Olson: Cooper Defense to Rely on Precedent, Common Law

By: Joe Strupp Attorney Ted Olson, who has taken over defense of Time magazine reporter Matthew Cooper in the Valerie Plame case, says he plans to rely more on case law and common law, instead of the First Amendment, as he prepares to argue his client's right to a reporter's privilege before the U.S. Supreme Court.

"We felt it might be worthwhile to take a different approach," Olson, President Bush's first solicitor general, told E&P. "We might focus more on the common law privilege, whether there is a privilege that stems from the First Amendment or from various case decisions."

Olson, who served in both the Reagan and George W. Bush administrations, knocked down theories that his past Republican Party connections might help him if the case goes before this Supreme Court. "A lot of people think that," he said. "But I don?t think that makes any difference to the court."

Olson, who replaced attorney Floyd Abrams earlier this week, declined to cite specific case law examples he may reference. But he said the broader approach is likely to provide more support for the argument that Cooper can keep his sources secret.

"Case law and the federal rules of evidence allow the court to look at the laws in the states, to determine what evidentiary rules shall be in the federal courts," Olson told E&P. "The federal rules of evidence allow the court to define the law of privilege in the case of journalists' sources."

Time Deputy General Counsel Robin Bierstedt said Olson was not seen as a better attorney for Cooper than Abrams, but simply as someone who would offer a second voice.

"He has represented journalists and news organizations for nearly three decades and has argued 41 cases before the Supreme Court," Bierstedt said about Olson. "He and his firm certainly have experience before the Supreme Court."

Cooper, in an e-mail to E&P, also praised both attorneys. "For us to be able to file petitions of appeal to the Supreme Court from not one but two of the nation's great lawyers -- Floyd Abrams and Ted Olson -- and their teams is an incredible one-two punch," Cooper wrote. "Why wouldn't you want to double your strength and arguments at this important moment?"

Olson also represented President Bush and Vice President Dick Cheney before the Supreme Court in the famous Gore v. Bush case that decided the disputed 2000 presidential election.

Cooper and fellow reporter Judith Miller of The New York Times each face jail time for refusing to divulge sources in the Plame case. Judge Thomas Hogan of the U.S. District Court 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.

Milelr 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 then was appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case last week.

Olson's law firm, Gibson, Dunn & Crutcher, provided amicus briefs in support of Cooper and Miller when they went before both the district court and the three-judge panel of the appeals court.

Abrams, who had been representing both Cooper and Miller, will continue to handle Miller's defense as the two reporters seek an appeal before the Supreme Court next month. Abrams said Wednesday that he had no objections to Olson taking over, adding that "it would be good to add [him] to the team."

Olson also praised Abrams. "I have the greatest respect [for him]. He is a fine lawyer," Olson said. "You might look at it as a two-heads-are-better-than-one approach."

Now that Miller and Cooper are being represented by different attorneys, each of their Supreme Court appeals also will be separate, Abrams has said. Olson said they will still consult with each other, but the separate arguments may make a stronger case overall.

"We might appeal in slightly different ways, this common law privilege," Olson said. "And you only need four judges to agree to hear the case. It gives the court an opportunity to look at the case from a different perspective than the one that has already been decided [in lower courts] in a different way."

As long ago as February 15, E&P columnist William E. Jackson, Jr. was reporting discontent among some in Cooper's corner over the joint appeal decision that linked Cooper with Miller, both represented by Abrams, and with the absolutist First Amendment focus of the appeal.

Special Prosecutor Patrick Fitzgerald, who has been leading the prosecution against Miller and Cooper for refusing to reveal their sources in the Plame case, has agreed not to challenge the reporters' request for a stay until the Supreme Court can take up the matter.

In addition, Fitzgerald and Abrams this week 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 his opposition.

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.

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