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Miscast Martyrs

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Judith Miller and Matthew Cooper are to be sentenced on Wednesday. It is time for them to stop obstructing a legitimate federal investigation and misusing the mantle of the First Amendment.

1. At the time Miller and Cooper apparently promised absolute confidentiality to those Bush administration officials who unlawfully leaked Valerie Plame’s identity as a covert CIA operative to them for partisan political purposes, they had no legal authority to make such a promise. Congress has steadfastly refused to enact a journalist-source privilege and the Supreme Court held in 1972 that the First Amendment does not create such a privilege of its own force. Although Miller and Cooper were no doubt acting on a sincere belief that the law should recognize an absolute privilege for confidential communications by sources to reporters, they could not possibly have believed that the law did recognize such a privilege. This was nothing more than wishful thinking on their part. As such, these promises were unauthorized, unprofessional, and irresponsible. An analogy might be a person who promises a criminal that if the criminal will let him accompany him to the scene of a crime he won’t tell anyone what he sees. The person has made a promise, but it is not a promise authorized by law and the person has no right -- legal, moral, or otherwise -- to keep such a promise in the face of a judicial order to the contrary.

2. Miller and Cooper would argue, of course, that this is a terrible analogy, because the promises they made are quite different. In their situation, the law should recognize a privilege, and it is the law’s “fault” that this problem has arisen. Surely, the concept of a journalist-source privilege makes sense. But the privilege that would be necessary to shield these leaks goes well beyond what almost anyone has previously proposed. Unlike the federal government, most states have enacted shield laws. But most of those laws require reporters to reveal their sources if the prosecutor can demonstrate that he has exhausted all other means of obtaining the information and that the information is necessary to an important criminal investigation. In the Plame case, every federal judge who has reviewed this matter has found that the prosecutor has satisfied this standard. Moreover, even the dissenting justices in the 1972 Supreme Court decision in Branzburg v. Hayes, argued for only a qualified privilege that could be overcome by the sort of showing already made by the prosecutor in this investigation.

3. Even an “absolute” journalist-source privilege should not shield Miller and Cooper in the circumstances of this investigation. The purpose of a privilege – whether attorney-client, doctor-patient, or journalist-source – is to encourage the client, patient, or source to speak candidly. But for the privilege to attach, the speaker must be acting in a manner that serves the goals of the privilege. In the attorney-client context, a client who seeks advice from a lawyer to learn how to commit a federal crime is not protected by the privilege (and the attorney can be compelled to disclose the communications) because the goal of the privilege is not to encourage that use of an attorney. In the doctor-patient context, a patient who speaks with a doctor not for the purpose of medical treatment but to figure out how best to defraud an insurance company is not protected by the privilege (and the doctor can be compelled to disclose the communications) because the goal of the privilege is not to encourage that use of physicians. And in the journalist-source context, a source who leaks information to a reporter in order to commit a federal crime (in this case, “outing” a covert CIA agent) is not protected by the privilege (and the journalist can be compelled to disclose the communication) because the goal of the privilege is not to encourage government officials to manipulate reporters to enable them to violate the law. What distinguishes the leak in the Plame case from 99% of journalist-source situations is that in this situation the leak itself was a criminal offense. By definition, no public policy encourages unlawful leaks or shields such leakers.

4. What we have here is a case of serious journalistic overrreaching. Miller and Cooper begin with a sound principle and then distort it all out of proportion. Of course, they were entitled to pursue their legal arguments to the highest court in the land. But having done so, and lost, they now have a responsibility to comply with the rule of law – the very same rule of law that provides robust protection to the freedom of the press. There is no legitimate basis for their arrogant claim that they are “above the law.” And there is no legitimate basis for their claim that their obstruction of justice is “civil disobedience.” It may be moral to refuse to obey the law when the legal system itself is corrupt or oppressive or unjust, but there is no reason whatever to believe that is the case here. Here, they simply lost.

5. It is worth noting that the crime under investigation in this dispute is no small matter. The question is whether high Bush administration officials grossly abused their official power to jeopardize the national security for partisan political purposes. As newspapers like the New York Times observed at the time Robert Novak first broke this story, this is a matter of potential Watergate-level consequence. At that time, the New York Times rightly demanded an aggressive investigation of the leaks, and that’s exactly what it got.

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