Plame Leak Case Could End in Supreme Court Standoff (E&P)

[Snazzy]

Plame Leak Case Could End in Supreme Court Standoff
Lucy Dalglish: "I think we are headed for a showdown."

By Joe Strupp

Published: August 10, 2004 12:21 PM EST

NEW YORK The recent pressure on reporters to reveal sources in the Valerie Plame investigation could end in a U.S Supreme Court standoff, according to two leading First Amendment attorneys, one of whom fears several leading Washington reporters could wind up in jail before it's over.

"I think we are headed for a showdown and it would not surprise me in the least to see half a dozen reporters sitting in a jail in D.C.," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which monitors such cases. She believes Time magazine and other media outlets "will be willing to take this all the way to the Supreme Court because the atmosphere here has become so difficult for journalists to promise confidentiality that the stakes are too high."

Sandra Baron, executive director of the Media Law Resource Center, agreed. "Eventually it will go to the Supreme Court," she said. "I'm not sure if a lot of people want to see that because there is always the danger that the Supreme Court will take a strong stand against the press on this issue."

Dalglish's and Baron's comments followed word Monday that Time reporter Matthew Cooper had been held in contempt of court for failing to reveal sources who disclosed that Plame was an undercover CIA officer. In addition, Walter Pincus, a reporter for The Washington Post, received a subpoena Monday ordering him to testify in the investigation, which is being directed by special prosecutor Patrick J. Fitzgerald. Other newspaper reporters are expected to receive subpoenas soon.

....

http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1000604122


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Also, good round-up here:

Ruling Offers Window Into Plame Investigation

By Dan Froomkin
Special to washingtonpost.com
Tuesday, August 10, 2004; 11:39 AM

Sure the newly unsealed order by a federal judge in the Valerie Plame case sets up what could be the greatest First Amendment clash in decades -- but it also contains some very intriguing clues about the hugely secretive investigation into the leak of Plame's identity as a CIA operative.

And it does appear that special prosecutor Patrick J. Fitzgerald is asking a lot of questions about Vice President Cheney's chief of staff, Lewis I. "Scooter" Libby.

U.S. District Chief Judge Thomas F. Hogan's ruled Time magazine reporter Matt Cooper in contempt of court for refusing to testify in front of the grand jury investigating the case.

The ruling contains a "background" section that provides a rare -- if still fragmented -- view into the investigation.

....

http://www.washingtonpost.com/wp-dyn/articles/A53622-2004Aug10.html

[MallRat]

1. If it goes to SCOTUS, would the ruling be expedited?

Or is this going to drag on past Election Day?

They're running out the fucking clock, folks. We can't let this happen.

-MR

[reprobate]

33. Going past election day might be the best thing for US!

Once this bunch is out of office there will no longer be any shield for them of 'executive priviledge' or anything else. They will be no more than private citizens once more, who can be arrested for felonies just like anyone else.

And with a Dem in the white house, and hopefully a dem congress, we may just see the whole cabal doing the perp walk in a chain gang.

[Demoiselle]

2. I may be a Bill of Rights heretic, but...

I wonder how much "source" protection the utterly lazy "reporters" of our time deserve? Back in the day when the people who brought us our news really were the people's watchdogs, and really did bark like hell when they saw trouble, they EARNED their right to special protections. I don't see it that way today. I also don't remember that those special source protections ever applied to criminal activity--which, of course, is what went on in the Plame expose.
Any ideas anybody?

[shance]

6. No ideas, just agreeing with you.

Very good points (lots of good points on DU today*)- what these people did was not brave. What they did was put Valerie Plame and our overall security at risk by allowing this to become public.

[The Backlash Cometh]

18. Yup. Our newspeople have become lazy libertarians.

There should be some condition stating that a reporter must actually report the news in order to qualify for the highest freedom of the press privilege.

[Eloriel]

19. I'll go you one better ,actually

tho perhaps slightly OT.

I've been thinking to myself something along these lines: The First Amendment gives the press enormous privilege, "freedom of the presss." This wasn't done out of any sense of largesse toward journalists, but as a pragmatic, hard-headed elevation of the Fourth Estate to a place where it could serve as watchdog for our government, our freedoms, our very way of life (including the Constitution).

I just posted this quote on another thread:

I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts. -- Abraham Lincoln

It was always intended by the framers that the press would be the vehicle to bring the people the "real facts," especially when politicians and government officials did NOT.

Obviously, the concommitant responsibility that is expected of the press was not enshrined IN the Constitution, but it's not as if it isn't obvious (probably in the Founders' writings somewhere) that that's why the press were given the special privileges inherent in their part of the First Amendment.

If the press is NOT fulfilling its special responsibilities, it should be made to do so. I would seriously like to see some Constitutional law experts make a civil case against corporate-owned media along these lines, with a legal brief about a mile thick covering the press's failings over the last number of years.

AND, further, IMO (and I'm not a lawyer by any means, so my opinion is worth exactly what you're paying for it), I think a case could be made against these journalists on this very score because it is the government itself which was engaged in wrongdoing -- probable treason, in fact -- and which they are PROTECTING by trying to hide behind their privilege of not revealing sources.

[glitch]

28. I really like this idea - I would love to see the biggest CIVIL ACTION

ever to be brought against these treasonous CRIMINALS.
Sorry for yelling.

[KittyWampus]

37. Indeed, Rove/Libby Weren't "Whistleblowing"

When they contacted the Mediawhores they were disseminating sensitive information for one purporse only... THEIR OWN PARTISAN POLITICAL GAIN.

And while some "journalists" apparently didn't bite on the Plame info... they most certainly have allowed themselves to be willing mouthpieces for GOP smears countless times over the last decade or so.

[Hornito]

40. Indeed, all those who have parroted and lied for this............

fascist regime, should be charged with treason. ALL OF THEM.

They have helped damage this nation in a way Al Queda, or any of our other enemies, ever could.

I say they should be hung, proverbially, and literally.

[amber dog democrat]

36. If the reporters were doing their job and not cheerleading

I would have far more sympathy for them. As it stands now, it looks like they got their fingers burnt playing with fire - so to speak. I see this as a good thing either way. If in the unlikely event the SCOTUS should protect the reporters, then
what retaliation can there be for whistleblowing ? - can you imagine what Congress would do ? I imagine this would get folded into the Patriot Act and leaks of this sort wil have very severe consequences.

And if the court rules against the reporters, then lets follow the burning fuse and seel where it leads. Either way I don't see any protection for the reporters or their soruces. For the most part the Court is a machine that follows the law.

[Ilsa]

39. I love your commentary!

Most of these people have placed themselves in the role of entertainers now as they seek ratings, not facts, truth, or integrity. The other morning I was laughing at how much the two women on the Today Show that day, Campbell Brown and Natalie somebody, looked like each other in a general sense. They both looked and sounded like they should be selling toothpaste, not reporting news. Clones. They are turning into clones.

[Caution]

3. This is seriously dangerous ground here.

I want to see the admin players go down for the Plame leak, but I don't want to see confidentiality breached either. This is a lose-lose situation for the American people.

1.) SCOTUS rules leakers must be identified - Press can no longer claim they can protect sources. BAD

2.) SCOTUS rules press sources are protected - Govt Officials realize they can leak incredibly damaging information without any fear of being brought to justice, thus turning the press into an even more powerful political weapon

This is not a good thing.

[Kagemusha]

7. Well, this wouldn't be necessary if not for admin corruption.

Bush has been asked multiple times if he would demand his subordinates to either 'fess up whatever they know, or fire them summarily. He has not. So, because they haven't released journalists from their confidentiality, criminals are using journalists as shields for the furtherance of criminality.

It's an abomination.

[Eloriel]

21. I think that's a very good point. However, I also think that

the SCOTUS (and maybe I'm expecting too much of them here) can easily sort it out by simply saying, "Look, we have an issue of possible treason here. We're going to continue to allow journalists to not reveal their sources, but in the case of treason, and treason at the hands of the highest government office in the land, no. No protection."

[Kagemusha]

22. Since they basically already did in '72 this should be easy.

Should.

[HootieMcBoob]

30. They don't have to reveal their sources

But they might have to go to jail to protect them. They should grow some balls. If they believe that what the whitehouse did was right and in the best interest of American citizens then they should protect their source and go to jail.

If, however they believe that what the whitehouse did was criminally jeopardize the security of the citizens of the united states using intimidation tactics and the felonious leaking of a CIA agent's identity destroying decades long work by numerous other agents who have been tracking distribution of WMD then they need to do the job they are supposed to do as "watchdogs" of the government and turn the fuckers in!

I can not for the life of me understand why they are letting them get away with this. But if they have the balls that Susan McDougal had and really believe that what they are doing is right then they should gladly go to jail to protect their sources.

[shrdlu]

41. This is not a good thing...

Too true. And if we had a president with balls-at-all he could fis it overnight. Assuming of course that his underlings pay attention to him.

[merh]

43. This is not precedent it is the law since 1972

BRANZBURG v. HAYES, 408 U.S. 665 (1972)

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof. Pp. 679-709.

(snip)

More important, <408 U.S. 665, 696> it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. Historically, the common law recognized a duty to raise the "hue and cry" and report felonies to the authorities. 34 Misprision of a felony - that is, the concealment of a felony "which a man knows, but never assented to . . . either principal or accessory," 4 W. Blackstone, Commentaries *121, was often said to be a common-law crime. 35 The first Congress passed a statute, 1 Stat. 113, 6, as amended, 35 Stat. 1114, 146, 62 Stat. 684, which is still in effect, defining a federal crime of misprision:

"Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be ". 18 U.S.C. 4. 36 <408 U.S. 665, 697>

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=665

=================
Not only are the reporters vessels that received the information that constitutes the crime, to not report it or to conceal it or to obstruct justice is a crime. We are talking National Security here, not who slept with who!

[kohodog]

48. There are too many "Anonymous Sources" these days

No one is willing to put their name on something. I think the reporters in this case might be in the right to come forward on their own, ala Daniel Ellsworth, but at the same time I am worried that the court may set a terrible precedent that will stifle investigative journalism. We can't have it both ways though and I would err on the side of the journalists.

But why is there no mention of Novak in this news? If anyone should have their feet held to the fire it should be him. That would lead to a true Constitutional question.

[lapfog_1]

4. Even though we know how this will end...

it would still be worth it to have the photo of Novak doing
the perp walk for a contempt charge.

[Kagemusha]

5. Normally I'd side with the press on this sort of thing but...

The judge very specifically said that the media wasn't claiming that the grand jury process was being abused. The journalists refused to testify on the sole grounds that they didn't feel like it.

If there's no reason a person should be forced to testify under oath in secret in the grand jury process then the whole grand jury process should be ended for all time. If there is one place in the American system where someone should have to testify about something like that against their will, it's before a band of citizens and not simply behind closed doors with a judge and a bunch of lawyers.

If that's not good enough, then there probably shouldn't be penalties for leaking information to the media. Ever.

[Jackpine Radical]

11. "there probably shouldn't be penalties for leaking information ...

But the issue isn't leaking, which is clearly illegal, but reporting the leaked information, which may need at least some protection (e.g. Ellsberg & Pentagon Papers).

[Kagemusha]

13. The courts are not even remotely considering stopping reporting

I mean, that was the whole root of the argument in the Kobe case. Prior restraint and all that. That's *not* what's going on here.

This is a simple case of contempt of a grand jury. Either you can get away with that or you can't. If journalists can, then it has to be made clear that they have no obligations as citizens of the united states before other citizens investigating crimes relating to national security. (Plame was an WMD investigator during the War on Terror. This isn't a game.)

[Jackpine Radical]

42. Uh--yeah. You're right of course.

The issue is protection of the source of the leaked information. We as a society obviously do have a great interest in allowing jouirnalists to protect their sources, especially if we ever again expect anyone to expose wrongdoing by the gov't. This one is obviously one in which the wrongdoers (where have I heard that word before?) are being protected under that principle, but do we want to sacrifice the principle for this or any other spedific case? My instincts sy not, even though I'm as hot as anybody to see Bushco brought down.

[merh]

44. The issue is the leak...

If a reporter witnesses a crime, say a murder, and he does not identify the assailant because he wants to protect his source, don't you think it is wrong from him to try to hide behind the 1st amendment.

The reporters were witnesses to the leaks. If someone in the administration provided them with the identity of a covert intelligence agent, then they were witnesses to the fact that someone in the admin violated the law. This is not 1st Amendment, this is public policy - you cannot hide behind the 1st Amendment if you witness a crime.

For gosh sakes, this is national security and national security does matter in this instance. Each case is reviewed on its merits and this case is specific to a leak of the identity of a CIA agent and the conduits, the dupes in this case were the reporters.

[wrate]

46. Exactly. The leaking itself was the crime. 1st amendment should not apply.

[Feanorcurufinwe]

8. I thought there already was a SCOTUS precedent for this.

I don't think they'll take the case.

[mountainvue]

16. Yes, there is.

It's a case from 1972 called Branzberg v. Hayes. The SCOTUS should not take this case.

[young_at_heart]

9. The greatest 1st Amendment clash in decades?

It's amazing how many "clashes" there have been since W took office. It's been non-stop for such a long time.

[Gman]

10. If the story originated from Novak

I can understand Novak not having to divulge his source. But I cannot understand the others not divulging since they didn't break the story.

Can anyone enlighten me on the media's argument?

[H2O Man]

12. Great information here!

I hope you will consider adding to to the Plame Threads. Maybe it is a good time to start another one, with an open discussion of the issues this thread is dealing with.

I think there are two distinct issues: (1) Should the reporters in question have to follow the law as it now stands?; and (2) Should the law be examined in the near future, to re-consider what the Constitution considers "freedom of the press" to mean?

The republicans say they hate "activist" courts, yet it was very clearly the republican-influenced federal decision that now mandates that reporters reveal information under specific circumstances, to a grand jury investigation. This is in line with other civil court precedents. I'd be in favor of a national discussion of this, but would prefer the Kerry Administration be firmly in office before taking it up in the congress -- which is where it should start.

On the very first Plame thread, I said that this case threatened to create a severe constitutional crisis, involving the concepts of the balance of powers (re:separation of powers) in our federal government. Will we remain a constitutional democracy? This is serious business.

Still, I think that we will not be in a position to have that discussion, unless the federal grand jury is able to use the power that it is -- at this time -- supposed to have. If the criminals in the administration are allowed to get away with this, then there is no constitutional democracy in any sense ..... and the Bill of Rights will become extinct for all practical purposes.

[Kagemusha]

15. The controlling legal authority here (cough..) is from the Nixon era

I caught up on it just now. It's a very... squishy, squirmy ruling, saying, "Freedom of the press is really, really important, but if the need to violate that freedom is really, really, REALLY important, then it's OK."

And remember, freedom of the press primarily means freedom to report and to not be prevented from reporting. The press is not a national intelligence agency. They're not priests or doctors. More importantly, they're not spooks... and I feel very awkward about the idea that people violating national security with wanton disregard for the public's safety should be spoken of in the same breath as the Pentagon Papers. That's like saying Auschwitz ex-prison guards need to be protected with the same vigor as Auschwitz ex-prisoners.

[Snazzy]

14. Yesterday's ruling based on Branzburg v. Hayes

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=665

Which was about reporters, grand juries, hasish and Black Panthers in '72.

(This whole Plame case would make a fine novel, you bring in the hash and black panthers and you're there.)

Interesting times! I'd be firmly on the other side in that one, which makes me think it is indeed not so simple as a blanket stand, but maybe more of a personal ethics thing on the part of the reporter.

JMM has some discussion on just this today, which I thought was pretty interesting (I seem to agree with the guy he is quoting) re: bad-faith leakers.

http://www.talkingpointsmemo.com/archives/week_2004_08_08.php#003263

[MallRat]

20. JMM poses an interesting question, re: Novak.

"Of course, all of this leaves rather a mystery about why Fitzgerald is picking on Cooper and Russert, while not putting the same screws to Robert Novak -- the man who clearly could give the most salient and probative testimony in this case and who, let's be frank, most deserves to be put in this position.

He, after all, is the one who actually chose to report the leak and become the hand-maiden of the bad act."


Is it possible that Fitzgerald isn't bothering to flip Novak because he has other sources? Could this also mean that Novak is being targetted for indictment rather than for his testimony?

-MR

[Kagemusha]

23. That's the easiest way to interpret this, yes.

If he has other sources that can prove that Novak knew what he was doing and was not just an innocent purveyor of information he may be in some serious trouble.

Edit: And one way to get those other sources is to get Russert etc. to squeal about the background surrounding the leak. That's obviously what the whole investigation is really about.

[Snazzy]

24. Sounds about right to me

Novakula did something the other reporters didn't do, he actually reported it.

Maybe that will end up being pursued as its own crime. His own guilt is in his column. Plus it's obvious he would be hostile or even misleading, since he's so obviously in Bushco.'s pocket.

There is a second wave of reporters being subpoenaed (Pincus for one), so maybe FitzG is working up to him.

[Eloriel]

26. :-)

WHAT a pretty thought! Thank you for that -- brightened my whole dreary damned rain-soaked day.

:toast:

[lancdem]

27. He went after these guys first

to get the court ruling he wanted to go after Novak, who's a hostile witness. The WaPo article on today's front page quotes lawyers saying that. Novak has hired an attorney and the attorney refused to comment on whether Novak has been subpoenaed. Since Walter Pincus just go tone, I'll bet Novak has, too, or will very shortly.

[The Backlash Cometh]

17. A half dozen reporters landing in jail? Is that a bad thing?

It's an opportunity. At least they'll be where they can write about prison conditions and do some good for a change.

[GliderGuider]

29. It's like that old lawyer joke

Q: "What do you call a half dozen conservative reporters in jail?"
A: "A good beginning..."

[hang a left]

34. LOL n/t

[coeur_de_lion]

25. ..

[SidDithers]

31. I wish that the reporters contacted about Plame...

who chose not to write about her had written a different type of story. Something along the lines of "This reporter has been contacted by (whoever) and that person blew the cover of a CIA agent."

The story should have been the fact that identity information was being peddled. The story should never have been the identity information.

Sid

[denverbill]

32. Surely the 'leaker' will do the honorable thing.

I mean, if I had leaked this info, I wouldn't want somebody else to go to jail while I walk free.

Then again, honor and Republicans don't mix.

[bullimiami]

35. These satan worshippers

would rather rot in hell than expose the rotten black heart of their antichrist.
NOW its about the first amendment. BULLSHIT BULLSHIT BULLSHIT.

They would aid these Treasonous Bastards and hide behind the Constitution.

F them all to hell.

I hope we all remember how these slimy fungus eaters acted when Mordor is overthrown and they start acting like they helped.

[tom_paine]

38. Oh well, the Judidcal Arm of the Coup (neither supreme nor a court)

will Obey their Bushevik Masters.

100% chance.

Identical chance to Hitler receiving a favorable ruling from the Nazi Judiciary.

That would be the end of it.

Looks like another Win for the Imperial Scum!

[coreystone]

45. I fully understand the 1st Amendment rights...

as declared. Protecting sources can be, however, an extremely fine line to walk upon. Where is the line drawn which delineates protection of sources for Constitutional intentions (as could be debated endlessly), and, those which are so abusively utilized in jeopardizing the national security of this nation for political expediency on the part of those who would abuse the 1st Amendment to hide from their irresponsibility in participating in a treasonous act as we have witnessed.

To the media, I say “GET IT RIGHT THIS TIME”……it has been so long that you have done so!!!
:grr:

[bvar22]

47. They are protecting a TRAITOR!

The outing of MS. Plame destroyed a worldwide covert network that tracked WMD! The destruction of this network has made it easier for Al-Qaeda or others to obtain WMD. Why are these organizations working so hard to protect an enemy of the American people???

If it were me, and the DoJ wanted to know who the traitor was, I would consider it my PATRIOTIC DUTY to point the finger at Cheney, his staff, and his sock puppet. But hey, that's just me.