Fitzgerald Hits Judith Miller Hard in Tuesday Decision

By: E&P Staff Special prosecutor Patrick Fitzgerald went after Judith Miller harshly Tuesday while arguing that the reporters at the center of the Valerie Plame/CIA case should not be allowed to serve their sentences for contempt as home detention. A federal judge is expected to decide Miller and Matthew Cooper?s fate on Wednesday.

Speaking of Miller, Fitzgerald wrote, "Certainly one who can handle the desert in wartime, is far better equipped than the average person jailed in a federal facility." Miller, of course, covered (some say, mis-covered) the search for weapons of mass destruction in Iraq following the U.S. invasion.

Fitzgerald mocked Miller's claim that being denied cell phone and e-mail privileges would be adequate punishment: "Forced vacation at a comfortable home is not a compelling form of coercion."

Miller "could avoid even a minute of separation from her husband," he wrote in another section, "if she would do no more than just follow the law like every other citizen in America is required to do."

Even more troubling for Miller, Fitzgerald seemed to suggest that she could face criminal charges, in addition to her contempt citation.

"The court should advise Miller that if she persists in defying the court's order that she will be committing a crime," Fitzgerald wrote. "Miller and The New York Times appear to have confused Miller's ability to commit contempt with a legal right to do so....

"Much of what appears to motivate Miller to commit contempt is the misguided reinforcement from others (specifically including her publisher) that placing herself above the law can be condoned."

Catherine J. Mathis, a spokeswoman for the Times, said on Tuesday, "We intend to respond to the special counsel's views in court tomorrow."

Fitzgerald also quoted from various journalists to shoot down the reporter's claims that she represents accepted journalistic standards. Among his sources: Bob Woodward, Anthony Lewis, Mark Bowden, Norman Pearlstine of Time, and Steve Chapman of the Chicago Tribune. Fitzgerald noted that these "journalists, First Amendment scholars and opinion leaders flatly disagree with the position Miller is taking at the behest of the New York Times."

He zinged Miller again here: "Special Counsel appreciates that Miller is also someone who thinks deeply. She is an investigative journalist who has won a Pulitzer Prize and authored several books, including one titled 'God Has Ninety Nine Names' that contains a chapter singularly insightful as to the history and orientation of Egyptian terrorist groups. Neither Special Counsel, nor this Court, should lightly conclude that Miller will spend months in jail without thinking more deeply about the issues discussed above and, in particular, thinking about whether the interests of journalism at large and, even more broadly, the proper conduct of government, are truly served by her continued refuals to obey this Court?s order to testify in an investigation in which she is an eyewitness and her putative source has been identified and has waived confidentiality....

"Miller?s views may change over time, especially if what is viewed as her 'irresponsible martyrdom' obstructing an important grand jury investigation is seen to undercut, not enhance, the credibility of the press and, with it, any case to be made for a federal reporter?s shield law."