Beldar's scorecard on the DC Circuit's Plame decision today: Prosecution 34, Journalists 0

Credit where due: Adam Liptak's news article about today's DC Circuit opinion in the NYT's online edition tonight is really darned good. I fully expected to have to fisk it, but I see no fiskable lines except the final quote from his scofflaw colleague, Judith Miller, which Mr. Liptak can't be faulted for reporting:

"I risk going to jail," she said, "for a story I didn't write, for reasons a court won't explain."

Judy, Judy, Judy: You risk going to jail for disobeying a federal district court's direct order to testify about a possible crime that could imperil national security. Minx or no minx, you're not above the law, and the public is entitled to every citizen's evidence. But I shan't digress further in chastising Ms. Miller, for I've fisked this same stuff from her twice before at great length.

And on its own, the DC Circuit's lengthy decision today is absolutely fascinating for hard-core law wonks, especially ex-judicial clerks. Indeed, I feel the urge to write several thousand words about it — dry quotes from the written opinions, connected by an over-extended football metaphor, leavened with dollops of snark.

If that's not your cuppa tea, I will absolutely take no offense, gentle reader. And honest-to-Pete, Mr. Liptak's article probably has everything about today's decision that a reasonably well informed nonlawyer would want or need to know. Wapo's much shorter article isn't bad either; although more superficial, it also gets the basics right.

Overall Scoring Recap

Today's officials — the three-judge panel of the DC Circuit — were Circuit Judges David Bryan Sentelle (appointed by President Reagan to the federal district bench in 1985 and to the DC Circuit in 1987), Karen LeCraft Henderson (appointed by President Reagan to the federal district bench in 1986 and by President G.H.W. Bush to the DC Circuit in 1990), and David S. Tatel (appointed by President Clinton to the DC Circuit in 1994). All three joined in the initial opinion for the court written by Judge Sentelle, and each also wrote a separate opinion.

However, all three judges, and all four opinions, concluded that the district court's contempt citation should be affirmed. To recap and expand upon my scoring summary from this afternoon (slightly adjusted), all three judges —

• rejected the journalists' argument that they're entitled under the First Amendment to refuse to testify (20-yard TD drive for the prosecution, which started with great field position, plus a two-point conversion, for a total of eight points);

• rejected the journalists' arguments that Justice Powell's concurring opinion in Branzburg controls over Justice White's opinion for a five-Justice majority (including Justice Powell) in that same case (fumble out of the end zone by the journalists, for a two-point safety);

• rejected the journalists' argument that there is an absolute common-law privilege to the same effect, even if that privilege isn't created by the First Amendment as a matter of federal constitutional law (fumbled kickoff leads to a 10-yard prosecution TD drive, plus PAT, for seven more points);

• agreed with the prosecution that even if there were a conditional privilege under common law, the prosecution's presentation would overcome it (30-yard field goal for three more prosecution points; no TD here because the panel fractured on whether there is such a common-law conditional privilege, or even whether it should decide if there is one);

• rejected the journalists' argument that notwithstanding normal rules of grand jury secrecy, they were entitled to review all of the justifying evidence presented by the prosecution to the federal district judge for in camera review (a 55-yard TD drive for the prosecution, plus PAT, for seven more points); and

• rejected the journalists' argument that the Justice Department's special counsel had failed to comply with DOJ guidelines on issuing subpoenas to reporters, and also rejected the journalists' argument that such could be a basis for reversing the contempt citations in any event (a 50-yard TD drive for the prosecution, plus PAT, for seven more points).

My scorecard shows only one play for net positive yardage by the journalists, a completed pass on fourth down — persuading Judge Tatel that there is (or should be) a qualified common-law privilege — but Mr. Abrams was tackled short of the first down marker when even Judge Tatel concluded that it wouldn't apply on these facts.

Score with two quarters remaining to play (i.e., the possibilities of DC Circuit en banc rehearing and Supreme Court review): Prosecution 34, Journalists 0.

Smackdown on the First Amendment Argument

The popular press and the general public have tended to focus on the question of whether the First Amendment creates some privilege or immunity for journalists to conceal their confidential sources, and have tended to ignore the distinct, nonconstitutional arguments that Mr. Abrams advanced on his clients' behalf. In fact, however, Mr. Abram's First Amendment argument was the one least likely to succeed in either the district court or the DC Circuit, because it is the argument that those courts are duty-bound to reject unless and until the United States Supreme Court overrules its 1972 decision in Branzburg v. Hayes.

Branzburg was a five-to-four decision, but the critical fact — obvious to any first-year law student — is that all five Justices who agreed on the outcome (Burger, White, Blackmun, Powell, and Rehnquist) fully concurred in Justice Byron White's opinion — thereby making it a "majority opinion," one deemed to have been written as "the opinion of the Court." Thus, in today's decision for the three-judge panel, we read (at page 12 of the .pdf file):

We have pressed appellants [i.e., Mr. Abrams and his journalist clients] for some distinction between the facts before the Supreme Court in Branzburg and those before us today. They have offered none, nor have we independently found any. Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court [i.e., the United States Supreme Court] has spoken and never revisited the question. Without doubt, that is the end of the matter.

Mr. Abrams was in effect asking the DC Circuit to overrule Branzburg. But no federal district court, nor circuit court of appeals (even sitting en banc), has the power to overrule a Supreme Court decision. That can only be done by the Supreme Court itself, or by an amendment to the Constitution.

Duh. Well, count this one as a "gimme" for the prosecution.

The Journalists Fumble Out of the End Zone on the "Justice Powell" Trick Play

The panel absolutely rejected a ploy by Mr. Abrams to engage in John Kerryesque logic (a la "I actually voted for the $87 billion, before I voted against it"). Mr. Abrams had argued that the panel should focus not on the official majority opinion written by Justice White in Branzburg, but instead on very mushy language in a separate concurrence written by Justice Powell, who was one of the four others besides Justice White who fully concurred in Justice White's opinion for the majority. The panel slapped this down vigorously (at pages 13-14 of the .pdf file; internal citation omitted, boldface mine):

Justice Powell's concurring opinion was not the opinion of a justice who refused to join the majority. He joined the majority by its terms, rejecting none of Justice White's reasoning on behalf of the majority. [Justice Powell] wrote separately "to emphasize" what seemed to him "to be the limited nature of the Court's holding." Justice White's opinion is not a plurality opinion of four justices joined by a separate [opinion from] Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants [i.e., by the journalists].

Granted, to "preserve the point for further review" — to keep alive his hope that the Supreme Court itself may overrule Branzburg if it ultimately agrees to hear this case — Mr. Abrams had to at least "raise" (i.e., state and argue briefly) why Branzburg should be overruled, and no court would be annoyed had he limited himself to that. But quite frankly, a lawyer of any lesser reputation than Floyd Abrams probably would have been mauled for even trying this ploy. Certainly any first-year law student who attempted to make such an argument in class would be humiliated by his professor — with something like "It says what it says, and it's a majority opinion for the Supreme Court, you blithering idiot."

Viewed in the harshest possible light, Mr. Abrams arguably tried to trick the DC Circuit panel into doing that which all three judges on the panel immediately — and quite properly — recognized can only be done by the Supreme Court itself. "Trick" would be too harsh a word for my tastes, and I'm not saying that the making of this argument was unethical — although it may have been uncomfortably close to that border. But this particular argument, at this court level, was certainly such a nonstarter that I'm frankly disappointed that Mr. Abrams made it. If he hopes to persuade the Supreme Court to overrule Branzburg, he needs every ounce of credibility he can muster — and I think he threw some credibility away with this gambit.

Another Ten Points for the Prosecution on Common-Law Privilege

I also question Mr. Abrams' judgment in seriously arguing for an absolute common-law privilege — one that would protect journalists from disclosing confidential sources no matter what the facts might be in any individual case. Floyd, baby, tuck that away in a footnote to preserve the argument for the Supremes if you think you can make it fly there. But giving journalists an absolute privilege is never going to fly — it would be like giving them a license to embed with al Qaeda and drive the suitcase nuke into Manhattan in a NYT press van. The journalists had no precedent to support the absolute privilege pitch, and frankly no even semi-plausible arguments in its favor. The panel unanimously rejected it (pages 16-17 of the .pdf) in one brief paragraph. Another easy TD for the prosecution.

The argument over whether there should be a qualified (i.e., limited) federal common-law privilege — one that can be overcome in cases of extreme prosecutorial need and/or limited "public interest" value in what the confidential informant has revealed — was by far the journalists' best hope in the DC Circuit. Many state legislatures have passed comparable partial shield laws protecting journalists in at least some circumstances (although who they define as "journalists," and how much protection they give, is all over the sandlot).  And there was arguably a gap in prior precedential coverage that didn't wall this off the way Branzburg did the pure-First Amendment argument — a seam in the zone. Thus, the journalists' one completed pass today was persuading Judge Tatel that there either is, or ought to be, such a qualified common-law privilege. But Floyd Abrams couldn't quite get the first down, much less score (which would have required getting two judges to go all the way with the journalists and vote to reverse the district court's contempt citations).

And when the prosecution got the ball back on downs, it put another quick three on the board: All three judges agreed that even assuming some such qualified privilege were assumed to exist, the prosecution's showing that it had exhausted other available sources, plus the low "public interest" in protecting this particular leaker and the high risk to national security from the leak, meant that the prosecution had overcome the qualified privilege based on the facts of this case.

That's why I think the facts of this case make it a terrible vehicle for the MSM to try to make new federal law. To fire up any judge to the point that he's willing to write new precedent, you need a genuinely (or at least arguably) patriotic whistleblower exposing public corruption and being protected by a crusading journalist who actually writes the story — not (as this arguably was) some craven pol threatening national security by leaking slime for purposes of political spin that the journalists pretty much ignored anyway.

Re-running this play in the third (DC Circuit en banc) and fourth (Supreme Court) quarters is still the journalists' only real hope to pull the game out. In theory, it's the journalists' best legal argument. But I continue to think they simply don't have the right hosses on the field to execute the play as it's drawn up in the playbook.

Two More Easy TDs

Pre-indictment, prosecutors have huge discretion, and grand juries are secret. Journalists don't like secrets. But the notion that journalists should get to pry into the prosecution's case for repeated adversarial mini-trials over whether a subpoena should be enforced — that's just another nonstarter. The journalists do get the chance to challenge a subpoena in court, as they did in this very case (but without success). But judges make determinations on privilege questions in camera and ex parte all the time — and unless and until the judge finds that the privilege has been overcome or doesn't apply, the public and the press and the other side don't get to know the prosecution's secrets. Score another seven for the prosecution.

Likewise, the DOJ guidelines are just guidelines, not laws. They say on their face that they don't create rights even if they're violated. And the journalists failed to convince either the district judge or any of the DC Circuit three-judge panel members that the DOJ's Special Counsel had violated them anyway. Tally seven more for the prosecution. Mark up both these scores to bad strategy and weak execution by the journalists' team.

Miscellaneous First-Half Notes

If you knew nothing else about these three judges except which Presidents had appointed them, which one of them would you predict would be in favor of (1) writing sweeping new caselaw from the bench, (2) of the sort that state legislatures have been writing, (3) that Congress could write for the federal courts but hasn't, (4) that readjusts the prior law in a way that favors the mainstream media over law enforcement, and (5) that would require intricate, vague, multi-step "balancing of interests" tests (6) which will pretty well let every trial judge rule however he pleases based on the facts of each given future case? Ayup. That's Judge Tatel's plan, the Clinton appointee. Reads like a law review article, not a judicial opinion based on the case and controversy actually before him. To his credit, he nevertheless got to the right result for this particular case.  But do you still think it doesn't matter who's nominating the new members of the federal bench, or whether the Senate confirms them?

Judge Tatel's separate concurring opinion does, however, make quicker reading than its 41-page length might suggest, because most of pages 30-39 are blank — redacted for reasons unstated, but presumably because that's where he discusses the prosecution's in camera showing on the basis of which he concluded (like the other two judges) that any qualified privilege has been overcome on the facts of this case. One presumes that the en banc DC Circuit and the Supremes will get to read the unredacted version. If so, that's actually more bad news for the journalists — basically a detailed explanation from the most liberal judge on the panel why these particular journalists should lose, no matter what the law might be rewritten to be.

As I mentioned in my post this afternoon, Volokh Conspiracy's Orin Kerr quotes an exchange from today's decision that includes a sweet citation in Judge Tatel's concurring opinion (page 59 of the .pdf) to an NYT op-ed that law prof/blogger extraordinaire Eugene Volokh wrote last December. IIRC, however, Professor V's point, with which I agree, was that all citizens ought to get exactly the same protection, which actually cuts against making special rules for either me in my pajamas or Judith Miller in her — well, whatever female NYT reporters wear when on the job these days. The exchange between Judges Tatel and Sentelle over bloggers-as-privileged-journalists will be the subject of much buzz in the blogosphere over the next couple of days. But I think Judge Sentelle has the better of the argument — and clearly he "gets" the basic concept of blogging at a minimum. That's just way cool on its own.

Judge Sentelle is clearly the least special-rules-for-the-MSM-friendly of the three, and Judge Tatel the most solicitous of the MSM. But if you want to read a great illustration of what a true "judicial conservative" does — sticking to the case before him/her, making the minimum rulings necessary to resolve it, avoiding making new precedent unless obliged to do so — read Judge Henderson's concurring opinion. I genuinely admire it. Appoint and confirm more Judge Henderson-types, faster please.

Second Half Predictions

The fractured panel on the toughest legal issue (the existence and scope of a qualified common-law privilege) actually works to Mr. Abrams' severe disadvantage in seeking en banc rehearing. Between them, these three judges covered all the bases on that legal issue; the chances of another DC Circuit Judge saying, "AHA! They completely missed the such-and-such argument, the whole court should take that up en banc!" are very remote. Everything in the concurring opinions is dicta (i.e., nonessential to the panel's ruling to affirm or reverse, just like Justice Powell's concurring opinion in Branzburg); en banc rehearings are rarely granted just to correct dicta. By contrast, all of the actual bases for the unanimous ruling on the outcome — i.e., that the district court's contempt citations should be affirmed — are pretty much settled law.  En banc rehearings are more often granted when a panel has made too much new law or failed to go along with prior precedent, which just didn't happen here. I peg the chances of the full DC Circuit granting en banc rehearing at five percent or less. (To extend my football metaphor, the third quarter is likely to be scoreless, but running down the clock favors the prosecution.)

As for Mr. Abrams' chances before the Supremes: He's very good, and if anyone can pull a rabbit out of this hat, it'd be him. But I think the chances of getting the current Court to overrule Branzburg outright are slim to none. If Mr. Abrams had an attractive fact pattern, he would have a decent shot at getting four Justices to vote to grant certiorari on the qualified common-law privilege point, but even then, I'm highly doubtful that he could get five of them to go along with Judge Tatel. And because his fact pattern is so awful, I think that by far the most likely outcome — I'd guess an 80 percent probability — is a simple "cert. denied" without comment, concurrence, or dissent. The second most likely outcome (maybe a 10 percent probability) is that cert will be denied, but maybe two or three Justices will dissent (which is basically meaningless except as an invitation to other litigants to try again with a different case in the future).

As I said this afternoon, I think the impossible minx and her buddy are eventually gonna see the inside of the DC federal pokey. And that's how it should be.

But remember, folks: Even if Ms. Miller and Mr. Cooper think this is their Super Bowl, for the prosecution team this is still pre-season! We still don't know whether a crime was committed here — and it's entirely possible that after the prosecution finally extracts the testimony of Ms. Miller, Mr. Cooper, and whoever else they're popping with subpoenas, the Special Counsel will decide not to seek an indictment. Or that if he does, a judge or jury will acquit. I'm not yammering either for or against an ultimate conviction. But by golly, I want to see the prosecutors be allowed to get on with their job and the system eventually do its work, let the chips fall where they may.

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UPDATE (Wed Feb 18 @ 1:20am): Slate's Jack Shafer has a provocative post about today's decision entitled "Memo to Cooper and Miller: Fire Floyd Abrams. Hire Bruce Sanford." Mr. Shafer shows that he can be a pragmatist as well as a First Amendment absolutist when he recommends that Ms. Miller, Mr. Cooper, and their respective employers ought to cut a face-saving deal with the prosecution and pick a better fact situation in which to try to establish a federal common-law qualified privilege; I agree entirely with that. And he's critical of Floyd Abrams on some of the same points I made in this post.

But what occurs to me, reading Mr. Shafer's post — and I ought to have mentioned it in my own — is that it may not be fair to attribute these misjudgments to Mr. Abrams. It's entirely possible that fighting this case to the hilt — arguing every point to the max at every court level, and not making a deal with the prosecutors — is something Mr. Abrams has been instructed to do by his clients, perhaps contrary to his own recommendations in his privileged and confidential attorney-client advice to them.

Ultimately such decisions are the clients' to make, and if the lawyer has recommended a more prudent course but the clients have rejected it, the lawyer has no choice (short of quitting) but to take off his counselor's hat, pick up his advocate's sword, and have at it as best he can. And of course the lawyer can't defend himself from charges like Mr. Shafer's (or mine) without breaching attorney-client privilege — which means that Mr. Abrams might be reading Mr. Shafer's (or less likely, my own) observations, gritting his teeth, and saying under his breath, "Yeah, that's just what I told 'em, but would they listen? Nooooo." We'll almost certainly never know who to pin any misjudgments on.