Matt Cooper, Facing Jail, Awaits Appeal to Supreme Court

By: William E. Jackson Jr. Matthew Cooper of Time magazine says he is worried over the search for words to explain to his six-year-old son the necessity of ?obeying the law? if and when he is sentenced for contempt of court.

The White House reporter stresses that he is not a lawyer, and does not speak for counsel hired by Time and The New York Times for the joint appeal. Nor will he speculate about the prosecutor's designs in pursuing a verdict against the two journalists left standing -- the other being Judith Miller of The New York Times.

However, in contrast to the conventional wisdom now surrounding the legal showdown, following the April 19 D.C. Circuit Court of Appeals denial of en banc review, he thinks there is a fair chance that the Supreme Court will agree to grant ?cert? in what has now been labeled ?In re: Grand Jury Subpoena.? With confusion in the lower courts over the scope of a reporter's privilege to protect information from confidential sources, he hopes the Supreme Court will decide this potential landmark case.

?Some kind of protection? -- even if qualified -- should be there for journalists in his situation, he explains.

Which leg of the stool in the defense's argument will bear the greatest weight before the Supremes -- common-law privilege, claim to First Amendment protection, or denial of due process due to the use of ex parte evidence -- will emerge when Floyd Abrams seeks another stay in order to have time to seek Supreme Court review.

Cooper is reluctant to say how he thinks his legal situation is different from Miller's, and accepts that Time and the Times knew what they were doing when deciding to file a joint appeal last October.

The appeals process, Cooper admits, has become a great drain on his time, but he can still perform the job of covering the White House for his magazine and utilizing confidential sources. Miller, by contrast, continues to claim -- as at the annual meeting of the Newspaper Association of America on April 19 -- that ?I can't work in the area of national security and intelligence, covering terrorism, unless people who are not authorized to speak to me feel that they can come to me and tell me things. ... It's at the heart of what we do as journalists.?

Cooper remains convinced that it would be ?helpful? to know if columnist Robert Novak -- who first exposed Plame as a CIA covert operative in July 2003 -- has testified before the grand jury. Why? Because it bears on the question of whether or not the testimony of Cooper and Miller is really needed in order to establish that a crime was committed, under the Intelligence Identities Protection Act, by senior officials in the executive office of the president when leaking Valerie Plame's identity to the press.

It seems clear, nevertheless, that the redacted evidence -- to which attention was called by eight blank pages in the appeal court's decision in December -- did not persuade the judges that the defendant witnesses should be let off the hook.

The court probably had the benefit of Novak's deposition or testimony before the grand jury, as most everyone involved thinks that the conservative columnist has not been let off scot-free by Patrick J. Fitzgerald, the special prosecutor. Perhaps he did not provide the treasure trove that the prosecutor expected? Moreover, the special prosecutor later informed the court of appeals that ?the factual investigation -- other than the testimony of Miller and Cooper and any further investigation that might result from such testimony -- was for all practical purposes complete? back in October. According to Floyd Abrams, who is representing both reporters, Fitzgerald is now ?done with everyone else, done with Robert Novak one way or the other, and done inquiring of various government officials.?

But ?one of the ironies? of the Plame case, Cooper points out, is that he and Miller are in court because they are good at keeping secrets, while at the same time Fitzgerald and the judges are worried about them having ?loose lips? if the appellants and their lawyers are allowed to see the ex parte submissions by the prosecutor.

On the other hand, Judge David S. Tatel, in a separate concurrent opinion on the decision to deny a re-hearing, wrote that he ?certainly understood petitioners' preference for reviewing the secret evidence themselves,? but given the indispensable secrecy of grand jury proceedings, it is not ?an abuse of discretion? for the district court to have denied them that option: ?Telling one grand jury witness what another has said not only risks tainting the later testimony (not to mention enabling perjury or collusion), but may also embarrass or even endanger witnesses, as well as tarnish the reputations of suspects whom the grand jury ultimately declines to indict. Strong guarantees of secrecy are ... critical if grand juries are to obtain the candid testimony essential to ferreting out the truth.?

The federal judge went on to enigmatically assert that ?the disputed evidence here relates to the government's conduct of its investigation, not the witness's own conduct.? The two reporters face only ?a coercive penalty, not punishment for past actions? (in contrast to government leakers). To avoid jail they ?need only abandon their unlawful resistance and testify before the grand jury.?

But is this not another way of saying that the evidence provided in camera is not conclusive as to whether a crime was committed? How could the court know that the witness's testimony would seal the indictment of the criminals, unless there is already established a rather persuasive case as to who leaked? Perhaps Cooper and Miller talked to the same source or sources, and the ex parte proceedings assist in determining the reasonableness of the grand jury subpoenas.

Everyone may be chasing the wrong hare, however. According to a former editor at The Washington Post: "In my judgment as an editor the story now is mainly what the hell is the special prosecutor doing? He has had two years to get the answer to a very simple question. He apparently has the answer but isn't making his findings known. Why not?" Cooper and Judith Miller are sidebars, he says, "certainly less important sidebars than Robert Novak."