Reporter-Prosecutor Sees Judith Miller Case from Both Sides Now

By: Lee Coppola As a journalist for 25 years and then a federal prosecutor for five, the collision between the press and the justice system over confidentiality tugs at me in different directions.

As an investigative journalist, both for a newspaper and two television stations, my stories often involved guaranteeing anonymity to my sources. In fact, covering the antics of the Mafia made it imperative that those who talked to me remained confidential.

But as a prosecutor, the power of the subpoena, backed by the firm gavel of a judge, often was necessary to convince reluctant witnesses to appear before grand juries and testify at trial.

The lawyer in me believes deeply in our system of justice, in the sanctity of the courts and the orderliness of the process. The journalist in me believes just as deeply that seeking truth and reporting it deserves protection, not interference.

So, watching Judith Miller of The New York Times, Matthew Cooper of Time magazine and others struggle with the prospect of spending time behind bars rather than break their bond with their sources presents a quandary to me about what should prevail.

Primarily, I admire the courage of Judith Miller to choose jail over breaking a promise to a source. I often told my confidential sources I'd go to jail rather than reveal their names, but I also wondered at the same time whether the thought of prison life might somehow force me to renege on my promise.

As a prosecutor, it was much easier to threaten jail to obtain the information I needed, and, in my career with the Justice Department, the threat always was sufficient. But now, I wonder whether the federal prosecutor seeking evidence about the outing of CIA operative Valerie Plame and the federal judge backing him have gone too far. And what about the judge who confined television reporter Jim Taricani to his home because the reporter refused to reveal who gave him a videotape the judge had ordered sealed? Even the reporter's source coming forth and admitting he provided the videotape wasn't enough to satisfy the judge.

Certainly it's necessary that prosecutors prosecute vigorously and judges judge judicially. And in the same vein, it's critical to our system of justice that the citizenry cooperate when crimes have been committed.

But it's also critical to our democratic way of life that journalists not be thwarted in their efforts to ferret out wrongdoing, expose corruption or shed light where others seek darkness. How often do we learn of municipal scandals or corporate shenanigans only through enterprising journalists who exchanged confidentiality for information?

In Miller's case, never having written about Plame was no deterrent to the prosecutor seeking information about whom she might have talked to about Plame. To journalists, that raises the chilling specter that even their forays into gathering information, no matter if the information never gets into print or over the air waves, could attract the attention of an aggressive prosecutor and result in time behind bars.

And for the public, which has a right to an unfettered press, the specter of sources being given up at the behest of a prosecutor and judge threatens to take away a tool vital to journalists in uncovering stories the public needs to know.

Federal courts do not recognize the shield laws that many states accord journalists to protect their sources. It is a privilege, not a right,that allows journalists to offer confidentiality to a source without, in most cases, fear of retribution from a judge. It is the same privilege doctors, lawyers and clergymen have, and journalists often tread the same sensitive ground they do in trying to gather information important to the public.

Don't get me wrong. I have seen journalists abuse the trust their craft demands. But what I'm seeing now are judges flexing their judicial muscles to prove a point that does not need proving.

It seems to me that all too often prosecutors and judges unnecessarily put journalists in their cross hairs without taking their eyes off the scope to see the larger picture. As for what Miller chose to do, and what Cooper was willing to do, their belief in a principle not protected by any federal law will, in the long run, make our democracy stronger.