What crime, exactly?
Adam Liptak has a finely-wrought story in the Times now about the Judy Miller situation. It must have been a painful headline to see in print: New York Times Reporter Jailed For Keeping Source Secret.
Judy Miller didn't have enough of a story for the Times to publish. No one knows precisely what crime the prosecutor is investigating. And a journalist (someone that New York magazine intimates isn't liked very much) goes off to jail — charged with civil contempt — after shakily reading a statement about the importance of a free press. It's all so strange.
Someone asked tonight, “Why is she protecting whatever jerk was her source?” Reporters care a great deal about protecting all their sources, but some reporters involved in this situation have presumably talked to the prosecutor. Robert Novak. The Post's Walter Pincus. Those reporters, no doubt ably represented, appear to have made the decision that the fact that their sources may have been committing a crime by leaking the CIA agent's name vitiated their privilege not to talk about that source. Matt Cooper's source has let him talk, so he's talking.
Why is Judy Miller not taking this route? The Times staunchly says that her approach is principled. It seems to me that this is a terrible test case, and it may undermine other reporters' efforts to claim the privilege in more appropriate circumstances. I tend to think that the reporter's privilege is important — and we have other privileges that we care about as well, like the attorney-client privilege and the priest-penitent privilege, and all the rest — but these privileges are rebuttable under some circumstances. On the other hand, because we don't really know what the prosecutor is up to, it's difficult to assess the propriety of asserting the privilege in this particular context.
So — I applaud principles and privileges, but this entire morass is bound to have negative effects on an already-troubled profession. The prosecutor seems vindictive. I wish he would back off — that's the piece that seems most moveable on this particular chessboard.
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2 Responses to “What crime, exactly?”
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Susan -
I'm a Cardozo student who's been reading since I started here in January. This topic is of great interest to me.
I think Miller is getting completely played on this and has undermined the field of privilege by going to the mat for her sources. The fact is, the privilege exists to protect anonymous sources who fear retribution. To whatever extent that states have recognized a privilege it has been for the sake of whistleblowers, with the understanding that giving the right to anonymity is in the best interest of society.
Miller's anonymous sources were not anonymous due to fears of retribution - rather they were anonymous, as is often the case in DC, in order to give the leak plausible deniability. Meaning, if Rove (or whoever else was behind this) were to be public with their smear on Plame they would face charges. Not out of the nobility of their act, but out of the fact they are breaking a law. If journalists want their privilege respected, then they should recognize that it is not just a tool to ensure that they get scoops, but rather an understanding meant to serve the public. Claiming privilege in a case in which the media is being used weakens that claim for all legitimate uses.
After being sure that a crime had been committed (see editorials from the beginning of Oct 2003), the Times applauded the appointment of a special prosecutor.
Fitzgerald, “a respected career prosecutor” must be able “to use the full powers of a special counsel, including the ability to seek Congressional intervention if he finds his investigation blocked by a government official or agency” (NYT, Dec. 31, 2003 “The Right Thing, At Last.”) Government agency yes, newspaper no. Congressional intervention yes, judicial intervention no.
Only after Miller was threatened with jail did the NYT switch views and question whether a crime was committed. “Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives.” (NYT 2/26/05).
Of course, that's what the special prosecutor is for.
From the very beginning many questioned whether a crime had been committed. See “Best of the Web Today”, http://www.opinionjournal.com for 10/6/2003 and 10/7/2003 along with an editorial, “Prosecutor of the Times” on 2/23/2005 by the WSJ, for two examples.
Looked at through this lense, Miller is an even worse test case. Having clamored for a special prosecutor and gotten it, having switched from being positive a crime had been committed to doubt, a NYT reporter sits in jail, the paper having found the requested medicine just a tad bitter.