Appeals Court Rules Against Reporters in Plame Case

Bump and Update: Here are some issues that appear to remain despite the Court's ruling. Does anyone have answers or know if these are even valid questions?

  • Why did Judith Miller tonight make a big deal out her lawyer's lack of ability to get grand jury reports that could establish whether Valerie Plame fit the definition of a CIA undercover officer? That's what she appeared to say on Greta's On the Record, although she didn't mention Plame's name. Is it because (1) If Plame didn't fit the legal definition, then no crime was committed by the white house official when he disclosed her identity, and (2) since the grand jury investigates crime, if no crime was committed by the leak of her identity, then there is no justification for the grand jury to seek the information from Miller?
  • Did Novak get a subpoena? Did he take the 5th? Was he immunized and did he sing? Or, has special prosecutor Fitzgerald been dragging his feet in seeking an immunity order for Novak while he exhausts all other avenues? Who does Fitzgerald have in his cross-hairs besides Libby, who has waived all confidentiality privileges?

  • If Novak took the 5th, for what crime did he take it? Most people agree his publicizing Plame's identity was not a crime. The law prohibits disclosure by those with authorized access to classified information and the like, not to journalists, unless they habitually make such disclosures. Was there a cover-up attempted - did Novak initially agree to one?
  • Does Judith Miller have a weaker case? If so, is it because she never actually wrote about Plame but just was researching the story? Or is her case weaker because she wasn't really researching or working on a story, she got the info gratis as gossip?
  • What information about other sources did Fitzgerald get from Matthew Cooper or from the information Cooper provided the first time around that makes him so determined to force his compliance with the second subpoena?

For those who may be new to the Plame investiation,

  • Novak's initial column stated (NYTimes, Cirumspect Columnist, 12/31/04):

''Wilson never worked for the C.I.A., but his wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me his wife suggested sending Wilson to Niger.''

original post: 10:15 am

The D.C. Circuit Court of Appeals has ruled there is no reporter privilege that will shield New York Times reporter Judith Miller and Time Reporter Matthew Cooper from revealing their sources in the grand jury investigation into who leaked the identity of former C.I.A. operative Valerie Plame.

``We agree with the District Court that there is no First Amendment privilege protecting the information sought,'' Judge David B. Sentelle said in the ruling, which was unanimous.

Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse Tuesday's ruling. ``Today's decision strikes a heavy blow against the public's right to be informed about its government,'' Abrams said in a statement.

Miller and Cooper face up to 18 months in jail for their refusal to name their sources. Actually, it should be much less than that. They can go to jail for the life of the grand jury, which is 18 months. The grand jury has been meeting for some time, so it would only be for the amount of time left in its 18 month term. Unless, of course, the grand jury hasn't finished at the end of 18 months and a new grand jury is empaneled. Then the 18 months begins again.

If Miller or Cooper could prove to the satisfaction of a judge that they wouldn't talk no matter how long they were held, they could be let out. This is for civil contempt....should a criminal contempt proceeding be instituted, that's a whole different ball game.

Opinion is here. [Note: corrected to reflect opinion is by D.C. Circuit, not 2nd circuit as I originally wrote.]

Update: Orin Kerr at Volokh reports that bloggers and pajamas were referenced in a judge's separate opinion:

In a separate opinion rejecting the notion of a common law privilege, Judge Sentelle pointed out some of the difficulties of applying such a privilege in light of the blogosphere:

Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?

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    I would say Mr. Abrams is looking at only one side of the public's right to know. For if the public has the right to be informed about its government, it also has the right to know who is doing the informing. This situation is something of a Catch-22.

    Gannon/Guckert said HE didn't have to testify in front of the grand jury. Why not?

    I don't get it. Novak is the first person to "out" Ms. Plame, but they go after other journalists instead. Why is he off the hook?

    Right. Novak printed a story. Neither Miller nor Cooper did. And they're threatend with jail time? Makes no sense.

    George, I'm not sure, but from what I recall, they are going after these two to try to discover who the source was for the Novak story, since it is alleged that said source shopped the story around. Can they put Novak before the grand jury and compell him to testify if he may end up being indicted by the jury?

    Justice at is best! Novak is still working at CNN as a “Fair and balance” reporter. The monster should have been fired and jailed for his part in the Valerie Palmer case. It is treason to reveal a CIA. ….Unless you know a higher one in king george administration. I received an E-mail the other day and it brought me back to 9/11. The video is about “What hit the pentagon on 9/11” It is that most of us has saw in pictures since that fatal day but what is new for me is the article “Comments on Pentagon strike, available in both English and French” That is very interesting. It was well research with details as well as lots of questions still left unanswered. What hit the pentagon on 9/11

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#7)
    by Che's Lounge on Tue Feb 15, 2005 at 01:30:53 PM EST
    Another blow to freedom of the press because these opportunists allowed themselves to be manipulated by Bushco. They should get locked up just for being stupid. Felony Stupid.

    Can they put Novak before the grand jury and compell him to testify if he may end up being indicted by the jury? One possibility as to why Novak was not subpoenaed before the grand jury is that he may be a target of indictment. Miller and Cooper obviously know who Novak's source is, which is why they are fighting their subpoenas. One could make the assumption that the source and Novak are both complicit in the revelation of Plame's identity. Purely conjecture on my part.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#9)
    by cp on Tue Feb 15, 2005 at 10:45:37 PM EST
    if novack is the potential target of an indictment, it has nothing to with l'affaire de plame, since he broke no law. hence, he would have no reason to "take the 5th". neither have the other reporters. the law regarding identifying covert operatives only applies to government officials. since neither mr. novack, nor the other two reporters are government officials, it doesn't apply to them. what these two reporters are being threatened with is contempt, for refusing to identify their sources. were novack called to testify, that would really be the only sword the government could hold over him. i'm surprised at TL for not knowing this, or at least not making the distinction clearer to its readers.

    CP, it's clearly stated in the post. Read it again.

    "the law regarding identifying covert operatives only applies to government officials." Revealing a spy's identity is a crime for gov't officials under HWB's law, but so far as I know it is still a CRIME to reveal info directly affecting national security under old law and the Patriot Act. Yet more hypocrisy. Lynne Stewart makes a SINGLE statement to Reuters, and the wingers all 'know' she is a terrorist, but these people fry potentially HUNDREDS of operatives (Novak also outed Plame's cover COMPANY), and all you hear is fingers drumming on NYT/CNN/FOX/etc. desktops. I'm not a lawyer, but the only reason why Novak is still not in chains is because he has friends in the WH, and the only reason why Miller still has a job is that the NYT is a scurrilous publication that gets 1,465 GIs killed because they are too cowardly to print facts instead of Bush's lies. Meanwhile, the cowardly traitors at 1600 rolodex an important spy's cover, destroy a huge chunk of our intelligence community, to scare the rest. This on top of the Al Qaeda mole Rice outed to the NYT (to the fury of the British gov't). And, oh yeah, 50 ignored warnings, and their "Hate America, We Need the Money!!" program in the ME, which is treason by blowback on a scale we have never seen in this country before. Good thing Bush, via Novak and Miller, wasn't around to give away the Manhattan Project to the Nazis. Wouldn't that have been a kick?

    Has Novak been question by Fitzgerald's investigators? If so, he might did take the Fifth, to avoid a perjury or making false statements charge.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#13)
    by Tom Maguire on Wed Feb 16, 2005 at 02:35:39 PM EST
    As to the probable motivation of Ms. Miller's complaint - it is an argument that Jack Shafer takes seriously in Slate today, and which I dismissed a while back when it emerged in the WaPo. The gist - unless the prosecutor can show he is on the road to proving a *crime* (not just a big national security screw-up), he can't be jailing people. Now, can we play "Answer a question, ask a question"? The Editor and Publisher makes a similar argument to one here - since Ms. Miller did not publish, her defense is weaker. My argument is that this is exactly backwards. Are we really saying that *if* Novak had *not* published, today he could face criminal and/or contempt charges, but since he did publish, he is off the hook? Suppose, hypothetically, that Miller and Cooper got the leak in the same meeting. Miller says, gee, a bit dodgy, I won't publish. Cooper says, gee, I have a stronger legal protection if I publish now. Do we really punish Miller (in my *hypothetical*) for showing discretion? Backwards.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#14)
    by cp on Wed Feb 16, 2005 at 03:01:55 PM EST
    you're right. it was late, and i didn't read the entire item. shame on me!

    "The gist - unless the prosecutor can show he is on the road to proving a *crime* (not just a big national security screw-up), he can't be jailing people." The prosecutor? The COURT is threatening to jail them for violating court orders, not the prosecutor who is serving the Grand Jury. "Big ...screw-up." That's so polite it's almost like no one is dying for total lies about national security RIGHT NOW. It's a screw-up if you leave the bathroom light on. Destroying or deeply-harming the ability of this country to get intel on the ACTUAL existence of nuclear materiel smuggling is treason of the most serious sort, the kind that a long list of people have gone to long prison sentences over. Miller serves up Chalabi's lies, Rove's lies, Cheney's lies, and then gets Novak's back after he does the job. Whatever she is, it is certainly not 'innocent.' This is the Golden era of 'strain at a gnat, swallow a camel.' And, yeah, that's you I'm calling a double-humped, fat-lipped, splay-footed, smelly caravan follower-- Ms. 1,500 good soldiers gone. You're a walking national security disaster. No wonder your Bush-mafia keepers protect you.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#16)
    by Tom Maguire on Wed Feb 16, 2005 at 03:41:55 PM EST
    Sorry, Paul, when I summarized the argument I inadvertently stated that it was the prosecutor who was jailing people, when of course it is the court, for contempt. I hope you followed the link to get the non-gist. And I think you may be able to help me with a different question - I was wondering whether the inclination of lefty legal analysts to evaluate legal arguments that might aid Ms. Miller are at all influenced by her WMD reporting. Put another way, is this legal issue, and their analysis thereof, separable from her past writing? Your thoughts?

    I think it's due to the great decency of most people, and the reluctance of liberals to want to penalize the actions of journalists. But we are way beyond that pale in this case. She should have resigned when the WMD lies were fully outed. But the big corporate newspapers love liars and cowardly employees. They haven't seen or employed a journalist at the NYT in half a decade.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#18)
    by legion on Thu Feb 17, 2005 at 07:54:43 AM EST
    I think I just realized a very interesting possibility... Let me lay this out: - It's illegal for gov't official, someone with authorized access, to release classified info (like Plame's status). - Novak can't claim 5th Amendment because reporting what a gov't official told him isn't breaking the law, even if the official is a legit target. - Everyone's wondering why Novak hasn't been fingered yet. Here's the thing - we're all assuming Novak didn't have legit access to the info in the first place. With all the flak lately about the administration co-opting "journalists", what are the chances Novak actually got a clearance in exchange for his work pushing propaganda for Bush? That would basically make Novak himself the leaker...

    ... When they came for the lawyers, I said nothing... ... When they came for the journalists, I said nothing.... ... When they came for bloggers....?

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#20)
    by Ed Drone on Thu Feb 17, 2005 at 11:27:36 AM EST
    I thought I read that Novhack had appeared in front of the Grand Jury, and the implication was that he had "sung." And Miller's suggestion that outing Plame wasn't a crime is obviated by the fact that the Grand Jury and the prosecutor wouldn't be continuing without strong probability that it WAS a crime. They can't make sure it wasn't a crime if they don't have all the information, so that's why they're asking all those questions. Ed

    mfox, When they came for the lawyers.......America stood up and cheered;-) Sorry, but it comes with the territory. For far too many people, the greatest exposure to lawyers are shyster ambulance chasers running TV commercials and their congressional representative, neither of which paints a very becoming picture of the profession. Sad but true.

    Sadly, no. The first thing Gukert did was lawyer up. It's pretty funny. The usual anti-gay, anti-lawyer, anti-special favors, anti-immorality wingers get caught out buying THOUSANDS of Oxycontin, or selling their naked arse on the Internet, and all of a sudden they lawyer up like God Himself was defending them. Try being that poor kid whose intestines were sucked out by the faulty pool pump for a split second, and these HEROES of anti-lawyer (etc.) righteousness turn right into the most squealing of pigs. Oink my God, Not I!! I am too important!! Not I!! Red Hen is dying by the tens and twenties in the Iraq Fiasco, but if there is any vulnerability for Princess Pea, they want Kevlar for their toilet seats. Hilarious. What a pile of piles the wingers really are.

    Re: Appeals Court Rules Against Reporters in Plame (none / 0) (#23)
    by Che's Lounge on Thu Feb 17, 2005 at 02:23:55 PM EST
    Well Paul, it seems some animals are more equal than others.

    Bush don't read so good. He thought it said Two Legs Bad, Four Legs Good. When they said Be All You Can Be, he said, can't, already sent his brain to the glue factory thirty years ago.