Wednesday, February 16, 2005

Shafer: Fire Floyd

Question 1. Should Miller and Cooper ditch the First Amendment defense?

Question 2. Does this really mean that a judicial remedy is unlikely, and the Bush administration knows that - which is why a legislative remedy is necessary?

Question 3. Will Dodd and Pence move their legislation in time to make a difference here, if not formally, than in the court of public opinion? (I find it unlikely.)
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press box

Memo to Cooper and Miller

Fire Floyd Abrams. Hire Bruce Sanford.
By Jack Shafer
Posted Tuesday, Feb. 15, 2005, at 3:55 PM PT

Today, the U.S. Court of Appeals for the District of Columbia Circuit scuttled the appeals of Matthew Cooper and Judith Miller. Both reporters are contesting grand jury subpoenas to testify in the investigation of the leak of CIA covert agent Valerie Plame's name to columnist Robert Novak. Novak published Plame's identity in a July 2003 syndicated column.

Circuit Judges David B. Sentelle and David S. Tatel manhandled the defendants' attorney, First Amendment legend Floyd Abrams, during the Dec. 8 oral arguments before the appeals court, and today's decision only continues their thrashing. (Judge Karen L. Henderson asked only a couple of questions at argument and authored a brief concurrence today.) In the majority opinion, Judge Sentelle finds no merit in Abrams' assertion that a First Amendment privilege protects Cooper and Miller from the subpoena. Talk to the grand jury about your confidential sources or go to jail for contempt, he says to Cooper and Miller. Judge Tatel's nuanced and learned concurring opinion teasingly entertains the privilege notion before folding down the sheets on the two journalists' prison bunks and fluffing their pillows.

It's easy to blame Abrams for Cooper and Miller's predicament, especially now that some of the other journalists subpoenaed in the case, including Tim Russert, Glenn Kessler, and Walter Pincus, appear to have cut face-saving deals with the prosecutor to avoid jail. Maybe a First Amendment legend isn't what this case called for in the first place. Maybe Cooper and Miller would have been better served by having a criminal lawyer who knows how to bargain.

With New York Times Publisher Arthur Sulzberger Jr. promising to appeal this decision, perhaps both Cooper and Miller might want to rethink the utility of hanging their whole case on this First Amendment defense. If I were running their defense committee, I'd give the case to Bruce W. Sanford.

Sanford, no First Amendment slouch, helped write the law that special prosecutor Patrick J. Fitzgerald is using to hunt Plame's leaker—the Intelligence Identities Protection Act of 1982. (Interest declared: More than 10 years ago, Sanford represented me. On a much later occasion he bought me a nice breakfast, which I'm sure he billed to his firm.)

Victoria Toensing, another framer of the 1982 Act, and Sanford wrote last month in a Washington Post op-ed, that it's "time for a timeout on a misguided and mechanical investigation in which there is serious doubt that a crime was even committed. Federal courts have stated that a reporter should not be subpoenaed when the testimony sought is remote from criminal conduct or when there is no compelling 'government interest,' i.e., no crime."

Citing their intimate knowledge of the 1982 legislation, Sanford and Toensing explain how they drafted a dart gun of a law, and not the blunderbuss Fitzgerald keeps firing into the bushes. The law as they conceived of it was so narrowly defined that it's been used in only one prosecution, back in 1985.

Sanford and Toensing line up the specifics of the law like Burma Shave signs:

  • The law wasn't designed for the prosecution of government employees who unintentionally or carelessly divulged a covert agent's identity.
  • The agent must truly be covert in the eyes of the 1982 Act (they doubt Plame was).
  • The disclosure must be intentional and backed by the knowledge that "affirmative measures" are being taken by the government to conceal the agent's identity. (Plame was working a desk job at the CIA's Langley headquarters at the time of Novak's column, not a very compelling cover. Also, the agency seems to have done none of its usual jawboning to dissuade Novak from divulging Plame's identity when he called.)

(I catalogued similar specifics in an October 2003 Slate column, "Stop the Investigation.")

What could Sanford do for Cooper and Miller that Abrams can't? For one thing, he could tack away from the First Amendment argument. Even though I'm a First Amendment extremist, I found Abrams' oral argument before the D.C. Circuit to be wishful and flabby. I don't know of any court, let alone the Supreme Court, that is likely to hold that reporters possess a near automatic right to ignore grand jury subpoenas.

If I'm right, a fresh law jockey might be the ticket. In their op-ed, Sanford and Toensing called upon the special prosecutor Fitzgerald and the two reporters to ask Judge Thomas Hogan, who oversees the grand jury, "to conduct a hearing to require the CIA to identify all affirmative measures it was taking to shield Plame's identity." They conclude their piece, "Before we even think about sending reporters to prison for doing their jobs, the court should determine that all the elements of a crime are present."

And if that strategy fails, Cooper and Miller should find the right guy to cut a face-saving deal with Fitzgerald. For all Fitzgerald's Javertian tendencies, I doubt if he wants to be remembered as the guy who jailed reporters from Time and the New York Times.

The last shot, of course, is the Supreme Court. But the Supremes don't have to take the case, and my guess is that they won't if it's argued on First Amendment grounds, preferring to let their Branzburg precedent stand.

Regardless of the specific legal theory on which they proceed, Miller and Cooper could do worse than coax an insanely bright legal argument out of the guy who helped write the law Fitzgerald is swinging like a meat hook.

Jack Shafer is Slate's editor at large.