Punishing the leakers -- and the press

By Tim Grieve

Published February 15, 2005 6:06PM (EST)

As the rest of us enjoy the luxury of wondering who told Jeff Gannon what about Valerie Plame -- and as Robert Novak, the man who actually outed Plame, continues to bloviate freely on TV -- the New York Times' Judith Miller and Time's Matthew Cooper moved a little closer to jail today for refusing to give up the goods on what confidential sources may or may not have told them.

The U.S. Court of Appeals for the D.C. Circuit this morning held that Miller and Cooper have no right to refuse to testify before the grand jury investigating the Plame case. The decision isn't crazy, and it wasn't unexpected. While many states have "shield laws" that protect reporters from having to reveal their confidential sources, those protections often give way in criminal cases. And there is no such law at all at the federal level, where the Plame case is being investigated. Lawyers for Miller and Cooper argued that such there was a sort of implied "shield law" in the Constitution, in the common law and in the Justice Department's own internal guidelines. Two Republican judges, David Sentelle and Karen Henderson, rejected those arguments. A third judge, Clinton appointee David Tatel, said that such a right exists but that it is trumped by other concerns in the Plame case.

In his 40-page separate opinion, Tatel weighed the news value of the information about Plame's job against the need for prosecuting those who leaked it. He said Plame's identity wasn't particularly newsworthy, but that the harm caused by leaking it -- and thus, the need to prosecute the leakers -- was great. Tatel noted that Miller never actually identified Plame in the Times and that Cooper did so only after Novak outed her. But rather than providing them a defense, Tatel said the reporters' lack of interest in Plame's identity only underscores the fact that the illegality of the leak was more important than the news the leak provided.

"In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime," Tatel wrote. "The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leakssay, from a whistleblower who revealed the plot against [Plame's husband, Joseph] Wilsonthe situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Plame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires."

Tatel said that special prosecutor Patrick Fitzgerald has proven that he needs the information Miller and Cooper may have and that he can't get that information any other way. Why couldn't Fitzgerald just ask Robert Novak? We may never know: The eight blank pages in which Tatel discusses Fitzgerald's need for the information are blank, redacted because they contain secret grand jury material.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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