By: Joe Strupp
The U.S. Supreme Court will not hear the appeal of journalists Matthew Cooper and Judith Miller, who have been held in contempt for refusing to disclose who leaked the identity of a CIA agent to them.
The court’s decision not to take the case, which could have led to a major precedent for the rights of reporters to keep sources confidential, means that Miller and Cooper, who were ordered to jail for their actions, will likely have to surrender sometime soon.
The case is now expected to return to the district court level, where Judge Thomas Hogan, who offered the initial contempt ruling, would have to hold a hearing before any jailing would occur.
He will have to decide if they should still be jailed, for how long, and under what circumstances.
Hogan held Miller — a New York Times reporter — and Cooper, who writes for Time magazine, in contempt last fall, ordering them jailed for failing to disclose who leaked the identity of CIA Agent Valerie Plame.
Attorneys for the Times and a spokesperson for Time said Monday they had filed requests for a hearing before Hogan, but did not know when it might be heard.
“We’ve asked for a hearing to get this settled,” said George Freeman, a Times attorney, told E&P. “We have asked for a procedure and a schedule. I have no idea when it will be heard.”
Floyd Abrams, the lead attorney for Miller on the case, could not be reached for comment Monday morning. “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,” he told E&P last week. “But the order will have been affirmed. They would not be in jail on Monday, it would be a matter of days or weeks.”
The high court considered the reporters’ requests for certiorari on Thursday, along with hundreds of other appeal cases, and released the decision Monday morning.
“The overwhelming amount of cert [requests for appeal] are routinely denied,” Abrams said last week. “There are sometimes a few that are granted; we hope to be in that few.”
Cooper, a Time magazine reporter, and Miller, who works for The New York Times, were held in contempt of court last year for refusing to divulge the source or sources who leaked the identity of CIA Agent Valerie Plame to them. Judge Thomas Hogan of the U.S. District Court held them in contempt in the fall, ordering them to jail if they refused to reveal the source. Plame’s identity had been revealed publicly 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 was then appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case in April.
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.
Among the most powerful elements of support for the reporters was an amicus curie brief signed by the attorneys general of 34 states and the District of Columbia.
“It is so counterintuitive 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,” Abrams said last week. “It is a powerful blow in our favor.”
Ted Olson, the former U.S. Solicitor General who is handling Cooper’s defense, said last week he was hopeful, claiming, “we’ve given them very, very good reasons.”