07/31/2008 01:47 pm ET | Updated May 25, 2011

The Federal Shield Law Would Put Judy Miller in Jail

There she goes again, dancing around some inconvenient truths. Arianna catalogued her track record of hypocrisy. Let me add in one little smoking gun.

US News: If a federal journalism shield law were in place three years ago, how would it have affected your case?

Judith Miller: That's impossible to know. I would like to think that perhaps Patrick Fitzgerald would have been deterred from issuing a subpoena or he may have thought twice, or three times, or four times about it before he issued it. The lawyers are divided about whether or not it would have helped my particular case. "Judith Miller: The Media Shield Law Is Long Overdue," U.S. News & World Report, July 29, 2008

"The lawyers are divided"? Maybe between those who choose to read the law and those who don't. The texts of the House and Senate versions of the Free Flow of Information Act, which codify a reporter's privilege against disclosure of confidential sources, are very clear. If the law were in place four years ago, Judy Miller's frivolous appeals would have been dismissed out of hand. She would have gone to jail sooner.

The sad news is that yesterday 42 Republican Senators and Harry Reid [?!] obstructed the bill by voting against cloture.

The House and the Senate bills specify circumstances when a prosecutor may overcome the privilege. The statute uses the same standards set forth by Federal Circuit Judge David Tatel, whose well-regarded opinion rejected the appeals of Judy Miller and Matt Cooper. As I previously wrote on HuffPost ...

Before a court may compel a journalist's disclosure of confidential source information, a prosecutor must surmount a number of hurdles to the satisfaction of a judge. In Miller's case, the Federal District Court Judge and three Federal Circuit Court Judges all agreed that Patrick Fitzgerald had surmounted those hurdles. Specifically, in a criminal investigation into the leak of classified information, the prosecutor who seeks the identity of the leaker must first demonstrate:

- That all other reasonable means of obtaining the information had been exhausted,
-That there are reasonable grounds to believe that a crime has occurred,
- That the requested information is essential to the investigation, prosecution or defense,
- That the purported crime involves a person who had authorized access to classified information and who made an unauthorized disclosure that "has caused or will cause significant, clear, and articulable harm to the national security," and
- That the public interest in compelling disclosure of the leaker outweighs the public interest in gathering or disseminating news or information.

If a judge is persuaded by a preponderance of the evidence that those hurdles have been met, he may compel the journalist to give narrowly tailored disclosure.

As Judge Tatel wrote three years ago in his opinion that rejected the arguments of Judy Miller's appeal:

"Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury's need for the reporters' evidence, I might have supported the motion to quash. Because identifying appellants' sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court's orders compelling their testimony."

Had Judy Miller not filed her frivolous petitions predicated on bogus legal arguments, Fitzgerald would have been able to wrap up his investigation and hand down indictments in 2004. The political consequences of her stalling and the havoc she imposed on her employer represent her legacy in the Plame affair.