UPDATE: Judge to Consider Miller/Cooper Case on Wednesday

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By: Joe Strupp

[UPDATE] The hearing before Judge Thomas Hogan to consider the next step in the case involving reporters Judith Miller and Matt Cooper will now be held on Wednesday. Unless the case continues, he will decide when and where the reporters will begin serving their jail sentences for contempt.

In his October decision, Judge Hogan ordered the reporters to be “confined at a suitable place” while they serve their time for contempt. According to The New York Times on Tuesday, federal regulations governing civil contempt suggest that the local jail, in the District of Columbia, “is the default facility.” The United States Marshals Service, which has primary responsibility for supervising people held in civil contempt in federal cases, may choose another facility “due to medical, security or other reasons.” Judge Hogan is also free to specify a different place.

“Lawyers for the reporters are likely to propose home confinement or a federal facility other than the District of Columbia jail,” the Times report revealed.

The Times report, by Adam Liptak, suggested that Miller would likely go to jail rather than name her sources. Cooper might be a little less certain of that. Cooper’s personal lawyer, Richard A. Sauber, told the Times, “I think everything is up in the air at this point.”

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Now that the U.S. Supreme Court has decided not to hear the appeals of reporters Miller and Cooper, their cases will go back to the U.S. District judge who first held them in contempt for refusing to reveal their sources in the Valerie Plame case. He will have to decide if they should still be jailed, for how long, and under what circumstances.

Judge Thomas 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.

“We’ve asked for a hearing to get this settled,” said George Freeman, a Times attorney. “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 by E&P for comment Monday morning.

In a statement, Time magazine acknowledged requesting a hearing before Hogan, offering hope that circumstances may now make it possible for Hogan’s ruling to change. “We shall ask … Hogan to reassess the privilege issues,” the statement said. “We believe that changes in the status of the Special Prosecutor’s investigation and intervening guidance from the Court of Appeals on evidentiary privileges under federal common law merit such a reassessment.

“Statements from the Special Counsel’s office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court,” Time’s statement continued. “There is reason to believe, for example, that the Special Counsel may have determined that disclosure of Valerie Plame’s identity to [columnist] Robert Novak did not violate the Intelligence Identities Protection Act. If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter’s confidential sources under federal common law.”

Meanwhile, the Supreme Court’s decision not to hear the appeal has drawn extensive reaction among journalists and observers.

Lucy Dalglish, executive director of Reporters Committee for Freedom of The Press, said she was not surprised, but had hoped for a more favorable ruling after attorneys general from 34 states and the District of Columbia wrote an amicus curie brief supporting the reporters. “If anything was going to persuade them, it was going to be that brief,” she told E&P Monday. “I hope this means the journalism community will be more galvanized and pursue this in Congress.”

The Newspaper Association of America offered a similar response, saying free press supporters should push for the enactment of a Federal shield law.

“We are disappointed in the Court’s decision not to hear the case,” NAA President and CEO John F. Sturm said in a statement. “From exposing major safety violations at nuclear plants to rooting out corporate fraud, confidential sources have played a vital role in shining the light of public awareness on the activities of government and the private sector. “

In a statement released shortly after the high court’s decision, the Times criticized the move: “We are very disappointed in the Supreme Court’s determination not to review this very vital and controversial case; we fully support the position of Judith Miller and her decision to honor the commitment she made to her Sources.”

Arthur Sulzberger Jr., chairman of The New York Times Co. and publisher of the paper, added that “It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence.”

In her own statement, Miller said, “I am extremely disappointed. Journalists simply cannot do their jobs without being able to commit to sources that they won’t be identified. Such protection is critical to the free flow of information in a democracy.” When contacted by E&P, Miller declined to elaborate.

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