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Tuesday, February 15, 2005

DC Circuit rejects appeals of contempt citations in Plame matter

The NYT's Judith Miller (Jack Shafer's ridiculous "impossible minx") and Time magazine's Matt Cooper — bigtime MSM journalists who think their jobs require them to defy lawful court orders — are a step closer to doing jail time in connection with the Plame investigation. In opinions totalling 83 pages that were released today, the United States Court of Appeals for the District of Columbia has rejected their appeals from the district court's orders holding them in contempt for refusing to testify.

This result at this stage is absolutely no surprise to anyone even vaguely familiar with solid U.S. Supreme Court precedent on point. I suspect that Floyd Abrams considered the DC Circuit a mere way-stage en route to his attempts to convince the Supremes to change the law.

I haven't read the DC Circuit's opinion yet, though, and want to do so tonight before I venture any predictions as to Mr. Abrams' chances of getting certiorari granted (or, preliminary to that, an en banc rehearing before the entire DC Circuit). However, the indispensible Howard Bashman — whom I'm sure will be providing more links throughout the day to press coverage and punditry — notes that "it's not every day that a three-judge panel produces a decision consisting of four opinions."

My money's still on the minx and her buddy from Time eventually going behind bars, though. I continue to think that this is probably the worst possible fact pattern from which to ask the Supreme Court to create some new federal constitutional immunity unique to court-defying journalists.

(Hat-tip to Jonah Goldberg on NRO's The Corner.)


UPDATE (Tue Feb 15 @ 3:20pm):  Orin Kerr quotes interesting language from the opinions about bloggers' ability to claim the privilege that Mr. Abrams and his clients are trying to create.  Dicta, but interesting.


UPDATE (Tue Feb 15 @ 6:10pm):  I'm twenty pages into the opinion, but I can already draw this confident conclusion: 

Do not be fooled by whatever positive or hopeful spin that Time, the NYT, Ms. Miller, Mr. Cooper, their lawyer Mr. Abrams, or anyone else tries to put on this — their team has just been soundly and competently whipped. Despite the length of today's DC Circuit decision and the existence of three separate concurring opinions, it would be a serious mistake to infer that the DC Circuit was confused about what it was doing, or that anything its three-judge panel said today is likely to help these particular journalists make new law, either in the en banc DC Circuit or in the U.S. Supreme Court.

In all probability I'll wait for the news analysis pieces in the NYT and WaPo to come out later tonight before writing about the details of today's decision myself in a separate post. I have a strong hunch there will be some serious fiskin' needed.  I'll also rub my crystal ball to come up with "Beldar's Odds On Further Review," but I can tell you now that Mr. Abrams' clients will be underdogs by overwhelming margins. To use a football metaphor: They're behind by four touchdowns, a field goal, and a safety entering the third quarter, and the journalists haven't so much as made a first down yet in the whole first half. [Edits: I've adjusted the metaphor slightly after re-reading the opinions; see the new post immediately above for details — Beldar]

Posted by Beldar at 12:53 PM in Law (2006 & earlier), Mainstream Media | Permalink


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Tracked on Feb 16, 2005 12:53:23 AM


(1) Boger made the following comment | Feb 15, 2005 2:46:54 PM | Permalink

When is Beldar going to explain to his readers the possible reasons why it isn't Novak who is in contempt of court: "[V. Plame's] name was published in a 2003 column by Robert Novak, who cited two senior Bush administration officials as his sources."

(2) Beldar made the following comment | Feb 15, 2005 2:48:44 PM | Permalink

Boger, I've moved your comment to this thread, where I think you intended to leave it.

All we know is that Novak hasn't been cited for contempt of court in public proceedings. We don't know whether he's cooperated voluntarily; or if not, whether he was subpoenaed to testify before the grand jury and complied with that subpoena to the prosecutor's satisfaction; or if not, whether (for tactical reasons) the prosecutor may be putting Novak last in line for potential contempt proceedings. Any of these strike me as about equally probable.

The only people who know the answer to your excellent question for now, then, Boger, are Mr. Novak (and his counsel), the prosecution team, and the grand jury.

(3) Neo made the following comment | Feb 15, 2005 7:39:28 PM | Permalink

There really is no need for new law here. I find the idea of forming a forth estate under the Constitution unsettling, at best.

MR. McCLELLAN: "The issue comes up -- it becomes, in this day and age, when you have a changing media, it's not an easy issue to decide or try to pick and choose who is a journalist."

(4) Neo made the following comment | Feb 15, 2005 7:53:56 PM | Permalink

The think the answer to Boger post has to do with the actual federal statue that requires a pattern of activity. Mr. Novak is a mere instance. These reporters can speak to the issue of other instances. If there is another, there may be a pattern. That's when Mr. Novak will be called before the grand jury.

Of course, this is my conjecture.

(5) Al made the following comment | Feb 15, 2005 9:43:54 PM | Permalink

What if Joe Wilson himself was the first person to use his wife's full name in public after already attaching 'my wife' to 'CIA operative'.

Which would explain why all the intermediate steps of (at least nominally) showing who the leak _wasn't_ seem like kicking the hornet's nest.

(6) Boger made the following comment | Feb 17, 2005 3:04:24 PM | Permalink

The Affaire Plame is about the claim that Madame's identity (name and true career) was leaked to Robert Novak as a political attack on her husband (Joe Wilson), and that this leak (the disclosure to Novak, not his disclosure to the public) was in violation of law.

The smoking gun in Affaire Plame is a single paragraph in a WaPo article by Novak on July 14, 2003, titled Mission to Niger. Novak:
"Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him."

Mr. Novak's second WaPo article on Affaire Plame was run on October 1, 2003, under the title "CIA Leak." As this matter metastasizes I think it is a help to stay refreshed on the basics. On rereading, I do fault Novak for mentioning Plame's name after he was given sufficient notice by the CIA that it would not be appropriate to do so. He essentially admits that his CIA contact told him Plame was a person "covered" under the "National Agents Identity Act." He can slice and dice it any way he wants, but it was irresponsible to use her name after hearing that. Also, despite his disclaimer that the information from a senior administration official was "not a planned leak," it is not lost on me that Novak does not tell readers who called whom.

A fellow blogger here, Neo, has talked about a "pattern" as the likely underlying basis of Cooper and Miller's legal problems. I think he is right even if I don't understand why that element has to be present. (If you out an agent just once, or disclose classified material just once, you haven't committed a crime?) But I have read these teasers about 5 or 6 other journalists being involved (eg, Andrea Mitchell, Russert). Did Novak's senior administration official call them (evidence of a campaign, a pattern), or were the journalists all pulling on a rumored Plame story (origin unknown) and working the phones (and Novak was just part of the feeding frenzy?). It depends on who called who. This possibly key point might be reflected in Novak's statement, "When I called another official for confirmation, he said: "Oh, you know about it." (CIA Leak) In other words, this official had received calls from other journalists prior to Novak?

It gets couriouser and couriouser.

(7) Neo made the following comment | Feb 19, 2005 4:16:25 PM | Permalink

I'm not a lawyer, but it doesn't take a lawyer (no offense to Beldar) to actually read the statue involved with the "Palme" case. It allows for the sanction of people or organizations shown to have a "pattern" of activities take cause the exposure of an agent of the CIA, etc. But please don't take my word or my recollection of the statue as the truth. Please go read the statue. It is as easy as that.
But remember when you read this statues that the intended effect, what you read about it in the newspapers and blogs, and the wording of the statue don't always (maybe never) agree.
In the case of Palme, my limited understanding of the statue, from actually reading it not about it, would lend one to believe the Mr. Novak will probably walk, no matter. As for whomever told Mr. Novak, I wouldn't be so quick.
My real point here is that the law is based on the statue, and whatever case law may exist, not on what everyone at this newspaper or that blog says it contains or means. Wishing doesn't make it the law.

(8) Neo made the following comment | Feb 21, 2005 9:07:31 AM | Permalink

The most relavent sections of the Intelligence Identities Protection Act are section 421, section 422, and section 426.

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