An Update on the Investigation Into the Leak Of CIA Agent Plame's Identity:
Will The Supreme Court Take The Miller And Cooper Cases?

By JOHN W. DEAN
Friday, Apr. 22, 2005

The investigation relating to the improper (if not felonious) revelation of Valerie Plame's CIA identity by syndicated news columnist Robert Novak seems to be heading toward its conclusion. (I have previously written about the investigation in columns of January 6, 2004 and January 30, 2004.)

The investigation has been marked by some surprising developments. The latest twist relates to two reporters: New York Times investigative reporter Judith Miller, and Time magazine White House correspondent Matthew Cooper.

The two appear to be peripheral players at best, but appearances may be deceiving: According to Special Counsel Patrick Fitzgerald, Miller and Cooper are essential to his completing his investigation.

Playing hardball, Fitzgerald has insisted both Miller and Cooper be found in contempt of court for their refusal to reveal their confidential sources to his grand jury. So far, courts have ruled in his favor. The question now is whether the U.S. Supreme Court will take the case, and if it does, what it will rule.

A Brief Recap Of The Situation

On October 7, 2004, the Chief Judge of the U.S. District Court for the District of Columbia, Thomas Hogan, held Miller in contempt. Then, on October 13, Judge Hogan held Cooper in contempt. Judge Hogan ordered each to pay a fine of $1,000 per day and to stay in jail until he or she testifies. However, he stayed his order pending their appeals.

On February 14 of this year, Miller and Cooper lost their first appeal -- In re Grand Jury -- before a three-judge panel of United States Court of Appeals for the District of Columbia Circuit. They then requested that the full court - sitting "en banc" - rehear their appeal.

But earlier this week, on April 19, the en banc court turned down the request. In his concurrence to the ruling, Circuit Judge Tatel noted that only the Supreme Court "can limit or distinguish" its controlling 1972 ruling in Branzburg v. Hayes as it applies to the facts relating to Miller and Cooper.

Under Branzburg, no reporter can refuse a grand jury relevant information. That is the law of the land.

News reports indicate that Miller and Cooper will now seek review by the U.S. Supreme Court. This is their only hope of staying out of jail -- unless they reveal their source(s).

Will The Supreme Court Take The Case?

It is not often that reporters from the New York Times or Time are sent to the slammer for doing their job: collecting information from their sources so they can report. Yet many knowledgeable observers do not believe the Supreme Court will choose to take Miller and Cooper's case.

Indeed, their own attorney, Floyd Abrams - a consummately skillful and experienced First Amendment expert - remarked, in a speech before the American Society of Newspaper Editors, that he thought it would be difficult for his clients to get a hearing before the Court.

Similarly, Lucy Dalglish - the head of the Reporters Committee for Freedom of the Press, which monitors such cases closely -- is not optimistic. She thinks it's, at best, "a toss up" whether Miller and Cooper will get an additional stay and a hearing before the Supreme Court.

The bottom line is this: Eight federal judges (seven on the appellate court and the trial court judge) have studied the facts of the Miller and Cooper situations. Not one has found any material distinction between these facts, and those in Branzburg. This gives the Supreme Court only one possible reason to take the case: To overrule, or somehow clarify, the holding in Branzburg.

As I see it, those who doubt the Court will take the case have it correct -- for several good reasons.

Rehnquist Thinks Reporters Should Be Subpoenaed

First, under Chief Justice Rehnquist, the Supreme Court has not exactly been "reporter friendly." In fact, if the Miller and Cooper cases were to be considered by the high Court, it could be an ironic career closing case for the ailing Chief Justice. (Unless, of course, the Supreme Court took the case, but held it over to the next term, and in the meantime Rehnquist were to resign. This is the best hope for Miller and Cooper, while the worse case for Fitzpatrick's investigation.)

In Branzburg itself - issued in 1972 - the new Associate Justice Rehnquist joined the 5-4 majority. Many questioned his ethics in not recusing himself from the case.

In his 1974 book, The Appearance of Justice, Washington Post legal correspondent Jack MacKenzie explains why: As a former Assistant Attorney General, "Rehnquist had been the Justice Department's chief public spokesman, second only to the attorney general himself, for the Justice Department's controversial policy of subpoenaing newsmen." Moreover, MacKenzie added, "Rehnquist had appeared in the role of administration spokesman to defend the department's 1970 subpoena guidelines, which his Office of Legal Counsel had helped to prepare." The conflict of interest, based on these facts, was clear.

MacKenzie, who attended the oral argument in Branzburg, said he was stunned that Rehnquist actively quizzed the attorneys representing the newsmen facing contempt, oblivious to his conflict. MacKenzie says Rehnquist "showed no consciousness of [the] impropriety" of his actions in Branzburg. But several prominent commentators, after the fact, have pointed it out, so surely he is aware of it now.

Many believe that Rehnquist is ready to step down from the high bench, given his poor health. It difficult to believe that this Chief Justice, so well-liked by his colleagues, will be given the farewell gift of the reopening of Branzburg - which represents a low point for him. And such human factors do influence Supreme Court justices in their decisionmaking.

In addition, there is much more going on with the Miller and Cooper cases than meets the eye.

Fitzgerald's Sealed, Ex Parte Presentation To Judge Hogan

The trial record accompanying the appeals by Miller and Cooper carried information -- a sealed record -- that has not been made public. It is an affidavit that was submitted by Special Counsel Fitzpatrick to Judge Hogan when Miller, Cooper, and other reporters (who have since cooperated with the investigation) sought to first block the subpoenas calling for them to appear before the grand jury.

In a November 10, 2004 ruling, Judge Hogan addressed this information: "In his ex parte affidavit, Special Counsel outlines in great detail the developments in this case and the investigation as a whole," he explained. "The ex parte affidavit establishes that the government's focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation." (An ex parte affidavit is one to which the other side in the dispute is not privy.)

Judge Hogan then found, based on Fitzpatrick's information, that "the subpoenas were not issued in an attempt to harass the [reporters], but rather stem from legitimate needs due to an unanticipated shift in the grand jury's investigation." The Judge concluded that because the "subpoenas bear directly on the grand jury investigation and are of a limited time and scope," Fitzpatrick was entitled to this information.

Undoubtedly, several of the appellate judges have examined Fitzpatrick's affidavit as well. Indeed, Miller and Cooper have claimed, as part of their appeals, that they were denied their due process rights in not being made privy to this secret information; it seems likely that to assess that argument, the appellate judges, too, would have wanted to read the affidavit. (In the end, though, the appeals panels easily rejected the due process argument, based on longstanding, solid precedents.)

There Is Probably A Good Reason for the Focus on Miller and Cooper

It is difficult to imagine that all of these federal judges would let Fitzpatrick haul highly visible news people into his grand jury, on a lark, without a good reason for doing so. Thus, it seems there must be a good reason that Fitzpatrick needs the testimony of Miller and Cooper in particular. That raises the question: Why are Miller and Cooper so vital to this case?

Only those privy to the work of Fitzpatrick's grand jury (and, possibly, Miller and Cooper themselves) know the answer. The rest of us must stay turned to see if this is prosecutorial zeal gone astray, or if Miller and Cooper are seeking to place themselves above the law when there is good reason for them to testify.

By now, both reporters, highly sophisticated and as knowledgeable as they are, have long known that they will have to pay their fines, and serve their time, except in the unlikely event that the Supreme Court takes their case and overrules (or clarifies) Branzburg.

But there is one other event that could - and should - save them: It is time for anyone who leaked information to either of these reporters to step forward and reveal themselves.

This is particularly true if the person (or persons) who leaked information to Miller and Cooper was also the person (or persons) who leaked Valerie Plame's CIA identity to Novak and others. For that source to watch Miller and Cooper go to jail for their principles, would be craven indeed: A case of the innocent suffering to benefit the guilty, for as I have explained in a prior column, the leak certainly appears to be a federal felony.

Only Miller and Cooper's source(s), by stepping forward, can prevent a potential miscarriage of justice. He or she must do so forthwith.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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