Yesterday’s Thoughts

June 29, 2005

Miller and Cooper, but not Novak?

Kevin Drum is in favor of a national shield law for reporters. This law would protect the ability of reporters to conceal their sources in federal courts. Similar protections for reporters exist in some states – California is one, and would be similar to the protections given to priests, lawyers and physicians, among others.

As Kevin notes in defense of the proposed laws, the existing laws have exemptions. You are still required to testify to any crimes which you witness, or have independent knowledge of outside your professional relationship. You can’t use the protection to conspire to commit additional crimes. I think there is also an imminent danger provision in some of these laws.

Kevin believes that the shield law would protect reporters Judith Miller and Matt Cooper. Cooper and Miller face jail for refusing to testify about information that they received in relation to the Plame affair where columnist Robert Novak revealed that Valerie Plame was a CIA agent. Miller and Cooper had been pleading first amendment exemptions, but on Monday the Supreme Court refused to hear their case, so they will now be compelled to testify, or go to jail.

A curious aspect of their case has always been the fact that Miller and Cooper, who did not report on the information that is alleged to have been leaked to them, were being pursued, while Novak was not. Miller and Cooper received but did not act on illegal information; Novak both received and acted on that same information. Why not compel Novak to name the source, instead of Miller and Cooper? (This presumes that Novak hasn’t named names, see below.)

Reading Kevin’s post and the comments gave me some insight into a plausible explanation.

Imagine the reasoning of the prosecutor:

Novak wrote the story. He was acting as a journalist. So he might actually be covered by the first amendment, or at least under the protections the journalists have consistently asserted before the recent Supreme Court decision.

Miller and Cooper didn’t write anything. They were witnesses to a crime, but not in any material sense journalists, so they can be compelled to testify. They can’t assert journalistic privilege when they didn’t act as journalists.

If this is true, then Miller and Cooper might have been better off writing a story.

This is more plausible than any other theory that I know of to explain why Novak isn’t being compelled to cough up names, if he hasn’t.

It is possible that Novak has told all, but then the problem is why someone hasn’t been charged. There has to be a ton of evidence — call logs, diaries, secondary witnesses — that would support Novak’s testimony, if he has given it. The prosecutor would probably want to have additional information, but not having it wouldn’t be that significant.

Well, there is one more possibility. The prosecutor needs an exceptionally tight case, either because the suspect is a very big fish, or because of other explosive revelations tied to the suspect.

Update July 5, 2005 — Mickey Kaus suggests that only journalists who are committing journalism be allowed to conceal their sources. This would enshire my suggested theory in law.

He also points out the problem with my theory. Cooper did write about his informants.

some government officials have noted to TIME in interviews, (as well as to syndicated columnist Robert Novak) that Wilson’s wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.

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