The new legal team for Time magazine and its reporter Matthew Cooper asked the Supreme Court yesterday to review a lower court's decision compelling Cooper to give up his confidential sources to the federal grand jury investigating the Valerie Plame leak case. The petition separates Team Cooper from the legal defense captained by First Amendment macher Floyd Abrams that it previously shared with reporter Judith Miller and the New York Times. Both journalists face contempt of court charges that may result in months of jail and tens of thousands of dollars in fines for their employers.
It's no surprise that Cooper and Time switched legal ponies, seeing as Abrams stumbled last December, when he represented both reporters before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Abrams appeared green and confused to even the legal laity in the courtroom audience, as he sought to convince three skeptical judges that either the Constitution or federal common law gives journalists an absolute privilege to keep their confidential sources confidential.
Judge David B. Sentelle, cantankerous as a man with a pants load of chiggers, treated Abrams as if he were lower than a squeegee man.
"How is this case any different than Branzburg, in which the Supreme Court held that the reporter did not have a privilege adequate to prevent compulsion?" Sentelle bellowed at Abrams from the bench. He was talking about Branzburg v. Hayes, the 1972 case that is the guiding precedent in cases about the reporter's privilege.
Abrams ignored Santelle's question again and again, and each dodge provoked the judge to fume and interrupt, How is this different from Branzburg!? Abrams' fumbling so frustrated me that the fifth time Santelle growled the question, I almost stood on my seat in the back of the courtroom to yell back:
1) The case is completely different than Branzburg, in which newspaper reporters witnessed the felony operations of a pot and hashish ring and then refused to answer grand jury questions about it! In the Cooper case, the only potential lawbreaker is a government official (or officials), who is alleged to have dispensed a politically charged leak of classified information to reporters!
2) Like it or not, at the core of Robert Novak's Plame-outing column is valuable information about the ongoing political rumble between the White House and the CIA! The first sentence of Novak's much-discussed but little-read column sets the table: "The CIA's decision to send retired diplomat Joseph C. Wilson to Africa in February 2002 to investigate possible Iraqi purchases of uranium was made routinely at a low level without Director George Tenet's knowledge. Remarkably, this produced a political firestorm that has not yet subsided." I am a minority of one who believes the intent of the leaker(s) and Novak was not necessarily "payback" for Wilson, rather it was an attempt by the Bushies to illustrate how anti-Bush forces in the CIA had tapped the former ambassador for the Niger mission because they knew he'd deliver the correct (read, CIA) verdict! The fact that his WMD-expert CIA wife was part of the process is important to our political understanding of the war!
3) Traditionally, whenever the subject of a story is politics, the courts have deferred to First Amendment guarantees of a free press and wisely shied away from interfering in political reporting by issuing subpoenas and contempt citations!
4) In Branzburg everyone agrees that the reporters witnessed drug felonies! In this case, we're not even sure if the government leaker(s) broke the law because of the incredibly narrow language of the statute!
5) In Branzburg prosecutors did not keep evidence secret from the reporters subpoenaed by the grand jury! In this case, the subpoenaed reporters have been denied access to evidence that the judges have seen. Even the Gitmo detainees and Yaser Hamdi get to "rebut the government's factual assertions before a neutral decisionmaker," thanks to Supreme Court decisions issued last June! Don't Cooper and Miller deserve similar due process before they're jailed?!
Actually, I wouldn't have hollered the fifth paragraph if only for the simple reason that I hadn't thought of it. The Cooper petition to the Supreme Court was drafted under the direction of President Bush's former solicitor general, Theodore Olson. (As long as we're name-dropping, Miguel Estrada, the Bush nominee to the D.C. Circuit who yanked himself from contention after the Dems threw a fit, is counsel of record on the brief.) Quite smartly, it asks the Supreme Court to review several precedents that suggest it's a violation of the Constitution's guarantee of due process to imprison a witness for contempt of court based on secret evidence that only the judge and the prosecutor know about. "Even in cases involving classified information that directly implicates national security—such as enemy combatant cases—the government has made this information available to defendants or their security-cleared counsel," the lawyers argue.
This legal tack gives the court the wiggle room to free Cooper and Miller without having to rethink Branzburg. But if the court wants to remodel that landmark but inconclusive decision,the petition replows the legal turf barely tractored by Abrams, asserting that in the three decades since Branzburg was decided, we have "witnessed significant changes in the legal landscape that strongly support recognition of a federal reporter's privilege." In 1975, Congress adopted Federal Rule of Evidence 501, "instructing federal courts to recognize new privileges in light of 'reason and experience.' " Also since Branzburg, the number of states that recognize a reporter's privilege has risen from 17 to 49 (plus the District of Columbia).
What we have now, argues the petition, is a patchwork of inconsistencies and conflicting legal standards that only the Supreme Court can resolve. If there is no federal privilege to back up the privileges granted by the states, then in federal court those privileges are useless. The way out of the morass, according to the petition, is to parallel/draw an analogue to the 1996 precedent Jaffee v. Redmond, which established a new common law privilege for psychotherapists under Rule 501. If the government's interest in prosecuting crime can tolerate psychotherapists refusing to testify before the grand jury about their clients, then it should be able to tolerate the refusal of journalists to give up their sources. Team Cooper invites the Court to find a reporter's privilege either in Rule 501 or the First Amendment.
Wisely, the petition studiously avoids Abrams' argument that journalists have an absolute privilege—with no exceptions—to keep sources confidential in criminal cases. The Cooper petition limits its discussion to a more flexible approach, with guidelines for the privilege to be established by legislatures and the courts. Some lawmakers and judges have been hotfooting in this direction since Branzburg.
Is the petition flawless? The goal of a petition isn't to present a complete meal but to stimulate the Supremes' appetite and convince them to order it served to their docket. The petition does just that, something I'm afraid Abrams' palavering will never accomplish.
Disclosure: Matt Cooper is a friend and sometimes a Slate contributor. Send subpoenas and tips via e-mail to firstname.lastname@example.org. (E-mail may be quoted unless the writer stipulates otherwise.)