By: Joe Strupp
Journalists Matthew Cooper and Judith Miller may find out as soon as this week whether the U.S. Supreme Court will hear their appeal of a contempt ruling for refusing to disclose who leaked the identity of a CIA agent to them — a decision that could send them to jail before the end of the month.
The high court is set to consider the reporters’ requests for certiorari on Thursday, along with hundreds of other appeal cases, according to Attorney Floyd Abrams, who is representing Miller. He said the justices will discuss the case at their Thursday conference, which essentially ends the court’s current session, and likely make their decision known next Monday.
“The usual practice would be that they decide at the [Thursday] conference, unless they decide to put it off and decide in the fall,” Abrams said today. “These decisions are usually announced on the following Monday.” But, given the interest in this case, a decision could be announced any time after it is made, Abrams said.
“The overwhelming amount of cert [requests for appeal] are routinely denied,” Abrams said. “There are sometimes a few that are granted; we hope to be in that few.” If not, they could be sent to jail within days.
He also reiterated his belief that it is harder to get a case heard before the court, than to actually win once you get there. “They generally reverse two out of three cases,” Abrams said. “They rarely take cases that they think are properly decided. But sometimes they have not decided themselves.”
Cooper, a Time magazine reporter, and Miller, who works for The New York Times, each face jail time for refusing to divulge sources in the Plame case. Judge Thomas Hogan of the U.S. District Court held them in contempt last fall for refusing to reveal the source who leaked to them the identity of former CIA agent Plame, whose identity was revealed in 2003 by columnist Robert Novak.
Miller and Cooper appealed the contempt order in February to a three-judge panel of the D.C. Circuit Court of Appeals, which denied the request. The case then was appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case in April.
Cooper, who had also been represented by Abrams, switched attorneys in late April. He is now represented by Ted Olson, a former Reagan and Bush administration official.
With separate attorneys, Miller and Cooper are effectively making their appeals to the high court as two separate cases.
Olson said he was optimistic that the court would take the case, saying the justices may want to weigh in on the issue that has already sparked shield laws in 34 states and prompted congressional proposals for a federal sheild law. “They often take cases to clarify confusion under federal law,” he said.
The original petitions for the high court to consider the cases were filed May 8, with the government’s arguments filed May 27. The justices received all of the petitions and briefs June 7, Abrams said.
Among the most powerful elements of support for the reporters was an amicus curie signed by the attorneys general of 34 states and the District of Columbia, Abrams says.
“It is so counter-intuitive for state attorneys general — the very people one might think would be upset at losing the benefit of evidence — to have together said that there is another value so important it outweighs the interest in getting this information. It is a powerful blow in our favor.”
Abrams said having the case petitioned in two separate arguments may not make much difference, although he added, “it may help some in giving the court two articulations of why they should hear the case.”
When asked if the reporters would be helped by the court deciding to put off its decision until a new session in October, Abrams admitted it would be good for Cooper and Miller to know they would remain free for several more months. But, he said the case would likely not turn out differently.
If the case is put off until the new term, there’s a chance a new justice would be appointed by then. Chief Justice William Rehnquist is expected to retire at the end of this term, something Abrams noted would not hurt his client.
“The chief justice has not been a big supporter of the notion of any special sort of protection for the press,” he said. “He is not someone that we’re counting on as a likely vote if the court does take the case. I have no reason to think someone new would be any worse from our perspective.”
In the event that the court decides during the current session not to take the case, Cooper and Miller would not be hauled off to jail that same day. Abram said at least one more hearing would likely be held before Judge Hogan, who offered the initial contempt ruling, prior to any jailing. He said that could be done within days of the high court’s decision.
“Judge [Hogan] would likely adhere to his prior ruling and we would talk about what should be imposed and what type of facility they would be in, or if they should be at home,” Abrams said. “But the order will have been affirmed. They would not be in jail on Monday, it would be a matter of days or weeks.”