at issue in this case.
Before undertaking that analysis, I think it helpful to explain why, in my view, we should not, as would Judge Henderson, short-circuit Jajfee’s framework and decide whether the special counsel may over*30come the reporter privilege without ever reaching the issue of whether the privilege in fact exists. See sep. op. at 1159 (Henderson, J., concurring). Unless we conclude, as does Judge Sentelle, see sep. op. at 1153 (Sentelle, J., concurring), and as did the district court, see In re Special Counsel Investigation, 338 F.Supp.2d 16, 18-19 (D.D.C.2004), that no privilege exists, we cannot resolve this case without adopting some standard. Judge Henderson criticizes my approach, but she never indicates what standard she would apply, except to state that “the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.” See sep. op. at 1159 (Henderson, J., concurring). To reach even that conclusion, however, one must explain why federal common law cannot support any higher “hurdle,” such as an absolute privilege for source identities, which exists in the District of Columbia and several states, see, e.g., D.C.Code Ann. §§ 16-4702, 16-4703(b); 42 Pa. Cons.Stat. § 5942; Ala. Code § 12-21-142, or a privilege that applies unless non-disclosure “will cause a miscarriage of justice,” N.D. Cent.Code § 31-01-06.2; see also Minn.Stat. § 595.024; N.M. Stat. Ann. § 38-6-7. Without ruling out all such plausible alternatives that would allow the reporters to prevail, how could one know that they cannot prevail here? And without selecting some other test based on Jaffee and Rule 501, how could one know that no such alternatives are plausible?
Because the Jaffee analysis is thus essential to resolving this case (assuming a privilege exists), our frequent practice of avoiding non-essential issues is inapplicable. To be sure, declining to resolve waived issues, see, e.g., Carney v. Am. Univ., 151 F.3d 1090, 1094-95 (D.C.Cir.1998), disposing of procedurally defective claims without reaching the merits, see, e.g., Jackson v. District of Columbia, 254 F.3d 262, 264, 270-71 (D.C.Cir.2001); cf. Massachusetts v. U.S. Dep’t of Transp., 93 F.3d 890, 891 (D.C.Cir.1996) (assuming deferential review because even under that standard agency action was unreasonable), and expressing no view on one element of a claim because another element is clearly defective, see, e.g., Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1142 (D.C.Cir.2002); Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1308 (D.C.Cir.1997); Littlewolf v. Lujan, 877 F.2d 1058, 1060 (D.C.Cir.1989), may well represent “patience in judicial decision-making,” sep. op. at 1159 (Henderson, J., concurring). Patience, however, cannot justify “declining ... to define [the disputed privilege’s] contours,” see id. at 1146, for that is the dispositive issue in this case.
Accordingly, given that we must apply some test to the government’s showing, if we simply assume the privilege exists but our assumption is wrong, then we will have reached out to establish a framework for a non-existent claim — an undertaking hardly consistent with principles of judicial restraint. Indeed, our decision would establish a precedent, potentially binding on future panels, regarding the scope of the assumed privilege, even though resolving that question was entirely unnecessary. Therefore, I think it imperative to decide as a threshold matter whether the privilege exists, turning only afterwards to the privilege’s specific contours.
In this case, moreover, the issue of the privilege’s existence is fully briefed, and resolving it definitively will provide critical guidance in similar situations in the future. This is not the only case to raise reporter privilege issues in D.C. federal courts in recent years. See Lee v. U.S. Dep’t of Justice, 327 F.Supp.2d 26 (D.D.C.2004); Lee v. U.S. Dep’t of Justice, 287 F.Supp.2d 15 (D.D.C.2003). And given the many leaks that no doubt occur in this city every. *31day, it would be naive to suppose that it will be the last. For the sake of reporters and sources whom such litigation may ensnare, we should take this opportunity to clarify the rules governing their relationship.
Thus, I agree with Judge Sentelle that “the question of the existence of such privilege vel non is logically anterior to the quantum of proof necessary to overcome it.” Sep. op. at 1153 (Sentelle, J., concurring). Without resolving the first question, we cannot and should not decide the second.
Existence of the Privilege
Under Jajfee, the common law analysis starts with the interests that call for recognizing a privilege. See 518 U.S. at 11, 116 S.Ct. 1923. If, as the Supreme Court held there, “[t]he mental health of our citizenry is a public good of transcendent importance,” id. — one that trumps the “fundamental maxim that the public has a right to every man’s evidence,” id. at 9, 116 S.Ct. 1923 (internal quotation marks and ellipsis omitted) — then surely press freedom is no less important, given journalism’s vital role in our democracy. Indeed, while the Jajfee dissenters questioned psychotherapy’s “indispensable role in the maintenance of the citizenry’s mental health,” see id. at 22, 116 S.Ct. 1923 (Scalia, J., dissenting), the First Amendment’s express protection for “freedom ... of the press” forecloses any debate about that institution’s “important role in the discussion of public affairs,” Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Mills, 384 U.S. at 218-19, 86 S.Ct. 1434).
Like psychotherapists, as well as attorneys and spouses, all of whom enjoy privileges under Rule 501, see, e.g., Jaffee, 518 U.S. at 18, 116 S.Ct. 1923 (psychotherapists); Upjohn Co., 449 U.S. at 389, 101 S.Ct. 677 (attorneys); SEC v. Lavin, 111 F.3d 921, 925 (D.C.Cir.1997) (spouses), reporters “depend[ ] upon an atmosphere of confidence and trust,” Jaffee, 518 U.S. at 10, 116 S.Ct. 1923. If litigants and investigators could easily discover journalists’ sources, the press’s truth-seeking function would be severely impaired. Reporters could reprint government statements, but not ferret out underlying disagreements among officials; they could cover public governmental actions, but would have great difficulty getting potential whistle-blowers to talk about government misdeeds; they could report arrest statistics, but not garner first-hand information about the criminal underworld. Such valuable endeavors would be all but impossible, for just as mental patients who fear “embarrassment or disgrace,” id., will “surely be chilled” in seeking therapy, id. at 12, 116 S.Ct. 1923, so will sources who fear identification avoid revealing information that could get them in trouble.
Because of these chilling effects, “[without a privilege, much of the desirable evidence to which litigants ... seek access ... is unlikely to come into being.” Id. Consequently, as with other privileges, “the likely evidentiary benefit that would result from the denial of the privilege is modest.” Id. At the same time, although suppression of some leaks is surely desirable (a point to which I shall return), the public harm that would flow from undermining all source relationships would be immense. For example, appellant Judith Miller tells us that her Pulitzer Prizewinning articles on Osama bin Laden’s terrorist network relied on “information received from confidential sources at the highest levels of our government.” (Miller *32Aff. ¶ 10, Appellant’s App. at 169.) Likewise, appellant Matthew Cooper maintains that his reports for “Time’s four million-plus readers about White House policy in Iraq, the chances of passage of major legislation such as Budget and Energy Bills, and the Clinton White House” would have been impossible without confidentiality. (Cooper Aff. ¶ 21, Appellant’s App. at 286.) Insofar as such stories exemplify the press’s role “as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were elected to serve,” Mills, 384 U.S. at 219, 86 S.Ct. 1434, “reason and experience” support protecting newsgathering methods crucial to their genesis. Acknowledging as much in Zerilli, we emphasized that “[compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability” and weaken “a vital source of information,” leaving citizens “far less able to make informed political, social, and economic choices.” 656 F.2d at 711.
It is true, as the special counsel observes, that apart from affidavits and citations to two articles in them reply brief, the reporters present no empirical evidence that denial of the privilege “will have a significant impact on the free flow of information protected by the First Amendment.” Appellee’s Br. at 47. But the Supreme Court has never required proponents of a privilege to adduce scientific studies demonstrating the privilege’s benefits. Rather, as the Jaffee dissenters pointed out, the empirical question— “[h]ow likely is it that a person will be deterred from seeking psychological counseling, or from being completely truthful in the course of such counseling, because of fear of later disclosure in litigation?” — was one “[t]he Court [did] not attempt to answer.” 518 U.S. at 22-23, 116 S.Ct. 1923 (Scalia, J., dissenting). Instead, following the wise precept that common .sense need not be “the mere handmaiden of social science data or expert testimonials,” Amatel v. Reno, 156 F.3d 192, 199 (D.C.Cir.1998), Jaffee relied on the traditional common law process: it examined the logical prerequisites of the confidential relationship, taking into account the policy and experience of parallel jurisdictions. See Jaffee, 518 U.S. at 10, 116 S.Ct. 1923 (reasoning that given the need for “frank and complete disclosure of facts, emotions, memories, and fears” in psychotherapy, “the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment”).
Likewise, in Trammel v. United States, while justifying the privilege against adverse spousal testimony in terms of “marital harmony,” 445 U.S. at 44-45, 53, 100 S.Ct. 906, the Court allowed waiver by the testifying spouse based not on divorce statistics or psychological studies, but rather on the commonsense supposition that “[w]hen one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — their relationship is almost certainly in disrepair,” id. at 52, 100 S.Ct. 906. And in Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998), though finding the “empirical information ... scant and inconclusive,” id. at 410, 118 S.Ct. 2081, the Court held that the attorney-client privilege survives the client’s death because “[k]nowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel,” id. at 407, 118 S.Ct. 2081 — a proposition the Court supported with neither evidence nor even citation. Given these decisions, the equally commonsense proposition that reporters’ sources will be more candid when promised confidentiality requires no empirical support.
*33In any event, the special counsel’s confidence that exposing sources will have no effect on newsgathering is unjustified. Citing the “‘symbiotic’ relationships between journalists and public officials,” the special counsel presumes that leaks will go on with or without the privilege. Appellee’s Br. at 47 (quoting Branzburg, 408 U.S. at 694, 92 S.Ct. 2646); see also sep. op. at 1160 n.3 (Henderson, J., concurring). Not only does this contradict the Justice Department’s own guidelines, which expressly recognize that revealing confidential sources can “impair the news gathering function,” 28 C.F.R. § 50.10, but the available evidence suggests the special counsel is wrong. As anyone with even a passing interest in news knows, reporters routinely rely on sources speaking on condition of anonymity — a strong indication that leakers demand such protection. Besides, for all the reasons that lead me to conclude that a privilege exists, reporters and their editors, attorneys, and sources probably believe the same, making it speculative indeed for the special counsel to suppose that dashing that expectation of confidentiality would have no effect on newsgathering.
Turning next, as did Jaffee, to the consensus among states, I find support for the privilege at least as strong for journalists as for psychotherapists. Just as in Jaffee, where “the fact that all 50 states and the District of Columbia have enacted into law some form of psychotherapist privilege” favored an exercise of federal common lawmaking, see 518 U.S. at 12, 116 S.Ct. 1923, so here undisputed evidence that forty-nine states plus the District of Columbia offer at least qualified protection to reporters’ sources confirms that “ ‘reason and experience’ support recognition of the privilege,” id. at 13, 116 S.Ct. 1923. Indeed, given these state laws, “[djenial of the federal privilege ... would frustrate the purposes of the state legislation” by exposing confidences protected under state law to discovery in federal courts. See id.
Making the case for a privilege here even stronger than in Jaffee, federal authorities also favor recognizing a privilege for reporters’ confidential sources. As noted earlier, we ourselves have limited discovery of reporters’ sources in both civil and criminal litigation, see Zerilli, 656 F.2d at 707; Carey, 492 F.2d at 636; Ahn, 231 F.3d at 37, as have other federal courts, see, e.g., Bruno & Stillman, 633 F.2d at 593-99; Burke, 700 F.2d at 76-77; Silkwood, 563 F.2d at 436-37, including some acting on the basis of Rule 501, see, e.g., Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir.1979) (recognizing a qualified common law privilege in civil litigation); but see In re Grand Jury Proceedings, 5 F.3d 397, 398 (9th Cir.1993) (holding that no “scholar’s privilege” exists under the First Amendment or common law). In addition, the Justice Department guidelines (though privately unenforceable, for reasons the court explains, see majority op. at 1151 — 1153) establish a federal policy of protecting “news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.” 28 C.F.R. § 50.10. Denial of the privilege, then, would not only buck the clear policy of virtually all states, but would also contradict regulations binding on the federal government’s own lawyers.
Resisting this consensus, the special counsel asserts that Branzburg already performed the analysis required by Rule 501, thus “resolv[ing] the common law argument.” Appellee’s Br. at 35; see also sep. op. at 1153 -1155 (Sentelle, J., concurring). Branzburg did no such thing. As the Branzburg majority’s very first sentence makes plain, the “issue” in that case was “whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of *34speech and press guaranteed by the First Amendment,” 408 U.S. at 667, 92 S.Ct. 2646 (emphasis added), not whether it abridged the common law. Later emphasizing the same point, the majority stated, “Petitioners Branzburg and Pappas and respondent Caldwell press First Amendment claims.” Id. at 679, 92 S.Ct. 2646 (emphasis added); see also sep. op. at 1160-1161 (Henderson, J., concurring). Indeed, having examined the briefs and lower court opinions, I see no evidence that the parties ever even argued for a separate common law privilege. To be sure, the majority declared that “the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation,” id. at 685, 92 S.Ct. 2646, but that point served only to reinforce the majority’s constitutional holding.
Nor does Branzburg support the concurrence’s constitutional avoidance theory. See sep. op. at 1154 (Sentelle, J., concurring). Although the Branzburg majority could have avoided the First Amendment claim by recognizing a common law privilege, given that the majority opinion neither did so nor even raised that possibility, Branzburg’s holding hardly forecloses the common law argument presented here. Quite the contrary, Branzburg acknowledged that “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned,” 408 U.S. at 706, 92 S.Ct. 2646, a power Congress delegated to the federal courts through Rule 501. Thus, if anything, the view that Branzburg disposed of the common law privilege gets it backwards. Insofar as Branzburg relied on the “great weight of authority” to discern the First Amendment’s meaning, see id. at 686, 92 S.Ct. 2646, the shift in favor of the privilege since that time — from seventeen states with statutory privileges then to thirty-one plus D.C. today, with another eighteen providing common law protection — could provide a basis for rethinking Branzburg. Cf. Atkins v. Virginia, 536 U.S. 304, 306-07, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (overturning prior understanding of Eighth Amendment “cruel and unusual punishment” based on a “consensus” among “the American public, legislators, scholars, and judges” regarding execution of the mentally retarded). Although that is something only the Supreme Court can do, this point underscores the error in seeing Branzburg as dispositive.
Given that the common law issue thus remains open, this court must assess the reporters’ claim in light of “reason and experience” today. As Branzburg itself observes in describing Congress’s powers, privilege rules may require “refashion[ing] ... as experience from time to time may dictate.” 408 U.S. at 706, 92 S.Ct. 2646. Bestowing that refashioning power on the federal courts, Rule 501 evidences an “affirmative intention not to freeze the law of privilege,” but rather “to leave the door open to change.” Trammel, 445 U.S. at 47, 100 S.Ct. 906. Consistent with that intent, the Court in Trammel modified the privilege against adverse spousal testimony recognized just twenty-two years earlier in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), allowing the testifying spouse to waive the privilege, see Trammel, 445 U.S. at 53, 100 S.Ct. 906, even though Hawkins had held just the opposite, see Hawkins, 358 U.S. at 77-78, 79 S.Ct. 136. Had the Supreme Court addressed a common law claim in Branzburg, lower courts might lack authority to reconsider that case’s result notwithstanding the subsequent growth in support for the privilege. But cf. Trammel, 445 U.S. at 43, 100 S.Ct. 906 (affirming court of appeals decision limiting Haw*35kins). Absent such a definitive ruling, however, and despite Branzburg’s observation about the “great weight of authority” thirty-three years ago, see 408 U.S. at 686, 92 S.Ct. 2646, we must approach the issue with the same open-mindedness demonstrated by Trammel.
For much the same reason, the omission of a reporter privilege from the Judicial Conference Advisory Committee’s draft rules submitted to Congress in 1972 (and ultimately replaced by Rule 501) need not ■ dictate the outcome here. True, as the special counsel points out, the Supreme Court in United States v. Gillock, 445 U.S. 360, 367-68, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980), declined to recognize a privilege not appearing in the Advisory Committee draft. As that decision acknowledges, however, the draft rules merely reflected what was “thought to be ... indelibly ensconced in our common law” at the time. See id. Accordingly, when the Jajfee Court considered whether the psychotherapist privilege extended to social workers, it relied not on the 1972 draft, which covered only licensed psychotherapists, but rather on the reasons for the privilege and the state laws in effect when Jajfee was decided. See Jaffee, 518 U.S. at 15-17 & n. 16, 116 S.Ct. 1923. Likewise, here, the dramatic growth in support for the reporter privilege supercedes the Advisory Committee’s decades-old choice to omit the privilege from its draft.
Equally inconsequential is the adoption of the reporter privilege in thirty-one states through legislation, rather than judicial action. See sep. op. at 1156 (Sentelle, J., concurring). As the Jajfee dissent pointed out, a far greater proportion of states — indeed, every state — established the psychotherapist privilege by statute, see Jaffee, 518 U.S. at 25-26, 116 S.Ct. 1923 (Scalia, J., dissenting), yet the majority considered that fact “of no consequence,” id. at 13-14, 116 S.Ct. 1923. Nor does it matter that unconventional forms of journalism — freelance writers and internet “bloggers,” for example — may raise definitional conundrums down the road. See sep. op. at 1156-1158 (Sentelle, J., concurring); but see Eugene Volokh, Opinion, You Can Blog, But You Can’t Hide, N.Y. Times, Dec. 2, 2004, at A39 (“[T]he rules should be the same for old media and new, professional and amateur. Any journalist’s privilege should extend to every journalist.”). As Jajfee makes clear, “[a] rule,” such as Rule 501, “that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to de-, fine the details of new privileges in a like manner.” 518 U.S. at 18, 116 S.Ct. 1923. After all, “flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.” Hurtado v. California, 110 U.S. 516, 530, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Here, whereas any meaningful reporter privilege must undoubtedly encompass appellants Cooper and Miller, full-time journalists for Time magazine and the Neiv York Times, respectively, future opinions can elaborate more refined contours of the privilege — a task shown to be manageable by the experience of the fifty jurisdictions with statutory or common law protections.
In sum, “reason and experience,” as evidenced by the laws of forty-nine states and the District of Columbia, as well as federal courts and the federal government, support recognition of a privilege for reporters’ confidential sources. To disregard this modern consensus in favor of decades-old views, as the special counsel urges, would not only imperil vital newsgathering, but also shirk the common law function assigned by Rule 501 and “freeze the law of privilege” contrary to Congress’s wishes, see Trammel, 445 U.S. at 47, 100 S.Ct. 906.
*36 Scope of the Privilege
The next step, according to Jaffee, is to determine what principles govern the privilege’s application in this case. See Jaffee, 518 U.S. at 15-16, 116 S.Ct. 1923 (deciding first that a psychotherapist privilege exists and only then addressing whether the privilege applies to social workers). Pointing out that many jurisdictions recognize only qualified protection for reporters, the special counsel argues that the uniform judgment of states must support application of the privilege in the precise context at issue — defiance of grand jury subpoenas — before federal courts may recognize it. That view, however, belonged to the Jaffee dissent, not the seven-justice majority. Although the dissenters noted an “enormous degree of disagreement among the States as to the scope of the privilege,” 518 U.S. at 33, 116 S.Ct. 1923 (Scalia, J., dissenting), particularly as to which professions it covered, see id. at 27, 116 S.Ct. 1923 (Scalia, J., dissenting), the Court extended the privilege to licensed social workers because “[t]he reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker,” id. at 16-17, 116 S.Ct. 1923. Likewise, Jaffee rejected a proposed balancing test not because other jurisdictions had done so, but because “[mjaking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.” See id. at 17-18, 116 S.Ct. 1923.
Here, even assuming that some jurisdictions categorically exclude grand jury subpoenas — a proposition for which the special counsel cites no authority — the interests protected by the privilege militate against such a limited approach. Although the public interest in law enforcement may well be at its apex when the government is investigating crime, news stories of paramount First Amendment importance, such as reports about government corruption or wrongdoing, may involve sources who “would surely be chilled,” Jaffee, 518 U.S. at 12, 116 S.Ct. 1923, if they thought grand juries could discover their identities from reporters in whom they confide. Furthermore, the special counsel’s proposal is quite anomalous, considering that neither the attorney-client, nor the spousal, nor even the psychotherapist privilege gives way to the grand jury’s truth-seeking function. See, e.g., Swidler & Berlin, 524 U.S. at 403, 118 S.Ct. 2081 (attorney-client); Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951) (spousal); In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 72 (1st Cir.1999) (allowing grand jury testimony not because no psychotherapist privilege exists in that context, but rather because a “crime-fraud exception” applies to the privilege).
As to the scope of the privilege, however, I agree with the special counsel that protection for source identities cannot be absolute. Leaks similar to the crime suspected here (exposure of a covert agent) apparently caused the deaths of several CIA operatives in the late 1970s and early 1980s, including the agency’s Athens station chief. See Haig v. Agee, 453 U.S. 280, 284-85 & n. 7, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). Other leaks — the design for a top secret nuclear weapon, for example, or plans for an imminent military strike— could be even more damaging, causing harm far in excess of their news value. In such cases, the reporter privilege must give way. Just as attorney-client communications “made for the purpose of getting advice for the commission of a fraud or crime” serve no public interest and receive no privilege, see United States v. Zolin, *37491 U.S. 554, 563, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (internal quotation marks omitted), neither should courts protect sources whose leaks harm national security while providing minimal benefit to public debate.
Of course, in some cases a leak’s value may far exceed its harm, thus calling into question the law enforcement rationale for disrupting reporter-source relationships. For example, assuming Miller’s prize-winning Osama bin Laden series caused no significant harm, I find it difficult to see how one could justify compelling her to disclose her sources, given the obvious benefit of alerting the public to then-underappreciated threats from al Qaeda. News reports about a recent budget controversy regarding a super-secret satellite program inspire another example (though I know nothing about the dispute’s details and express no view as to its merits). See, e.g., Dan Eggen & Walter Pincus, Justice Reviews Request for Probe of Satellite Reports, Wash. Post, Dec. 16, 2004, at A3; Douglas Jehl, New Spy Plan Said to Involve Satellite System, N.Y. Times, Dec. 12, 2004, at Al. Despite the necessary secrecy of intelligence-gathering methods, it seems hard to imagine how the harm in leaking generic descriptions of such a program could outweigh the benefit of informing the public about billions of dollars wasted on technology considered duplicative and unnecessary by leading Senators from both parties. In contrast to the nuclear weapon and military strike examples mentioned above, cases like these appear to involve a balance of harm and news value that strongly favors protecting news-gathering methods.
Given these contrasting examples, much as our civil cases balance “the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712; see also Carey, 492 F.2d at 634-36, so must the reporter privilege account for the varying interests at stake in different source relationships. In other words, to quote the Justice Department subpoena guidelines, “the approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fail* administration of justice.” 28 C.F.R. § 50.10(a).
Citing our reporter privilege cases— Zerilli, Carey, and Ahn — the special counsel urges us to rely on two factors deemed “central” in those decisions and emphasized in the Justice Department guidelines: first, the requesting party’s need for the evidence, and second, that party’s exhaustion of alternative sources. See Zerilli, 656 F.2d at 712-14; Ahn, 231 F.3d at 37; Carey, 492 F.2d at 636-37, 638; 28 C.F.R. § 50.10(b), (f)(1). While both these considerations are obviously essential to minimizing the burden on newsgathering, they can serve as exclusive measures in the privilege analysis only where there exist means of proof other than compelling the reporter’s testimony. When prosecuting crimes other than leaks (murder or embezzlement, say) the government, at least theoretically, can learn what reporters know by replicating their investigative efforts, e.g., speaking to the same witnesses and examining the same documents. Accordingly, if a truly exhaustive investigation has failed to prove a crime that the government reasonably believes has occurred, compelled disclosure of a reporter’s source may be justified notwithstanding the attendant burdens on newsgathering. As the special counsel acknowledged at oral argument, however, when the government seeks to punish a leak, a test focused on need and exhaustion will almost always be satisfied, leaving the reporter’s source unprotected regardless of the information’s importance to the public. The reason for this is obvi*38ous: Insofar as the confidential exchange of information leaves neither paper trail nor smoking gun, the great majority of leaks will likely be unprovable without evidence from either leaker or leakee. Of course, in some cases, circumstantial evidence such as telephone records may point towards the source, but for the party with the burden of proof, particularly the government in a criminal case, such evidence will often be inadequate.
In leak cases, then, courts applying the privilege must consider not only the government’s need for the information and exhaustion of alternative sources, but also the two competing public interests lying at the heart of the balancing test. Specifically, the court must weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value. That framework allows authorities seeking to punish a leak to access key evidence when the leaked information does more harm than good, such as in the nuclear weapon and military strike examples, while preventing discovery when no public interest supports it, as would appear to be the case with Miller’s Osama bin Laden articles. Though flexible, these standards (contrary to the special counsel’s claim) are hardly unmanageable. Indeed, the Supreme Court employs a similar requirement of “legitimate news interest,” meaning “value and concern to the public at the time of publication,” in assessing restrictions on government employee speech. See City of San Diego v. Roe, 548 U.S. 77, 125 S.Ct. 521, 526, 160 L.Ed.2d 410 (2004) (per curiam). Nor is this analysis “novel,” see sep. op. at 1160 (Henderson, J., concurring), considering its basis in Zerilli and Carey and the Justice Department’s own guidelines.
Though recognizing that leaks with “national security implications” raise different concerns from “information in the nature of ‘whistleblowing,’ ” Appellee’s Br. at 44, 48, the special counsel insists that the prosecutor, not the court, should assess factors other than need and exhaustion. Under this theory, balancing the two remaining concerns, the harmfulness of the leaked information and the damage to newsgathering that might flow from enforcing the disputed subpoenas, would be a matter of prosecutorial discretion. In my view, the special counsel’s position distorts the roles of judge and prosecutor in evidentiary disputes.
Although courts certainly defer to executive judgments about which crimes merit prosecution — a judgment that is, after all, a “core executive constitutional function,” United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) — nonetheless the executive branch possesses no special expertise that would justify judicial deference to prosecutors’ judgments about the relative magnitude of First Amendment interests. Assessing those interests traditionally falls within the competence of courts. Cf. Landmark Communications, Inc., v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights ■ are at stake.”). Indeed, while the criminality of a leak and the government’s decision to press charges might well indicate the leak’s harmfulness — a central concern of the balancing test — once prosecutors commit to pursuing a case they naturally seek all useful evidence. Consistent with that adversarial role, the Federal Rules of Evidence assign to courts the function of neutral arbiter: “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.” Fed.R.Evid. 104(a) (emphasis added). Accordingly, just as courts deter*39mine the admissibility of hearsay or the balance between probative value and unfair prejudice under Rule 403, so with respect to this issue must courts weigh factors bearing on the privilege.
Moreover, in addition to these principles applicable to the judicial role in any evidentiary dispute, the dynamics of leak inquiries afford a particularly compelling reason for judicial scrutiny of prosecutorial judgments regarding a leak’s harm and news value. Because leak cases typically require the government to investigate itself, if leaks reveal mistakes that high-level officials would have preferred to keep secret, the administration may pursue the source with excessive zeal, regardless of the leaked information’s public value. Of course, in this case a special counsel was appointed to exercise independent judgment. Yet independent prosecutors, too, may skew their assessments of the public interests implicated when a reporter is subpoenaed. After all, special prosecutors, immune to political control and lacking a docket of other cases, face pressure to justify their appointments by bagging their prey. Cf. Morrison v. Olson, 487 U.S. 654, 727-28, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting) (noting “the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation” and observing that “the primary check against prosecutorial abuse is a political one”). To be clear: I do not impugn the motives of this special counsel. Indeed, as I conclude below, his pursuit of the reporters’ testimony appears reasonable. Nevertheless, these considerations — the special counsel’s political independence, his lack of a docket, and the concomitant risk of overzealousness— weigh against his claim to deference in balancing harm against news value.
Paralleling the special counsel’s argument about executive discretion, my concurring colleague suggests that my approach pays insufficient deference to Congress. See sep. op at 1163 (Henderson, J., concurring). “Branzburg” she writes, “warns of the risk inherent in the judicial assessment of the importance of prosecuting particular crimes.” See id. Although it is true that Branzburg cautioned against second-guessing the “legislative judgment ... of what conduct is liable to criminal prosecution,” 408 U.S. at 706, 92 S.Ct. 2646, it did so in a passage rejecting a test of governmental need that apparently “distinguishfed] between the value of enforcing different criminal laws,” deeming some statutes “compelling” and others unimportant. See id. at 702, 705-06, 92 S.Ct. 2646. The approach I propose entails no such judgment about the value of the statute under which the government is proceeding. Rather, my approach focuses on whether evidence the government believes it needs, i.e., a reporter’s testimony about a particular source, is privileged. To be sure, insofar as the reporter’s testimony is critical in a particular case, privileging the evidence may render that case unprovable. But that risk accompanies any privilege or indeed any rule of evidentiary exclusion. Had Congress believed that judicial decisions excluding evidence interfered with its “legislative judgment” regarding underlying crimes, it would hardly have authorized recognition of common law privileges by enacting Rule 501.
Furthermore, and perhaps even more important, Branzburg addressed only a First Amendment privilege claim. See supra at 1148. In that case, therefore, because Congress cannot overturn constitutionally based decisions, recognizing the asserted privilege would have permanently foreclosed punishment of any crimes dependent on proof subject to the privilege. The qualified privilege I would recognize, *40however, rests on Rule 501, not the Constitution. If Congress believes that this approach overrides its judgment about what conduct should be criminal, it may simply overturn the privilege and authorize use of the evidence.
Next, the special counsel argues that waivers signed by suspected sources represent an “additional factor” favoring compulsion of the reporters’ testimony. Appellee’s Br. at 46. As the reporters point out, however, numerous eases (including persuasive district court decisions from this circuit) indicate that only reporters, not sources, may waive the privilege. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir.1980); Palandjian v. Pahlavi, 103 F.R.D. 410, 413 (D.D.C.1984); Anderson v. Nixon, 444 F.Supp. 1195, 1198-99 (D.D.C.1978). For the contrary proposition, the special counsel cites McKevitt v. Pallasch, 339 F.3d 530 (7th Cir.2003), but that case involved a criminal defendant’s effort to obtain non-confidential records from the biographers of a government witness, not waiver of confidentiality by a previously unidentified source. See id. at 531, 533-34. Nor does Hutira v. Islamic Republic of Iran, 211 F.Supp.2d 115 (D.D.C.2002), help the special counsel. While that decision indicated that “‘the absence of confidentiality may be considered in the balance of competing interests as a factor that diminishes the journalist’s, and the public’s, interest in non-disclosure,’ ” id. at 120 (quoting Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir.1993)), it quashed the subpoena at issue, reasoning that “the privilege for journalists shields both confidential and noneonfidential information from compelled disclosure,” id.
As this case law recognizes, a source’s waiver is irrelevant to the reasons for the privilege. Because the government could demand waivers — perhaps even before any leak occurs — as a condition of employment, a privilege subject to waiver may, again, amount to ho privilege at all, even in those leak cases where protecting the confidential source is most compelling. Moreover, although the attorney-client and psychotherapist privileges are waivable by clients and patients, respectively, see, e.g., In re Sealed Case, 877 F.2d 976, 980 (D.C.Cir.1989) (attorney-client); Jaffee, 518 U.S. at 15 n. 14, 116 S.Ct. 1923 (psychotherapist), that is because those privileges exist to prevent disclosure of sensitive matters related to legal and psychological counseling, see, e.g., Swidler & Berlin, 524 U.S. at 407-08, 118 S.Ct. 2081; Jaffee, 518 U.S. at 10-11, 116 S.Ct. 1923, a rationale that vanishes when the source authorizes disclosure. In contrast, the reporter privilege safeguards public dissemination of information — the reporter’s enterprise, not the source’s.
Consistent with that purpose, the privilege belongs to the reporter. Not only are journalists best able to judge the imperatives of newsgathering, but while the source’s interest is limited to the particular case, the reporter’s interest aligns with the public, for journalists must cultivate relationships with other sources who might keep mum if waiving confidentiality at the government’s behest could lead to their exposure. Indeed, as compared to counseling-related privileges, the privilege against spousal testimony represents a better analogy. Just as under Trammel’s waiver theory testifying spouses, regardless of the other spouse’s wishes, may judge for themselves whether their testimony will undermine “marital harmony,” see Trammel, 445 U.S. at 44-45, 52-53, 100 S.Ct. 906, so should journalists — the experts in newsgathering — base the decision to testify on their own assessment of the consequences, unconstrained by then-source’s waiver (provided other requirements of the privilege are met).
*41For their part, appellants insist that a qualified privilege fails to provide the certainty then- work requires because sources are unlikely to disclose information without an advance guarantee of secrecy. In particular, they argue that journalists cannot balance a leak’s harm against its news value until they know what information the source will reveal, by which time it is too late to prevent disclosure. True enough, but journalists are not the ones who must perform the balancing; sources are. Indeed, the point of the qualified privilege is to create disincentives for the source— disincentives that not only promote the public interest, but may also protect journalists from exploitation by government officials seeking publication of damaging secrets for partisan advantage. Like other recipients of potentially privileged communications — say, attorneys or psychotherapists — the reporter can at most alert the source to the limits of confidentiality, leaving the judgment of what to say to the source. While the resulting deterrent effect may cost the press some leads, little harm will result, for if the disincentives work as they should, the information sources refrain from revealing will lack significant news value in the first place.
In any event, although Jqffee said that “[mjaking the promise of confidentiality contingent upon a trial judge’s later evaluation ... [will] eviscerate the effectiveness of the privilege,” 518 U.S. at 17, 116 S.Ct. 1923, the clash of fundamental interests at stake when the government seeks discovery of a reporter’s sources precludes a categorical approach. See Zerilli, 656 F.2d at 712 n. 46 (rejecting arguments for greater “specificity” as to the scope of the First Amendment privilege in civil litigation). And as we explained in Zerilli, the “deterrence effect” on beneficial newsgathering will be small if courts make clear that the privilege is “overridden only in rare circumstances.” See id. at 712 & n. 46.
In short, the question in this case is whether Miller’s and Cooper’s sources released information more harmful than newsworthy. If so, then the public interest in punishing the wrongdoers — and deterring future leaks — outweighs any burden on newsgathering, and no privilege covers the communication (provided, of course, that the special counsel demonstrates necessity and exhaustion of alternative evidentiary sources).
III.
Applying this standard to the facts of this case, and considering first only the public record, I have no doubt that the leak at issue was a serious matter. Authorized “to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, [his] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,” see Letter from James B. Comey, Acting Attorney General, to Patrick J. Fitzgerald, United States Attorney, Northern District of Illinois (Feb. 6, 2004), the special counsel is attempting to discover the origins of press reports describing Valerie Píame as a CIA operative monitoring weapons of mass destruction. See majority op. at 1142 -1144. These reports appeared after Plame’s husband, former Ambassador Joseph Wilson, wrote in a New York Times op-ed column that his findings on an official mission to Niger in 2002 cast doubt on President Bush’s assertion in his January 2003 State of the Union address that Iraq “recently sought significant quantities of uranium from Africa.” See id. at 3.
An alleged covert agent, Píame evidently traveled overseas on clandestine missions beginning nearly two decades ago. See, e.g., Richard Leiby & Dana Priest, *42The Spy Next Door; Valerie Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct. 8, 2003, at Al. Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past. Acting to criminalize such exposure of secret agents, see 50 U.S.C. § 421, Congress has identified that behavior’s “intolerable” consequences: “[t]he loss of vital human intelligence which our policymakers need, the great cost to the American taxpayer of replacing intelligence resources lost due to such disclosures, and the greatly increased risk of harm which continuing disclosures force intelligence officers and sources to endure.” S.Rep. No. 97-201, at 10-11 (1981), reprinted in 1982 U.S.C.C.A.N. 145, 154-55.
The leak of Plame’s apparent employment, moreover, had marginal news value. To be sure, insofar as Plame’s CIA relationship may have helped explain her husband’s selection for the Niger trip, that information could bear on her husband’s credibility and thus contribute to public debate over the president’s “sixteen words.” Compared to the damage of undermining covert intelligence-gathering, however, this slight news value cannot, in my view, justify privileging the leaker’s identity.
Turning now to the classified material, I agree with the special counsel that ex parte review presents no due process difficulty. To be sure, grand jury secrecy is not absolute. As Rule 6(e) itself provides, courts may “authorize disclosure ... of a grand jury matter ... preliminarily to or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(E). In addition, as the reporters point out, even apart from United States v. Dinsio, 468 F.2d 1392 (9th Cir.1973), now superceded by United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), see majority op. at 1151 (citing In re Braughton, 520 F.2d 765, 767 (9th Cir.1975)), the Second and Ninth Circuits have held that due process requires an “uninhibited adversary hearing” in civil contempt proceedings, see United States v. Alter, 482 F.2d 1016, 1024 (9th Cir.1973) (internal quotation marks omitted); In the Matter of Kitchen, 706 F.2d 1266, 1272 (2d Cir.1983) (internal quotation marks omitted), including “the right to confront all the government’s evidence, both documentary and testimonial, unless particular and compelling reasons peculiar to the grand jury function require some curtailment of [that] right,” Kitchen, 706 F.2d at 1272.
In this circuit, however, we have approved the use of “in camera, ex parte proceedings to determine the propriety of a grand jury subpoena or the existence of a crime-fraud exception to the attorney-client privilege when such proceedings are necessary to ensure the secrecy of ongoing grand jury proceedings.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C.Cir.1998) (per curiam). Just as due process poses no barrier to forcing an attorney to testify based on the court’s examination of evidence, unseen by the lawyer, that the client sought legal advice in pursuit of a crime, neither does it preclude compulsion of a reporter’s testimony based on a comparable review of evidence, likewise unseen by the ■ reporter, that a source engaged in a harmful leak. In fact, appellants’ protests notwithstanding, ex parte review protects their interests, as it allows the government to present — and the court to demand — a far more extensive showing than would otherwise be possible given the need for grand jury secrecy discussed in the court’s opinion, see majority op. at 1150-1151.
That said, without benefit of the adversarial process, we must take care to ensure *43that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has.
With respect to Miller, the special counsel seeks evidence regarding two exchanges with I. Lewis “Scooter” Libby, Vice President Cheney’s Chief of Staff and National Security Adviser: first, an in-person meeting in Washington, D.C. on July 8, 2008, and second, a telephone conversation on July 12, 2003. Before the grand jury, Libby testified that although he had previously learned about Wilson’s ivife’s employment, he had forgotten it by July 8 and recalled no discussion of Wilson during his meeting with Miller. (I-105, 13k-35, 279.) As to the July 12 conversation, Libby stated, “I said to her that, that I didn’t know if it was true, but that reporters had told us that the ambassador’s wife works at the CIA that I didn’t knaui anything about it.” (1-208.) Because other testimony and evidence raises doubts about Libby’s claims, the special counsel believes Miller’s testimony is “essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information.” (8/27/Ok Aff. at 28; see also id. at 1-2.)
The special counsel’s argument is persuasive. As Libby admits, in mid-June 2003, when reports first appeared about the Niger trip, the vice president informed Libby “in an off sort of curiosity sort of fashion” that the Niger envoy’s wife worked at the CIA’s counterproliferation division. (1-50-55, 2k5-k6.) In addition, handwritten notes by Libby’s CIA briefer indicate that Libby referred to “Joe Wilson” and “Valerie Wilson” in a conversation on June lk- (8/27/Ok Aff. at 12.) Nevertheless, Libby maintains that he believed he was learning about Wilson’s wife’s identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews. (1-162-69; 8/27/Ok Aff. at 9-10.) According to Libby, Russert told him, “[D]id you know that Ambassador Wilson’s wife works at the CIA? ... [AJll the reporters know it.” (1-166.) Claiming to have been “a little taken aback by that, ” Libby testified, “I said, no, I don’t know that intentionally because I didn’t want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning.” (1-166.)
Russert recalls this conversation very differently. In his deposition, describing Píame’s employment as a fact that would have been “[v]ery” significant to him — one he would have discussed with NBC management and potentially sought to broadcast — Russert stated, “I have no recollection of knowing that [Wilson’s wife roorked at the CIA], so it was impossible for me to have [told Libby] that.” (I-k3; 32.) Asked to describe his “reaction” to Novak’s July lk column, Russert said, “Wow. When I read that — it was the first time I knew who Joe Wilson’s wife roas and that she was a CIA operative.... [I]t was news to me. ” (I-k33.)
Also contrary to Libby’s testimony, it appears that Libby discussed Plame’s employment on several occasions before July 10. (See 8/27/Ok Aff. at 11-12.) For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on July 7, the day before Libby’s meeting with Miller, Libby told him, “[T]he Vice-President did not send Ambassador Wilson to Niger ... the CIA sent Ambassador Wilson to Niger.... [H]e was sent by his *44wife.... [S]he works in ... the Counter-proliferation area of the CIA.” (11-515-17.) Describing the lunch as “kind of weird” (11-590-91), and noting that Libby typically “operated in a very closed-lip fashion” (11-592), Fleischer recalled that Libby “added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t.” (II-516-17.) Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson’s wife. (1-108-09, 156, 226-27.)
As to the July 12 conversation, * * * * * [REDACTED] * * * * *
Libby called several journalists, including Cooper and Miller. (1-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, “[Y]ou know, off-the-record, reporters are telling us that Ambassador Wilson’s wife works at the CIA and I don’t know if it’s true.... [W]e don’t know Mr. Wilson, rue didn’t know anything about his mission, so I don’t know if it’s true. But if it’s true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information.” (1-203-06.) According to Libby, Miller, too, said something that “triggered” him to mention that “reporters had told us that the ambassador’s wife works at the CIA.” (1-207-09.)
In contrast, in a deposition limited to Cooper’s contacts with Libby (see 11-32-33, 107), Cooper said that he (Cooper) asked Libby “something along the lines of what do you know about Wilson’s wife being involved in, you know, sending him an this mission?” (11-53.) According to Cooper, Libby responded, “[YJeah, I’ve heard that too” (11-51), which Cooper took as confirmation (11-81-91). * * * * * [REDACTED] * * * * *
Given the evidence contradicting Libby’s testimony, the special counsel appears already to have at least circumstantial grounds for a perjury charge, if nothing else. Miller’s testimony, however, could settle the matter. If Libby mentioned Píame during the July 8 meeting — and Miller’s responses to the documentary subpoena suggest she has notes from that conversation (see 8/27/01 Ajf. at 19-20) — • then Libby’s version of events would be demonstrably false, since the conversation occurred before he spoke to Russert. Even if he first mentioned Píame on July 12, as he claims, inconsistencies between his recollection and Miller’s could reinforce suspicions of perjury. What’s more, if Libby mentioned Píame’s covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 121, currently off the table for lack of evidence (see 8/27/01 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby’s claims — evidence obviously available from no other source— the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby’s conduct.
Regarding Cooper, * * * * *[REDACTED] * * * *
In any event, as with the Miller subpoenas, the evidence sought from Cooper appears essential to accurate understanding of events and could obviously provide information unavailable elsewhere. Thus, again, the special counsel has shown that this evidence is crucial to accurate decision-making by the grand jury.
As to the leaks’ harmfulness, although the record omits specifics about Píame’s work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproli*45feration. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Píame as “a person whose identity the CIA rvas making specific efforts to conceal and who had carried out covert work overseas within the last 5 years” — representations I trust the special counsel would not make without support. (8/27/01 Aff. at 28 n.15.) In addition, Libby said that Píame worked in the CIA’s counterproliferation division (1-58-55, 215-16), * * * * * [REDACTED] * * * * *
Most telling of all, Harlow, the CIA spokesperson, though confirming Plame’s employment, asked Novak to withhold her name, stating that “although it is very unlikely that she will ever be on another overseas mission ... it might be embarrassing if she goes on foreign travel on her own” (11-168-69), a statement that strongly implies Píame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information’s extremely slight news value and the lack of any serious dispute regarding Plame’s employment.
Finally, while it is true that on the current record the special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. What’s more, because the charges contemplated here relate to false denials of responsibility for Plame’s exposure, prosecuting perjury or false statements tvould be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and neivs value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose — at least at this stage of his investigation — is to shore up perjury charges against leading suspects such as Libby ***** [REDACTED] * * * * *
In sum, based on an exhaustive investigation, the special counsel has established the need for Miller’s and Cooper’s testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas.
One last point. In concluding that no privilege applies in this case, I have assigned no importance to the fact that neither Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue, revealed Plame’s employment, though Cooper wrote about it after Novak’s column appeared. Contrary to the reporters’ view, this apparent self-restraint spares Miller and Cooper no obligation to testify. Narrowly drawn limitations on the public’s right to evidence, testimonial privileges apply “only where necessary to achieve [their] purpose,” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and in this case the privilege’s purpose is to promote dissemination of useful information. It thus makes no difference how these reporters responded to the information they received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffee suggested would not be privileged, see 518 U.S. at 18 n. 19, 116 S.Ct. 1923). In all such cases, because the communication is unworthy of protection, recipients’ reactions are irrelevant to whether their testi*46mony may be compelled in an investigation of the source.
Indeed, Cooper’s own Time, com article illustrates this point. True, his story revealed a suspicious confluence of leaks, contributing to the outcry that led to this investigation. Yet the article had that effect precisely because the leaked information — Plame’s covert status — lacked significant news value. In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime. The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leaks — say, from a whistleblower who revealed the plot against Wilson — the situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Píame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires.
IV.
I conclude, as I began, With the tensions at work in this case. Here, two reporters and a news magazine, informants to the public, seek to keep a grand jury uninformed. Representing two equally fundamental principles — rule of law and free speech — the special counsel and the reporters both aim to facilitate fully informed and accurate decision-making by those they serve: the grand jury and the electorate. To this court falls the task of balancing the two sides’ concerns.
As James Madison explained, “[A] people who mean to be them own Governors must arm themselves with the power which knowledge gives.” See In re Lindsey, 148 F.3d 1100, 1109 (D.C.Cir.1998) (quoting Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910)). Consistent with that maxim, “[a] free press is indispensable to the workings of our democratic society,” Associated Press v. United States, 326 U.S. 1, 28, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945) (Frankfurter, J., concurring), and because confidential sources are essential to the workings of the press — a practical reality that virtually all states and the federal government now acknowledge — I believe that “reason and experience” compel recognition of a privilege for reporters’ sources. That said, because “[ljiberty can only be exercised in a system of law which safeguards order,” Cox v. Louisiana, 379 U.S. 559, 574, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the privilege must give way to imperatives of law enforcement in exceptional cases.
Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury’s need for the reporters’ evidence, I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.