quote: Journalists Judith Miller and Matthew Cooper are one step closer to jail today after the Supreme Court refused to hear their appeal of a contempt-of-court ruling in the Valerie Plame leak investigation.
The decision, while not unexpected, means that Miller, a New York Times reporter, and Cooper, a Time magazine correspondent, have exhausted their appeals and could be forced to begin an 18-month jail term as early as next month.
They have refused demands by special prosecutor Patrick J. Fitzgerald, the U.S. attorney in Chicago, that they disclose which Bush administration officials they spoke with about Plame. After Plame was outed as a CIA operative by two senior administration officials who spoke to syndicated columnist Robert Novak in 2003, Cooper and two colleagues wrote a story about the administration's apparent effort to retaliate against her husband, Bush critic and former ambassador Joseph Wilson. Miller had discussions with sources but never wrote a story.
Some brief legal background: The question of what privileges exist has been explicitly assigned to the federal courts by Congress. This means SCOTUS could have created the privilege as a matter of federal common law with no question that it is authorized to do so. Congress could then have overidden that decision by passng new legislation, but it would be unlikely for them to do so.
There is a constitutional issue to some privilege claims. For example, attorney client privilege in criminal cases is grounded not only in common law but in the 6th amendment right to effective counsel. The theory is that one can't receive effective counsel if one can't tell one's lawyer everything. This means that Congress could not pass a law just doing away with this privilege, although various well-confined exceptions have been made.
Priest/penitent and reporter source confidentiality both have first amendment concerns, but neither has been found to be an absolute constitutional right. However, the underlying constitutional principles inform federal common law decisions on such things.
The reporter's privilege to not identify sources has been explicitly denied by SCOTUS (in the 70s). But the swing vote on that decision specifically confined the decision to grand jury contexts. This is what is at issue here, so it's little surprise SCOTUS didn't take the case.
Interestingly, a Circuit Court drafting very carefully could probably grant privilege in some cases without running afoul of the SCOTUS case law on the issue. To date, I'm not sure if any have done so.
posted
Wow! I always just assumed that reporters were allowed to remain quiet and wondered what the deal was with judges hitting them with contempt of court.
This is fascinating. I wonder what these reporters will do. My hope, really, is that they take the jail time and never divulge. Even though I really want to nail the jerk who leaked that information. It just isn't worth the chilling effect it would have on reporters' ability to get information.
Oh well. I think I would prefer it if they really had some sort of shield law protecting them.
Posts: 22497 | Registered: Sep 2000
| IP: Logged |
posted
I'm just annoyed that these two reporters are being screwed over, while Bob Novak -- who started the whole thing -- and HIS informant aren't even being seriously investigated.
Posts: 37449 | Registered: May 1999
| IP: Logged |
posted
Tom, we absolutely don't know that BN isn't being investigated. If he testified, it would be easy to keep it secret.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
I'm not sure he would - he'd be admitting he broke confidentiality. And no one else in the grand jury room can speak of it.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
If that we're the case, it would be proof that the AssistantAttorneyGeneral is merely engaging in malicious prosecution to punish reporters who did not break the law to comply with the wishes of the DubyaAdministration
Posts: 8501 | Registered: Jul 2001
| IP: Logged |
posted
The assumption has to be that Novak has testified. It's also possible that he didn't know the name of the source, which he would definitely not want publicized, because it would mean he violated some pretty serious rules of journalism.
Even if Novak turned over the name, though, the prosecutor will want both confirmation and possibly more details about the motive and method.
As to prosecuting Novak for disclosing the name, there's almost no case to be made against him under the law in question.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
I do believe that reporters must be able to provide some confidentiality to their sources (however, this is generally shared with their editors or an unnamed source would never make publication).
But, sadly, we are also in times when the leaking of some information could be considered treasonous, or in this case threatening to the life of an intelligence operative. There is also the possibility of a journalist just making something up and using confidentiality to cover their tracks.
posted
Although, to be clear, the identity of Valarie Plame did not form the legitimate basis for a news story. It's not like there was some sort of cover-up. The person leaking this was not a whistle-blower. He (if the rumors of the investigation are correct) was a higher ranking member of the Bush Administration using this leak to a friendly reporter to illegally attack the wife of someone who was giving them problems.
I'm not entirely sure if I think this means that we should set aside confidentiality here, if only for the precedent, but I think it's important to distinguish this case, which is among the lowest uses of this priviledge I can think of, from the much more legitimate ones.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
posted
And I'm not sure why we must assume that Novak was testified. I think it's more likely, considering that there have been no movements in the "Let's find the person who leaked this information." investigation, that the Justice department is going after the people who made the Bush administration look bad while leaving the ones that furthered their goals alone. I don't know, I don't find that at all unlikely.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
I left out the word "likely." And it is the far more likely assumption, for a variety of reasons:
1.) The judge would be unlikely to issue the contempt rulings if the prosecutor had not gone after Novak. The judge could be told about this en camera, and the defendants would not be entitled to know about it. Remember, not only the district judge but three Cicruit Court judges found that the prosecutor made a strong enough case to compel testimony. This includes an affirmative showing that it's necessary and that it's not malicious.
2.) Novak has incredible incentive not to admit he gave up the source and incredible incentive to say he didn't.
3.) Novak could be legally silenced to prevent him talking about it.
4.) Novak could very well be under investigation for obstruction and/or perjury, both of which would be grounded in statements made to prosecutors. In this situation, Novak could invoke fifth amendment immunity. But these charges would be based on Novak telling them something. And this would make the necessity case much stronger. In fact, it's almost inconceivable that Novak isn't being investigated himself at this point, because most observers agree that it is unlikely a law was broken by the administration official who leaked Plame's name.
5.) Far less likely is the possibility that Novak was being investigated for the original leak and would therefore have fifth amendment immunity.
In short, there's little credence to a conspiracy theory unless one thinks four judges were in on it. Further, the most likely scenario for needing this testimony is to investigate and possibly indict Novak. And most credible investigations would be founded on statements Novak made to the prosecutor.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
I don't know any more about this case than what I read from the article, but from that, it doesn't sound like Novak is directly involved in this case. If that's true, these judges wouldn't have any standing to say anything about him. I'm obviously lacking a great deal of information. Perhaps someone could show where Bob Novak has been asked to yeild up his sources by a court of law.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
quote:I don't know any more about this case than what I read from the article, but from that, it doesn't sound like Novak is directly involved in this case. If that's true, these judges wouldn't have any standing to say anything about him.
What? The prosecutors have to make a showing that the reporters likely have evidence useful to a grand jury proceeding. If Novak is being investigated, then the judge would hear about that. If Novak isn't being investigated, the judge would still hear that 1) Novak published the name that was leaked, and 2) Novak likely could only have gotten that name from someone with access to classified information. From that, the judge would be well within his rights to ask, "What did Novak say about it?" Since it would likely involve the grand jury proceedings, such a question could be asked en camera. Or, the prosecutor could have included an affadavit and the transcript of Novak's statement or testimony for en camera review. If the prosecution didn't offer it, it's very hard to imagine a judge not asking for it.
Standing is irrelevant here. Novak is the topic of the grand jury, either as a potential defendant or as the person who published the story being investigated.
quote:Perhaps someone could show where Bob Novak has been asked to yeild up his sources by a court of law.
Grand jury testimony is secret. Only the witness may talk about it. Sometimes, witnesses can be forbidden from talking about it until the case is over (voted on by the grand jury). Of course, a witness may almost always say they were subpoened. But no one else is allowed to.
So no, someone can't show you where a court of law asked him to yield up his sources, for the simple reason that there would be no publicly available record if he had responded to a subpoena to testify.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
Oddly enough, William Safire came out of retirement and wrote on the decision (he's really unhappy with it). Interesting column. He gets around to Novak too.
quote:LEGEND has it when Henry David Thoreau went to jail to protest an unjust law, his friend, the philosopher Ralph Waldo Emerson, visited him and asked, "Henry, what are you doing in here?" The great nature writer replied, "What are you doing out there?"
The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists - not charged with any wrongdoing - by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.
and, getting to Novak...
quote:Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources - who may have truthfully revealed themselves to investigators - managed to get the prosecutor off his back.
posted
You know, I don't really have a great grasp of many matters legal (and otherwise). Dag are you saying that, if the prosecutors decided not to involve Bob Novak in the case, the judge could bring him in anyway and force him to reveal his sources under threat of contempt of court? If so, my understanding is definitely deficient, which is certainly possible.
Posts: 10177 | Registered: Apr 2001
| IP: Logged |
posted
No. If the two reporters wanted to call Novak in their motion to quash the subpoena or in the hearing on their contempt charges, they could subpoena him. But that's not really my larger point.
I'm saying that if the prosecutors have not brought in Novak and gotten him to testify at some point, the judge would be very reluctant to enforce the subpoenas and uphold contempt charges against the two reporters.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
posted
Time magazine has caved in and will turn over it's notes on the leaks.
quote: Time Magazine to Hand Over Reporter Notes --Jun 30, 6:43 PM (ET) By PAT MILTON NEW YORK (AP) - Breaking ranks with The New York Times, Time magazine said Thursday it would comply with a court order to hand over the notes of a reporter threatened with jail for refusing to cooperate with an investigation into the unmasking of a CIA operative.
Time relented after just days after the U.S. Supreme Court rejected appeals from its White House correspondent Matt Cooper and New York Times reporter Judith Miller, who have been locked in an eight-month battle with the government to protect their confidential sources.
The magazine said the high court's action will have "a chilling effect" on journalists' work but that Time had no choice but to comply.
"The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts," Time said in a statement.
Representatives for both reporters said they believe that the turning over of the notes and other material would eliminate the need for Cooper or Miller to testify before a grand jury and remove any justification for jailing them. ... In a statement, Times publisher Arthur Sulzberger, Jr. said: "We are deeply disappointed by Time Inc.'s decision to deliver the subpoenaed records." He noted that one of its reporters served 40 days in jail in 1978 in a similar dispute.
posted
Time gave the journalists an out while complying with the ruling. It was a smart move, allowing the reporters to maintain their credibility, while staving off the chance of legal action against the magazine.
Time can take the hit and probably should. It was their editorial staff that made the decision that the identity of the CIA operative could be thrown out into the public arena.
posted
That's true, Sopwith, Time did provide some cover for their reporters. I'm actually torn, I wanted the leakers prosecuted, because outing a CIA agent for political revenge is just wrong--yet I believe in limited journalistic privlege. I would be happier if it was Novak who caved, he's often an arrogant jerk.
Posts: 6316 | Registered: Jun 2003
| IP: Logged |
quote:Syndicated columnist Robert Novak acknowledged for the first time today that he identified three confidential administration sources during testimony in the CIA leak investigation, saying he did so because they had granted him legal waivers to testify and because special prosecutor Patrick Fitzgerald already knew of their role.
In a column to be published on Wednesday, Novak said he told Fitzgerald in early 2004 that White House senior adviser Karl Rove and then-CIA spokesman Bill Harlow had confirmed for him, at his request, information about CIA operative Valerie Plame. Novak said he also told Fitzgerald about another senior administration official who originally provided him with the information about Plame, and whose identity he says he cannot reveal even now.
...
Novak says in the forthcoming column that he initially refused to reveal he sources in an October 2003 interview with three FBI officials. He says he remained reluctant to testify before Fitzgerald, even with the waivers the three officials had given the prosecutor, but that his lawyer told him he was sure to lose a costly legal battle and be cited for contempt of court. Novak says he testified before a grand jury a few weeks later, in February 2004, after reading a statement about his discomfort in discussing confidential sources.
He said he is speaking out now because Fitzgerald has notified his attorneys that the investigation, as it relates to him, has been concluded.
*commences mild gloating over predictive powers*
quote:Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources - who may have truthfully revealed themselves to investigators - managed to get the prosecutor off his back.
The easy answer: he didn't commit contempt of court.
quote:while Bob Novak -- who started the whole thing -- and HIS informant aren't even being seriously investigated.
Apparently he was.
quote:I think it's more likely, considering that there have been no movements in the "Let's find the person who leaked this information." investigation, that the Justice department is going after the people who made the Bush administration look bad while leaving the ones that furthered their goals alone.
Again, people who commit contempt of court go to jail. People who don't, don't.
Posts: 26071 | Registered: Oct 2003
| IP: Logged |
Printer-friendly view of this topic
![[Smile]](smile.gif)
![[Dont Know]](graemlins/dontknow.gif)
![[Frown]](frown.gif)
