On the Latest Ruling in Plame Probe

By: William E. Jackson Jr. It has been described as the greatest confrontation between the press and the government in a generation. What happens when the journalistic principle of protecting confidential sources clashes with the public interest in prosecuting a crime?

The legal drama surrounding the Valerie Plame/CIA probe took another step toward its final act today when a three-judge panel of a federal appeals court ruled that Judith Miller of The New York Times and Time magazine reporter Matthew Cooper enjoyed ?no First Amendment privilege protecting the information sought? by prosecutors.

While the decision is appealed to the full Court of Appeals for the District of Columbia Circuit, Judge Thomas F. Hogan could still send Cooper and Miller to jail at any time for contempt. But while the two reporters are now inextricably linked, the latter has much the weaker case, to such an extent that some other reporters and attorneys who have also been involved in the probe question the legal handling of the joint Cooper/Miller case.

Special prosecutor Patrick Fitzgerald, the U.S. Attorney in Chicago, was appointed in December 2003 to conduct a criminal investigation under the Intelligence Identities Protection Act. For many months, journalists from several big-gun news organizations were swept up in a probe that had been precipitated by a July 14, 2003, Robert Novak column revealing the identity of CIA undercover officer, Valerie Plame.

Novak cited as his sources two high-level government officials, widely believed to be located in the Executive Office of the President. Several other journalists, including Walter Pincus of The Washington Post, also reported that they received the same information from administration officials.

Fitzgerald eventually subpoenaed or otherwise demanded grand jury testimony from at least five reporters, including Pincus, two of whom had written about the Plame case relying on conversations with confidential sources. All but one of them agreed to give limited depositions about their conversations with Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby after ?the specified Executive Branch official? (Judge Hogan's phrase) formally waived their oral confidentiality agreements. In the case of Pincus, Libby's lawyer spoke to the journalist's lawyer to release him, because the reporter did not accept the waiver idea in the first place.

As for Novak, it is not known if he was subpoenaed or if he has testified. However, it is widely believed by reporters and lawyers involved in the probe that he reached a negotiated ?arrangement? with Fitzgerald -- and that he ?sang.?

In September, Fitzgerald subpoenaed the last of the print journalists. This one had published nothing about Plame: Judith Miller of The Times, also known for her flawed reporting on weapons of mass destruction in Iraq. Miller refused to comply. In the meantime, Cooper had received a second subpoena, this one ordering him to testify about sources other than Libby--and he refused to comply.

The Times has not been reticent in taking on the special prosecutor (and vice versa). The editorial page hammered Fitzgerald, saying that ?in his zeal to compel reporters [Cooper and Miller] to disclose their sources, he lost sight of the bigger picture.? The newspaper called the Plame case ?a major assault? on relationships between reporters and secret sources, the very essence of reporting on the abuse of power, in "a leak probe gone awry.?

The prosecutor countered by calling for a ?reality check,? arguing that Miller ?has no special privilege, qualified or otherwise.? In October, Judge Hogan, rejecting the notion that Fitzgerald was on ?a fishing expedition,? held Miller and then Cooper in contempt and ordered them to jail. The sentences were stayed pending the consolidated appeal by Time and The New York Times, which was denied today.

The chief counsel for the two reporters in the dock, representing both the Times and Time, is Floyd Abrams, the best-known First Amendment lawyer in the country. (Cooper added a criminal lawyer, Richard Sauder of Washington, to advise on sentencing issues.)

In recent days, however, I was told by a top editor for one of the major national news outlets that when Abrams made his arguments in the district and appeals courts, and in the press, ?lawyers for media organizations other than the Times were appalled by the ham-handed representation he provided in the case of Miller. He may be on the way to helping set an awful precedent for the rest of us by mishandling this case.?

Based on that comment, and other conversations I've had, it is obvious that some attorneys for the other media empires caught up in the legal showdown think Abrams has acted like a ?First Amendment Chicken Little? (in Slate columnist Jack Shafer's phrase) yelling ?chilling effects? when presenting a weak case. He has pushed the envelope by insisting that Miller has a privilege way beyond what reporters can claim under existing law. These other lawyers' main concern is the ?absolutist? position taken by Abrams when presenting a broad legal defense of Miller on First Amendment grounds.

Arguably, Miller did not have a ?confidential source,? because Libby had already told the prosecutor he was the source. Miller's subpoena called for her to testify about conversations with a "specified" government official. Libby's waiver was not relevant. Her grounds for not appearing before the grand jury appear to be far weaker than the journalists who actually wrote about Plame. She claims to have been ?reporting? on undercover agent Plame's identity in mid-July 2003 (or ?contemplated? reporting, to use Judge Hogan's word).

Abrams' summary argument, presented to the court of appeals on Dec. 8, complained that ?a disturbing societal price? was being imposed on the Times and Miller for writing ?nothing at all.? However, as Ben Wittes points out in the December 2004 Atlantic, ?the oddity of the reporter's privilege is that reporters themselves are sometimes party to ... illegal disclosures that they then ask to be protected from testifying about.?

Just what is principled about Miller's stand against divulging her sources, since she never wrote a single article on the subject of the investigation? Why can the courts not distinguish between protected press privileges for Time reporter Cooper -- who wrote about Plame in the time period in question -- and Miller?

Is a reporter criminally exempt when not actually working on an assigned story, just by virtue of making and receiving phone calls to and from executive branch officials she knows, or, say, chatting with them outside the office? Either she had First Amendment protection when working on a story, or she did not because she was not "reporting" on the matter. The public interest in effective law enforcement would seem to counter-balance any negative effects from requiring a citizen who, incidentally, happens to be a journalist -- and who has evidence of a potential crime -- to testify. In short, the Times' legal position in the Plame case has the markings of a faux case.

Moreover, as Howard Kurtz wrote in The Washington Post (?On Jailing Reporters,? December 15): ?Let's face it: The Valerie Plame investigation is a lousy test case for the press. Even First Amendment champions are hard pressed to work up much enthusiasm for protecting administration leakers who outed a CIA operative to damage her husband.?

It may be difficult to find any witness among her reporter colleagues to testify that Miller was actually "reporting" or "doing research" on Plame in that mid-July 2003 timeframe, when Miller and her paper were under fire for seriously botching the Iraq WMD case. No one I have talked to remembers such an effort, although the newspaper, in its article about the latest court ruling today, declared flatly, "she conducted interviews in contemplation of a possible article." One of her strongest defenders, Times Publisher Arthur O. Sulzberger Jr., has suggested that her investigation of Plame may not have reached the ?editorial process? stage. How is it to be determined if she was involved as a journalist (in regard to Plame) beyond the gossip stage?

[To be continued.]