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Saturday, March 26, 2005

Journalists' amicus brief in Miller-Cooper appeal is a waste of paper

James Taranto's Best of the Web offers this link to a .pdf version of the "friend of the court" brief filed on behalf of many of the "nation's largest news organizations and journalism groups" to urge the en banc DC Circuit to take Judith Miller and Matt Cooper off the hook on their contempt citations. As Mr. Taranto correctly characterizes it, the brief argues that "a federal court should first determine whether a crime has been committed in the disclosure of an undercover CIA operative's name before prosecutors are allowed to continue seeking testimony from journalists about their confidential sources."

I've read it. It's polished, as one would expect. But much of the forty pages comprises introductions and required certifications and tables (including the long, admittedly impressive list of news organizations wanting to be the DC Circuit's "friends"). Unsurprisingly, given that the record is subject to grand jury secrecy and the brief's writers don't have a clue what's actually in it, the record citations are largely to press reports, website speculations, and the like. There are, of course, ringing — and very general — citations to cases and law review articles pontificating about the importance of the press in a free society. But here's the key to the whole brief (boldface by Beldar; citations omitted):

As the Special Counsel concedes, an investigation that is brought in "bad faith" alters the application of Branzburg. While there is no suggestion that the Special Counsel is proceeding in bad faith, there should be abundant concern that the CIA may have initiated this investigation out of embarrassment over revelations of its own shortcomings.

Inadequately concealed behind that passive voice is the admission that makes this whole argument ridiculous: The news organizations can't prove, or even convincingly argue, that the Special Counsel was acting in bad faith when he subpoenaed Miller and Cooper to testify before the grand jury. And there ends the issue.

The brief goes on to argue that

[t]he reporters' counsel should be given the opportunity to contest evidence that exists independently of the grand jury but that is only in the government's possession. If a neutral analyst determines that the CIA lacks sufficient evidence to fulfill the elements of the crime underlying the leak investigation, then no crime under the Act has been committed and any need to compel Miller and Cooper to reveal confidential sources should evaporate.

Well, as it happens, there is a "neutral analyst" that our system assigns to make this determination. It's called a jury. And the way our system works is that the jury is called upon to make that determination at a particular time — but only if and after the prosecution's and grand jury's investigation have resulted in an indictment, and only if and after there has been a trial on the merits, presided over by a judge. It's not the responsibility or the province of grand jury witnesses to make this argument, nor the responsibility or the province of the judge to make a ruling until after the prosecutor and grand jury have returned an indictment.

There's not a single case cited in this brief to the contrary. That's because there is no case to the contrary. And that makes this nicely polished brief filed on behalf of distinguished news organizations a waste of paper — forty pages of it, urging the DC Circuit to turn our criminal justice system topsy-turvy without a single citation of authority on point.

There is one citation missing from the brief that really ought to be there — to Chapter XII of Alice's Adventures in Wonderland:

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first — verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. Nobody moved.

'Who cares for you?' said Alice, (she had grown to her full size by this time.) 'You're nothing but a pack of cards!'

But even a pack of cards, even the Red Queen, knew that charges have to come before trial, verdict, or sentence, whatever the order of the last three. To the MSM's suggestion to the DC Circuit that the Plame case proceed in reverse order, through the looking-glass, I can only echo dear Alice: Stuff and nonsense!

Posted by Beldar at 02:18 PM in Law (2006 & earlier), Mainstream Media | Permalink

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Comments

(1) Stephen M. St. Onge made the following comment | Mar 27, 2005 12:01:05 AM | Permalink

      Be careful what you wish for, you may get it.

      The MSM wanted an investigation, thinking it would embarass Pres. Bush.  Instead, they're the ones being embarassed, as they try to urge the investigation forward, while keeping the investigators from finding anything out.

      It's delicious.

      To be fair, I think the brief is trying to argue that before the investigation proceeds, someone should make sure that Valerie Plame was a covert agent whose identity was protected by the act in question.  If having X tell Robert Novack about Plame was not a crime, then the question of X's name is unimportant.

      But shouldn't the people who howled for an investigation in the first place have checked into that question themselves?  And aren't arguments that no crime was committed usually made at the trial?

      I'd like to see your comments on that, Beldar.

(2) Dan S made the following comment | Mar 27, 2005 7:45:38 AM | Permalink

Stephen,

I know you are saying that's the NYT position, not yours, but the problem is that we don't know what the investigation uncovered once it started. The crime they are now investigating may have something to do with release of classified information, or something else off point regarding Plame as a covert agent (as far as I can see, she was not).

The problem is the use of anonymous sources. Papers should stop doing that, it's lazy. If there's a story, once they have the anonymous tip they need to dig until they have on-the-record sources, otherwise it's no story.

(3) Charlie (Colorado) made the following comment | Mar 27, 2005 7:45:23 PM | Permalink

Beldar, don't be silly: that brief wasn't a waste of paper. Hell, the attorneys probably billed ten grand for it.

(4) Jonathan Sadow made the following comment | Mar 28, 2005 4:10:21 AM | Permalink

Beldar wrote

But even a pack of cards, even the Red Queen, knew that charges have to come before trial, verdict, or sentence, whatever the order of the last three.

Your point is valid, even if you've conflated your references. The "Queen" referred to in the quotation from Lewis Carroll's "Alice's Adventures in Wonderland" is the Queen of Hearts (hence the reference to "a pack of cards") who, although representing a red suit, is not the same as the Red Queen chess piece who is featured so prominently in the sequel "Through the Looking Glass (And What Alice Found There)".

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