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Reporter Switches Lawyers in Plame Appeal

Time Reporter Matthew Cooper, appealing the civil contempt of court ruling against him in the Valerie Plame investigation for refusing to comply with a grand jury subpoena asking for information about his sources, has hired a new lawyer - ultra-conservative, former Solicitor General Ted Olson. New York Times reporter Judith Miller is staying with First Amendment guru Floyd Abrams.

Why the switch? The reporters' case is about to be filed in the Supreme Court. Time and Cooper may think the Court is more likely to agree to hear the case if Olson is on board. The reporters lost in the D.C. Circuit Court of Appeals, so the Supreme Court is the only thing standing between them and a jail cell - unless they decide to cough up the information sought by the Government.

I don't think Ted Olson's connections are going to sway the Court. But what the change does accomplish is allow each to make their own argument in separate filings - kind of like having two bites of the apple, or at least, twice as many pages in which to make the argument.

Of course, maybe Olson thinks Cooper has a stronger case than Miller. Miller never actually wrote about Valerie Plame. She may have gotten the informaton while researching an article-- or maybe she got the info gratis, as gossip. Also, this is the Government's second subpoena of Cooper, and he complied with the first one. Maybe Ted Olson sees some wiggling room there.

The Government has agreed not to oppose either reporter's request for a stay of any jail sentence pending review by the Supreme Court. You can read the text of the order being appealed here (pdf).

Clients facing jail change lawyers for all sorts of reasons. Maybe Abrams was not providing a rosy-enough outlook on the Supreme Court action, so Cooper shopped around for someone who was more positive about his chances. Cooper, in interviews that I've seen and read, has appeared more agitated by the prospect of jail than Miller. He's attributed his agitation to not knowing what to tell his young son. The New York Times quoted him (2/16/05):

He said he was not dwelling on the chance that he might go to jail, and had yet to explain his situation to his 6-year-old son. ''Why worry him until you have to?'' Mr. Cooper said. ''I'm teaching him about respect for the law and the rule of law, and it's hard to explain why Daddy finds himself in a legal predicament.''

On a related note, it's still not known what course of action Robert Novak took with respect to the grand jury. Here are the unanswered questions as I viewed them in February, when the Court of Appeals ruling came down:

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?

Finally, on an unrelated but interesting note, Cooper is married to former Clinton advisor Mandy Grunwald. He also moonlights as a stand-up comedian.

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  • Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#1)
    by Talkleft Visitor on Thu Apr 28, 2005 at 01:38:05 AM EST
    Olson was the federal prosecutor and a member of Bush's team going way back. The reason for hiring him in the coverup of direct White House misconduct outing a spy for political revenge is JUST like the reason to fork out $8 Million to Ralph Reed and Grover Norquist to get Tom Delay's ear. It's called GRAFT. It's money for influence. And for Olson, it's working the levers to keep Bush from ever admitting a single crime he's covered for or committed. I wonder how much the Capo is charging these days. "But sir, when Mr. Libby called me, he said it was your personal request."

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#2)
    by Talkleft Visitor on Thu Apr 28, 2005 at 04:51:38 AM EST
    It says something about the sorry state the repiglicans have made of the judicary. To get a "FAIR" hearing before a Nazi judge gee suprize!, you need a Nazi lawyer.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#3)
    by Talkleft Visitor on Thu Apr 28, 2005 at 06:05:39 AM EST
    Who else thinks this reporter should visit the clink if he doesn't spill? Blaghdaddy's opinion: The 1st Amendment right extends to exactly that: freedom to speak. There exists in law NO precedent allowing a reporter to refuse to give information based on "confidentiality," is there? You got confessor priests and doctors and lawyers, right? Where is a journalist's LEGAL right NOT TO have to answer police questions because he "promised not tell?" He's an ordinary citizen who makes a living with his pen, he merits no special treatment from having to divulge info. Funny, Blaghdaddy thinks that if this same reporter had a connection to someone who had leaked, say, a document showing Bush had been recorded saying that he knew the WMD hype was bogus, this reporter would have already made their quota of license plates in the big house by now for refusing to talk... Whatayou guys think?

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#4)
    by Talkleft Visitor on Thu Apr 28, 2005 at 06:29:48 AM EST
    This leaker is as hard to find as Osama. I have to admit that if the politics of this leak were different, I would probably feel more strongly about the limited privilege of the press to protect the identity of its sources, so I am on the fence on this one. I do wish that the prosecutor would find a way to indict Novak. A little jail time would be educational to this guy. I am sure Novak would rather do a few months of hard time for the journalism trade, right?

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#5)
    by Talkleft Visitor on Thu Apr 28, 2005 at 07:21:49 AM EST
    Doesn't the law make it illegal for someone to make public the fact that a cover CIA agent is exactly that? If so, why are they looking for the leaker? Novak was the one who put it on the page, his paper printed, he's the one who "made it public," whoever told him, and the culprit is still drooling all over national televion for the Crock News Network. If he didn't know that Plame was a covert agent (hard to argue when that's what you wrote), he might have an out and the leaker would be on the button...but he did know, that was the point of the article. Question: Why isn't Novak making hubcaps right now?

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#6)
    by Talkleft Visitor on Thu Apr 28, 2005 at 07:21:59 AM EST
    Wasn't Olson the one who was caught out lying to the Supremes about torture? I doubt that went down well.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#7)
    by Talkleft Visitor on Thu Apr 28, 2005 at 07:58:42 AM EST
    While I'm highly sympathetic to a reporter's right to protect a source, I'm just not moved in this instance. They aren't protecting a source. They reporters are, themselves, witnesses to a crime. They aren't being asked to finger someone who knows something. They are being asked to testify as a witness of someone else's activity. It doesn't even strike me as a small difference so I just can't side with the reporters here.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#8)
    by Talkleft Visitor on Thu Apr 28, 2005 at 08:15:10 AM EST
    Bang-On!

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#9)
    by Peter G on Thu Apr 28, 2005 at 08:28:15 AM EST
    True that Olson is politically in line with the Bushies, but he's also a top U.S. Supreme Court advocate with superlative professional skills. A very appopriate move for Cooper. As for constitutional rights, the First Amendment protects "the freedom of the press" in addition to "the freedom of speech." From this, I deduce that the "press" has more "freedom" than non-press individuals and entities, and was intended to have those forms of "freedom" necessary to fulfill its special, protected function in a free society. This could plausibly include the right to protect confidential sources. That's one way you reason through a constitutional law problem. So, the fact that the words "confidential source" don't appear in the First Amendment doesn't mean there is no such right.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#10)
    by Talkleft Visitor on Thu Apr 28, 2005 at 08:30:21 AM EST
    Yes, but doesn't "journalistic privilege" traditionally extend only to protect people who wish to speak the truth without fear of prosecution? You shouldn't be able to break the law or tell lies and expect a reporter to fall on his sword for you. As a journalist with integrity, he should never promise confidentiality to cover lies or a crime, and a crime is being investigated...no privilege...

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#11)
    by Talkleft Visitor on Thu Apr 28, 2005 at 09:21:36 AM EST
    If I wanted to slander a private citizen all I have to do is get a reporter to do is print it. If I gave the address of a witness in a mob trial to a reporter and he printed it and the witness was murdered should I, the reporter be considered and charged as part of a conspiracy? I think this is the issue. Does a reporter have the right to protect criminals. If the reporter exposed criminal I don't think his source is relevant and be protected.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#12)
    by Talkleft Visitor on Thu Apr 28, 2005 at 11:13:25 AM EST
    Ginger Yellow: I'm pretty sure that wasn't Olson but someone else at DOJ. I can't recall the name though.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#13)
    by Talkleft Visitor on Thu Apr 28, 2005 at 12:02:13 PM EST
    Paul, you are, well, to be charitable about it, misinformed. Supreme Court advocacy is a very narrow specialty. There are very few lawyers in the country who have any experience at it, and far fewer who are any good at it. Olson is one of the best Supreme Court advocates in the country. Cooper needs the very best advocate he can find to convince the Supremes not to send him to jail.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#14)
    by txpublicdefender on Thu Apr 28, 2005 at 01:11:20 PM EST
    While I'm highly sympathetic to a reporter's right to protect a source, I'm just not moved in this instance. They aren't protecting a source. They reporters are, themselves, witnesses to a crime. They aren't being asked to finger someone who knows something. They are being asked to testify as a witness of someone else's activity. It doesn't even strike me as a small difference so I just can't side with the reporters here.
    I have a hard time with this case, too. On the one hand, I don't think a reporter should be protecting someone who committed a federal crime just because they want to protect a source. On the other hand, I do want the press to be able to report on government misconduct. Sometimes, federal employees or others with access to secret government information break the law by revealing information to a reporter which is "secret" or "classified" because they believe that the government is actively misleading the American people. Their motives may be pure, but, technically, they are breaking the law. The chance of such a whistleblower being willing to reveal such things to a reporter diminish greatly if they don't believe that the reporter they talk to will protect their identity. I think there are good policy arguments both ways, and Congress could be justified in creating such a privilege as part of the rules of evidence, but I'm not quite sure that the 1st Amendment necessitates a "reporter's source" privilege.

    Re: Reporter Switches Lawyers in Plame Appeal (none / 0) (#15)
    by Talkleft Visitor on Thu Apr 28, 2005 at 06:41:36 PM EST
    Posted by DBL at April 28, 2005 01:02 PM "Paul, you are, well, to be charitable about it, misinformed." I misstated Olson's job description last night, but otherwise this IS IN FACT the hiring of a co-conspirator to handle (hide) an act of conspiracy. An act of calumny that has NO valid reason for occuring in the first place. There was absolutely no legitimate purpose in outing Amb. Wilson's wife. NONE. Neither was there a justification for C. Rice leaking to the NYT (and they publishing it) the name of the Al Qaeda double agent the British had turned. You know, the one who was 'in cellphone contact with operatives in the US preparing an attack.' I don't see value in Patriot Act restrictions especially when the WH under Unelected Bush has: 1) Burned a large portion of our nuclear materials spy network, for political cover on their illegal invasion lies. 2) Burned an AQ double-agent helping investigate an ongoing domestic terror strike, for no apparent reason other than damaging our national security. 3) Utterly failed to guard ANY of the munition and materiel dumps in Iraq, allowing vast quantities of said to transfer to hostiles, including 4,000 shoulder-fired missiles, perfect for downing the new super-airliners. "Olson is one of the best Supreme Court advocates in the country." Ted Olson is a traitor working for a conspiracy to damage national security for profit, destroy the Constitution, and eliminate all regulation on donor and co-conspirator corporations. What a hero.