THE BLOG
10/06/2005 01:09 am ET Updated May 25, 2011

Judith Miller's Eight Bogus Arguments

To put it charitably, Oklahoma Attorney General Drew Edmondson didn't read the court decision he sought to overturn. Still, 30 other state attorneys general co-signed Edmondson's amicus brief before the U.S. Supreme Court. All endorsed Edmondson's claim that the D.C. Circuit Court ruling against Judith Miller "bucks the clear policy of virtually all the states".

"State policy" in this context meant recognizing of a "reporter's privilege" that, according to Edmondson, would exempt Miller from testifying before the Plame grand jury. Edmondson wrote: "In applying the privilege, most states employ a balancing test that weighs the public interest in protecting a reporter's newsgathering and the free flow of information against the relevance of the information, the availability of alternative sources and the public interest in compelling disclosure."

But the D.C. Circuit Court of Appeals ruled against Miller by employing the exact same balancing test. The Federal judges ruled unanimously that the clear-cut balance was against Miller.

So why would 30 attorneys general embarrass themselves before the Supreme Court? Answer: Because their publicity stunt never would never get any real scrutiny. Miller's flimsy legal arguments always got a free pass from the media.

Miller's latest assertion - she waited a year to hear Scooter Libby's waiver was sincere - is the latest in her litany of headscratchers. It's not too late to subject the New York Times reporter's statements to a reality check. This would be a first.

1. "Forty-nine states, all but one state, in our country have now given journalists' sources protection under the state law or by judicial action.. So the federal standard is really out of whack with what the will of the states is at this point." News Forum with Gabe Pressman (WNBC New York) June 19, 2005

But 49 states would never excuse Miller from testifying. Under the qualified privilege extended by most states, Miller would still go to jail. Only 14 states offer an absolute privilege that exempting Miller from testifying under any circumstances. But state laws do not protect national security; that's the exclusive domain of the Federal government. So any argument about "bucking state policy" in Miller's case is fatally flawed.

2."If psychotherapists do not have to tell grand juries about what their patients tell them, surely the public's right to know is just as important in terms of protecting individuals who come forth and talk about wrongdoing to the press." Pressman, June 19, 2005

A reporter's privilege is not the same as a doctor or lawyer's privilege. Nor should it ever be.

First, doctors and lawyers have no privilege protecting client statements made in pursuit of a crime. If you ask your lawyer, "What's the best Panamanian bank for money laundering?" Or tell your doctor, "Double my oxycontin prescription; I'm trying it on my 12-year-old," your words have no protection from the law. Ever wonder why Tony Soprano never talks shop with his psychiatrist?

Conversely, a reporter's privilege is designed to protect illegal statements, because the confidential source often violates his legal duty of non-disclosure.

Second, doctors and lawyers are licensed and duty-bound to enforce legal behavior. Priests are regulated by the Catholic Church. Journalism is open to anyone with access to the internet, where ethical lapses are irrelevant. Which is why 35 states and all federal circuits recognize the need for a reporter's privilege, but also deem judges - not journalists - as final arbiters deciding what stays out of the court. Again, nobody believes that Scooter Libby came forth to "talk about wrongdoing."

3. "I didn't write a word. So I'm doubly adamant that I'm not going to talk about individuals who may have come to me with information that I didn't even write." The Charlie Rose Show February 22, 2005

On planet earth, witnesses are called to testify about what they observed, not only about what they did. Jay Leno testified in the Michael Jackson case even though he did nothing. Here, Miller panders to the dumb and dumber set.

4. "[T]here are many ways in which the government can get this information before [special counsel] Fitzgerald subpoenas journalists." -- Pressman

A flat out lie. Writing for the entire three-judge panel from the D.C. Circuit Court of Appeals, Judge David Tatel wrote, "we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has."

5. "And I think part of the problem here is we are dealing with a special prosecutor. And you don't have kind of the normal political balancing tests. .we've seen this again and again with special prosecutors, where they really do carry on with an extraordinary zeal, without any checks and balances of politics or anything else." The Charlie Rose Show February 22, 2005

Again, the D.C. Circuit decision discredits Miller's claim. Judge Tatel scrutinized the case for any specter of prosecutorial abuse. "The dynamics of leak inquiries afford a particularly compelling reason for judicial inquiry of prosecutorial judgments" he wrote, because the prosecutor "may pursue the source with excessive zeal." So the Court itself should consider whether Miller's "sources released information more harmful than newsworthy."

"Were the leak at issue in this case less harmful to national security or more vital to the public debate, or had special counsel failed to demonstrate the grand jury's need for the evidence," he wrote, "I might have supported the motion to quash [the subpoena to testify]."

6. "Victoria Toensing.. helped write the law that protects the identity of CIA agents. And her view is that no crime was committed here because Ms. Plame may not meet the standard of what constitutes a covert agent; that is, she may not have been operating undercover. The person or people who leaked her name may not have intended to harm her or damage national security." -- Pressman

As Miller's cheerleader, attorney Victoria Toensing spearheaded a media campaign to misrepresent the law. Toensing's talking points are recounted in her amicus brief, submitted with Bruce Sanford of Baker & Hostetler, to request a rehearing of Miller's case before a full panel on the D.C. Circuit. The brief argued that Miller and Matt Cooper should not be compelled to testify before the grand jury because of "ample evidence on the public record to cast considerable doubt that a crime has been committed."

Toensing put the cart before the horse. Grand juries are gathered to determine if a crime has been committed. Since grand jury proceedings are secret, Toensing didn't know what she was talking about. She presumes the only possible crime under investigation is the Intelligence Identities Protection Act of 1982. But any prosecutor would also investigate for perjury, obstruction of justice, conspiracy, or other crimes against national security.

In the quote above, Miller paraphrased Toensing's deceptive spin on the Identities Protection Act. Toensing claimed, on WashingtonPost.com, "Just giving someone a false identity and a front does not meet the legal standard of affirmative measures [to protect Plame's cover] especially when she has a desk job at Langley and is driving in and out every day." But no court ruling or legislative history supports Toensing's interpretation.

The "ample evidence" used in Toensing's brief is a joke. To prove that "the CIA was cavalier about, if not complicit in, the publishing of Plame's name" Toensing cites: (a) the esteemed Washington Times, using anonymous sources to claim Plame's covert identity was first disclosed in the mid-1990's, (b) Robert Novak's claim that the CIA "failed to give him a serious request not to publish her name," and most ridiculously, (c) the fact that Joseph Wilson publicly spoke about his travels to Niger on behalf of the CIA - as if somehow that made Plame's CIA-status an open secret and somehow newsworthy. Toensing embellishes her arguments with bitchy suggestions about the Joseph Wilson and the CIA. But judges aren't stupid. They know the difference between fanciful speculation and real evidence.

Nor do stupid lawyers work for Baker & Hostetler, Reuters, ABC News or any of the 36 major news organizations signing on this embarrassing work product. But, to paraphrase Tina turner - what's law got to do with it? The Washington Post reported "The 40-page brief [only 15 pages of substantive text], . argues that there is 'ample evidence . . . to doubt that a crime has been committed' in the case." And, "Attorneys for the news organizations said yesterday that their decision to submit the brief underscores deep concern in the journalism community over special prosecutor Patrick Fitzgerald's tactics." In the interest of brevity, the Post offered no specifics regarding the "ample evidence" or the prosecutor's "tactics."

7. MILLER: "[S]omething that is even more astonishing to some of us, that the reasons that one of the justices gave for deciding against us are redacted. That is, they're censored from the ruling. So, we don't even know a lot about the thinking of one of the three judges. And I just find this an astonishing turn of events."
BLITZER: "Redacted, presumably for security classified purposes."
MILLER: "Exactly."

CNN: Wolf Blitzer Reports February 15, 2005

Miller knew perfectly well the reason why Judge David Tatel ruled against her and Cooper. What she didn't see was four pages of redacted evidence used in support of that reason. All this conforms to longstanding law. For over 200 years, grand jury proceedings have been secret. Well-established precedent says that a judge, based on his ex parte review of evidence, may impose exceptions to a professional privilege against testifying before the grand jury. Judge Tatel wrote: "Just as due process poses no barrier to forcing an attorney to testify based on the court's examination of the evidence, unseen by the lawyer, that the client sought legal advice in pursuit of a crime, neither does it preclude compulsion of a reporter's testimony based on a comparable review of evidence, likewise unseen by the reporter, that a source engaged in a harmful leak."

8. "What's at stake here is the public's right to know, because we depend for our business on confidential sources, as you've seen with Watergate, as you've seen with the Pentagon papers, as you've seen with Abu Ghraib, as you've seen with the Enron abuses. All of that, all of those stories depended on an individual coming forth and speaking to the press often at the risk of their jobs, their careers, and they ask us in exchange, when their jobs are in jeopardy or their lives are in jeopardy, to protect their identity but use the information. And we must really carry through with our pledges when we promise to keep somebody's identity confidential, or people won't come forth. So this is not about me. It's not about The New York Times or Time or Matt Cooper. It's about the public's right to know." -- Pressman

Watergate and Enron? What about "the public's right to know" if White House officials committed crimes and compromised national security? Or is that the sacred and private domain of a few in the Washington press corps?

When she spoke with Scooter Libby on July 8, 2003, Miller knew that her source had credibility problems over uranium sales from Niger. One day earlier, the National Security Agency had conceded "the reference to Iraq's attempt to acquire uranium from Africa should not have been included in the State of the Union speech" rendering Joe Wilson's motivations all but irrelevant. But Libby's boss, Dick Cheney, was known for trashing those who questioned his WMD intelligence.

Fourth months prior, Mohamed ElBaradei, head of the International Atomic Energy Agency, announced that that the CIA's "documents" used as proof of a Niger uranium sale were "not authentic." Sources cited "crude errors," like a "childlike signature" and stationary from a military government that had been out of power for over a decade.

Cheney's response: "Mr. ElBaradei frankly is wrong. And I think if you look at the track record of the International Atomic Energy Agency and this kind of issue, especially where Iraq's concerned, they have consistently underestimated or missed what it was Saddam Hussein was doing. I don't have any reason to believe they're any more valid this time than they've been in the past." Prophetic words indeed.

So why did Miller believe Libby deserved a pledge of confidentiality? Let's get real. Miller isn't protecting anyone's "right to know". She's protecting the dirty little secrets of Washington insiders like herself.