The risk for media advocates is that the court could strip away the narrow federal protection journalists have enjoyed over the past three decades. At the same time, the journalists at the center of the current case insist they won’t reveal their sources. The complex and shifting legal maneuvering simply highlights why successful investigations into press leaks can be so elusive.
“The question is, who could get to the bottom of this very quickly? The president of the United States,” says former U.S. Ambassador Joseph Wilson, Plame’s husband. “There has to be an internal investigation into who’s betraying the country — an investigation with sworn affidavits from everybody on his staff — and the president ought to insist everybody who talked to any reporter about this subject sign a waiver.”
But Bush has done none of this. He simply urged White House employees to cooperate with investigators as they try to determine who leaked Plame’s name last year to syndicated columnist Robert Novak, the first to report it, on July 14, 2003. The leakers, who also approached Time magazine’s Matthew Cooper, appear to have violated the Intelligence Identities Protection Act of 1982, which makes it a crime — punishable by up to 10 years in prison and a large fine — to make unauthorized disclosures about a covert agent.
In January, Justice Department investigators asked White House staff members to sign a waiver requesting “that no member of the news media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit.” But in February the Washington Post reported, “Most officials declined to sign the form on the advice of their attorneys.”
More recently, Lewis “Scooter” Libby, Vice President Cheney’s chief of staff and a key player in the Plame leak investigation, told investigators about off-the-record conversations he had last summer with the Post’s Glenn Kessler and NBC’s Tim Russert, and formally requested that the conversations be disclosed, thereby freeing both reporters from their bond of confidentiality. Both Russert and Kessler agreed to speak with prosecutors, but neither man was a recipient of the leak last summer. Although they are free to talk, neither has come forward to discuss the conversations with prosecutors.
There is no indication that Libby has given Time magazine’s Cooper the same permission to come forward and reveal any confidential conversations the two had about Plame last summer. In the July 17, 2003, Time.com article that has ensnared Cooper in the investigation, Cooper and his coauthors wrote, “Some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson’s wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.” Interestingly, Libby in “an exclusive interview” is quoted on the record in that Time.com story, although not specifically about Plame. Whether Libby asked at any point during that interview to go off the record in order to talk about Wilson’s wife remains unknown.
On Monday, U.S. District Chief Judge Thomas Hogan’s ruling on the leak investigation was unsealed. In it, he determined that the First Amendment does not protect reporters from testifying before a grand jury investigating such a leak, and ordered that Cooper be confined for refusing to comply with a subpoena issued by special prosecutor Peter Fitzgerald.
Calling the court opinion “devastating,” Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, says Hogan is “deconstructing any attempt to argue constitutionally based privilege” for reporters. Time lawyers have appealed the ruling and are likely to go back to court in September before the D.C. Circuit Court of Appeals. Its ruling could come swiftly or sometime in 2005. Whichever side loses will probably petition the Supreme Court to hear the case, which could decide quickly or stretch the proceedings into 2006.
Fitzgerald is investigating which “two senior administration officials” told Novak that Plame was a CIA operative. Plame’s husband, Wilson, was sent by the CIA to Niger in 2002 to check out reports that Iraq had sought to buy yellowcake uranium with which to make nuclear-weapons material. Wilson drew the ire of the administration in 2003 when he went public in an Op-Ed in the New York Times with his account of how the Bush administration had misled the American public during the run-up to the war about Iraq’s efforts to secure the yellowcake. Administration officials then leaked Plame’s name and occupation to Novak, who did their bidding in a column asserting that Wilson’s trip to Niger was arranged by his wife, “an Agency operative on weapons of mass destruction.” Leaking Plame’s name was an attempt to discredit Wilson by suggesting it was only nepotism that led to his being sent to Niger, a charge Wilson categorically denies.
Following Novak’s column by three days, the Time.com story also named Plame. But it was published before Wilson appeared on NBC’s “Meet the Press” and noted that whoever had leaked the name of his wife was likely breaking the law. The leaks then abruptly stopped.
Novak remains the center of the investigation, but it was Cooper who was in the spotlight this week as prosecutors apparently seek to rule out more peripheral players in the drama before moving in on Novak. Cooper’s role is seen as less central than Novak’s, but Cooper was the first journalist connected with the investigation to defy the court’s order. Walter Pincus of the Washington Post, also subpoenaed, is seeking to quash his appearance before the grand jury.
“I have to say, I saw that there are ‘Free Matt Cooper’ T-shirts online, and I’m thinking of getting one,” says Wilson. “I hate to see anything that might circumscribe the press’s ability to protect the confidentiality of its sources, especially with an administration as secretive as this one.”
Legally it’s of little or no significance that Time’s Cooper has, for the moment at least, become the public face of the leak investigation. But the development is comforting for some journalists, who feel that Novak, a partisan pundit, acted unethically by letting himself become a conduit in a White House smear campaign that may have broken the law. The idea of Novak’s playing the press-martyr role for protecting sources that endangered a CIA operative so the Bush administration could score political points makes many uneasy. For months now, there haven’t been any “Free Bob Novak” T-shirts hawked online.
“He really was allowing himself to be used as a tool by the government and turning the concept of journalist as whistleblower on its head,” says Geneva Overholser, a professor at the University of Missouri journalism school and the former editor of the Des Moines Register.
“Cooper’s is a better case,” adds Kevin Goldberg, an attorney for the American Society of Newspaper Editors. “There’s always been the inference that Novak was working with the government in some ways. I think people will back the case no matter what, but they would feel better backing Time magazine.”
Also, the Time story, which probed the White House’s motivation in talking about Plame, would seem to fit the pattern of what Sandra Baron, executive director of the Media Law Resource Center, calls the “best factual scenario” to bring to the Supreme Court for a privilege ruling: “The best case is reporting that takes a serious look at how government operates and informs the public on a matter of real concern.” And the way the courts have recently been ruling against the media in privilege cases, journalists need the best set of facts they can find.
Any looming court showdown is certain to revolve around the Supreme Court’s 1972 ruling in Branzburg vs. Hayes, the last time the high court dealt with the issue of forcing journalists to testify as witnesses in criminal cases. As First Amendment attorney Bruce Sanford recently wrote, “By the narrowest of margins, the court rejected a journalist’s privilege to shield confidential sources before a grand jury. But Justice Byron White’s plurality opinion threw a crumb to the media, noting that ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’ This wobbly endorsement is the closest the court has come to validating newsgathering as an indispensable part of journalistic freedoms.”
In the three-plus decades since Branzburg, White’s “crumb,” amplified by a separate opinion written by the late Justice Lewis Powell, has turned into something of a judicial feast for journalists as courts around the country have embraced the notion that journalists enjoy at least a qualified privilege. The privilege is determined through a series of tests, including whether the reporter’s information goes to the heart of a particular case and cannot be obtained through other means.
Over the past 32 years that qualified privilege has expanded and contracted, varying from circuit to circuit. The situation is equally messy on the state level, where nearly three dozen states have enacted shield laws to protect journalists from prosecutors tempted to use them as unofficial information gatherers.
But in the past year several judges have taken a stern look at Branzburg, deciding time and again that the Supreme Court’s original intent was clear — journalists do not enjoy a privilege — and ordering reporters to cooperate with prosecutors. Judge Hogan’s decision regarding Cooper is the most recent.
In a ruling last year involving the case of former Los Alamos scientist Wen Ho Lee (who filed a civil suit to determine which anonymous government official violated the Privacy Act by leaking private employment information about him to the press), U.S. District Judge Thomas Penfield Jackson ordered two New York Times reporters to reveal their confidential source. Jackson wrote, “The court has some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press [what] the Privacy Act says they may not reveal.” Jackson is expected to rule later this month on whether to hold the Times reporters in contempt.
Last summer a judge ordered authors working on a book about Irish terrorists to hand over tape-recorded interviews with a suspected terrorist so they could be used in a trial in Ireland. Fearing they might lose the legal battle and that the case would become precedent setting, the journalists in the end surrendered their tapes. Despite the concession, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit in Chicago went ahead and issued a full-fledged ruling, suggesting the First Amendment-based privilege that reporters enjoy in many states and federal circuits may violate the Supreme Court’s intent in Branzburg. Posner wrote, “We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”
Judge Hogan in the Plame ruling picked up right where Posner left off. Citing Branzburg, he ruled, “There is no First Amendment privilege exempting members of the press from appearing before grand juries upon issuance of a valid subpoena.”
Hogan also declared, “[To] whatever extent lower courts around the country have eroded the periphery of the Branzburg opinion, the core of the opinion stands strong. The facts of this case fall entirely within that core — a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection. In the three decades since that opinion was penned, the Supreme Court has chosen not to issue a ruling contradicting that holding. Therefore, neither shall this Court.”
Some experts, saying the facts of the Plame case are not sufficiently novel, doubt the Supreme Court will agree to hear it. “This Supreme Court seems to have no problem with how Branzburg is being implemented,” notes Goldberg.
But if the court is troubled by the various interpretations at the circuit level, the case may be a chance to finally clarify its true intent in Branzburg. “If the media loses their appeal, they will take it to the Supreme Court, asking them to modify Branzburg,” notes Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “It’s risky, yes.”