John Dean Agrees with Me

Monday, April 25, 2005

John Dean Agrees with Me

This isn’t something I’m especially proud of. On the other hand, when it comes to muscling reporters to reveal their sources, working for the Nixon administration probably gave Dean considerable insight.

I’ve blogged previously here, here, and here on the legal issues surrounding the Intimigate special prosecutor’s insistence that reporters reveal the “two senior administration officials” who leaked Valerie Plame’s name and job to Robert Novak. (A couple of my posts have to do with a TV reporter in Rhode Island who ended up going to jail for criminal contempt in a similar case).

Now comes John Dean, noting that Judith Miller of the New York Times and Matthew Cooper of Time magazine are almost out of appeals in Intimigate. They refused to divulge their source to the grand jury, and the district court held them in civil contempt. Pending appeal, life has gone on as normal. But unless the contempt orders are overturned, Miller and Cooper will eventually go to jail and pay $1000 per day until they answer the special prosecutor’s questions (I assume their employers will cover the fines, but the reporters will have to do the jail time). A D.C. Circuit panel affirmed the contempt orders, and the full court just declined to rehear the case.

That leaves only one more appeal: to the Supreme Court. Dean thinks the Court won’t take the case, and I think he’s right. Dean also thinks, as I did, and as David Tatel of the D.C. Circuit said in his concurrence to the denial of rehearing, that existing Supreme Court case law quite clearly covers this case. That is, from the outset it’s been obvious that Miller and Cooper had no legal basis to refuse to testify (the same goes for other subpoena recipients like Tim Russert, who apparently backed down and did testify). The only thing that could change that would be for the Supreme Court to overrule or limit its seminal decision in this area from 30 years ago. I agree with Dean that the Court would take this case only if it were seriously considering overruling its precedent. Dean gives a few reasons why the Court is probably not interested in doing so, and I think there are additional reasons.

So can we look forward to a wrap-up of the grand jury’s investigation--and, presumably, some indictments--in the near future? Probably not quite yet. Miller and Cooper have 90 days from the denial of rehearing to file their cert. petition with the Supreme Court. That’ll be some time in late July. When the Court returns from its summer recess at the end of September, it’ll start issuing massive orders denying certiorari in long lists of cases that will have been filed over the summer. So the earliest this could be over would be in early October. But if the Court considers this petition less than a slam-dunk, it might hang onto it for a while. If the Solicitor General decides not to file an opposition to the petition, as he often does, the Court might review the case and then request the S.G. to file an opposition. That could drag out the Court’s review of the petition into the new year.

Even then, Miller and Cooper might elect to go to jail for at least a short while as a protest against what they’ll see as the invasion of a reporter’s privilege. So who knows when we’ll see the end of this? Under the scenario I’ve outlined, they might testify in February or March 2006, and maybe we’ll have indictments by about a year from today. Of course, if the Court agrees to hear the case, we might not have a decision until June 2006 or even (though not likely) June 2007--and the decision might require the district court to start all over and gather evidence in order to apply a new constitutional test announced by the Supremes.

Two points about this process continue to interest me. First is the fact that Bush could make all of these problems go away by requiring all of his senior advisors to sign a waiver of any confidentiality promise they got from Miller, Cooper, Novak, et al. Indeed, in response to an earlier subpoena, Cooper initially refused to testify, but then (according to the appeals court)
“agreed to provide testimony and documents relevant to a specific source who had stated that he had no objection to their release.” The reporter in the Rhode Island case also said that the defense lawyer who had leaked a videotape to him, in violation of a court order, had continued to request that his identity be kept confidential, and that if he had not, the reporter would have disclosed it.

The White House isn't going to make its officials waive confidentiality, of course--that would make it too easy to trace the leak back to the politically embarrassing source. But it is something to bear in mind when the reporters testify at trial. Can you just see this administration, notoriously unsympathetic to the First Amendment and the importance of the press’s reporting on government conduct, whining about how the courts are violating the reporters’ sacred right to keep their sources confidential? I hope someone (Timmy R? Are you listening?) points out that the administration could have protected the reporters’ rights by requiring waivers, but instead they protected criminals by allowing them to hide behind the reporters’ bravery in the face of jail time. (Not that I like this rhetoric, but considering that Dubya is the kind of non-libertarian conservative who thinks that defendants who refuse to testify are “hiding behind” the Fifth Amendment, I say have at it.)

The second point is that Novak himself has apparently not been requested or subpoenaed to testify before the grand jury. If the point of the investigation were simply to identify the leaker for prosecution, you’d have thought Novak would be the first reporter called before the grand jury. Why hasn’t he been? I can only guess, but I wonder whether the special prosecutor thinks that Novak might be criminally liable. I’m not sure what the theory would be; IIRC, 18 U.S.C. § 2 would cover aiding and abetting a federal crime, but was Novak’s publication of the leak aiding and abetting? Or could Novak be indicted for conspiracy to violate the statutes protecting classified information? Either theory seems a stretch to me. But if there's a realistic possibility he could be prosecuted, Novak could properly refuse to testify before the grand jury--not because of a reporter’s common-law privilege, but because of his Fifth Amendment privilege against self-incrimination. If he invoked that privilege, then the only way the prosecutor could force him to testify would be to grant him immunity.

Perhaps the prosecutor wanted to keep open the possibility of seeking an indictment against Novak once he’s gotten more facts from the other reporters. In that case, he might not have wanted to force Novak into taking the Fifth. That would require the prosecutor either to give Novak immunity or, by refusing to do so, indicate that he considers Novak a possible defendant before he knows enough about the evidence to want to commit himself on that question. Questioning reporters who also received the leak, or similar leaks, but who did not go to print with them might be a way to delay the decision.

So, long story short: Don’t expect the climax to the special prosecutor’s investigation any time soon; but do expect some dramatic moments along the way.

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