Time's Matthew Cooper and the New York Times' Judith Miller are back before U.S. District Judge Thomas Hogan for a hearing in the Valerie Plame case, and they both may well be headed to jail before the afternoon is out. They won't get any sympathy from special prosecutor Patrick Fitzgerald on the way out the door.
In the brief he filed with the court earlier this week, Fitzgerald adopted an unusually nasty tone, particularly with respect to Miller. While lawyers everywhere decry the decline in civility in the practice of law, representatives of the United States government usually try to refrain from the kind of petty sniping that marks most litigation today. Not Fitzgerald, at least not in the legal brief in which he responds to Miller's request that her sentence, if any, be served through time in home confinement.
"Certainly one who can handle the desert in wartime, is far better equipped than the average person jailed in a federal facility," Fitzgerald wrote of Miller, who covered -- as Editor & Publisher notes, "some say, mis-covered" -- the search for WMDs in Iraq. Miller has suggested that a home confinement sentence could include depravations such as the denial of cell phone and email usage. Fitzgerald said that wasn't enough -- "forced vacation at a comfortable home is not a compelling form of coercion" -- and that Miller could avoid the prospect of jail by simply doing "no more than just follow the law like every other citizen in America is required to do."
"The court should advise Miller that if she persists in defying the court's order that she will be committing a crime," Fitzgerald continued. "Miller and the New York Times appear to have confused Miller's ability to commit contempt with a legal right to do so . . . . Much of what appears to motivate Miller to commit contempt is the misguided reinforcement from others (specifically including her publisher) that placing herself above the law can be condoned."
For those of you -- and you know who you are -- who see the prospect of having Miller jailed for refusing to testify in the Plame case as some kind of rough justice for the way she reported the run-up to the Iraq war, Fitzpatrick's vituperative tone may seem just about right. The rest of us would prefer to see officials from the U.S. Department of Justice keep themselves above the fray of personal attacks, even when they think their targets are holding themselves above the law.