Deal Struck for Timing of Miller, Cooper Supreme Court Appeal

By: Joe Strupp Special Prosecutor Patrick Fitzgerald, who has been leading the effort to send reporters Judith Miller and Matthew Cooper to jail for refusing to reveal their sources in the Valerie Plame case, has agreed not to challenge the reporters' request to stay their sentences until the U.S. Supreme Court can take up the matter.

In addition, Fitzgerald and defense attorneys for Miller, a New York Times reporter, and Cooper, who reports for Time magazine, have agreed to a timeline that will allow the defendants to file their appeals to the high court by May 10, while the prosecutor will have until May 27 to file their opposition.

"We have an agreement with Mr. Fitzgerald that he won?t take any steps against Judy and Matt until the Supreme Court makes a decision," Attorney Floyd Abrams, who has been representing both reporters, told E&P Wednesday. "One way or another, we will wind up, effectively, with a stay."

Abrams' office filed a motion on Monday with the U.S. Circuit Court of Appeals in Washington, D.C., seeking a stay in the case for both reporters until an appeal before the Supreme Court can be filed. That motion included an agreement with Fitzgerald that no action would be taken against the reporters until the appeals to the high court are done.

Fitzgerald's office declined to comment on the agreement, but the motion for a stay included language indicating a deal had been made.

Miller and Cooper each face jail time for refusing to divulge sources in the Plame case. Judge Thomas Hogan of the federal district court in Washington, D.C., 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.

Cooper and Miller appealed the contempt order in February to a three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C., which denied the appeal. The case was then appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case last week.

George Freeman, an in-house counsel for The New York Times who is working on the case, said the agreement is a positive next step. "That is good because it allows for an orderly process where by we can ask the Supreme Court to take the case and we won?t have to worry about running to jail in the meantime," he said.

The agreed upon timeline would allow the Supreme Court to take up the case before the end of its current session on June 27.

The deal follows a change in defense for Cooper, who is no longer being represented by Abrams. Former U.S. Solicitor General Ted Olson was brought in earlier this week to handle Cooper's defense, while Abrams will remain lead counsel for Miller.

"It was Time's decision, but certainly with my acquiescence," Abrams told E&P Wednesday. "That it would be good to add them to the team, to have two petitions filed simultaneously with the Supreme Court. It is not that there is any difference in the substantive petitions, but a decision was made that it would be good to add Ted to the team." Olson could not be reached for comment.

The change in counsel effectively means that the two reporters will file separate appeals to the U.S. Supreme Court and could, in theory, receive two different rulings. The court could decide to hear one case and not the other, or rule in favor of one of the reporters, while denying the request of the other.

"If it gets to the Supreme Court, it will be two separate case names and two separate petitions," Abrams said.