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Tuesday, July 05, 2005

Judy to judge: "Okay, maybe you can ground me, BUT ..."

Some conventional wisdom among lawyers:

  • Tread lightly when appearing again before a trial judge whose previous orders you've tried to appeal all the way to the Supreme Court.
  • After nearly a year of outright defiance of that trial judge's orders, you're poorly positioned to plead for special favors.
  • It's difficult to predict what particular arguments are likely to be most effective in persuading a federal district judge to a particular point of view, but it's easier — and always worth the effort — to try to spot and excise particular arguments that are likely to be not only ineffective but offensive.

But comes now scofflaw Judith Miller, whose supportive employer, the New York Times, writes this about her continued eagerness to defy both conventional wisdom and the combined federal trial and appellate courts:

[R]eporters [Judith Miler and Matt Cooper], who have consistently refused to testify about conversations with their sources, filed papers on Friday suggesting that they be sentenced to home confinement if incarceration is required. In the alternative, Ms. Miller asked to be sent to a federal prison camp in Danbury, Conn., and Mr. Cooper to one in Cumberland, Md.

Beldar's loose translation of Ms. Miller's plea into lay terms familiar to every parent:

Okay, so maybe I can be grounded. But I just do not understand why you can't get it through your pointy little judicial noggin that I am from the New York Times! And I don't know who you think you are, but if you're even thinking about orange jumpsuits and ankle manacles and a toilet in the same room in my suite that my bed is in — well, I have two words for you, buster: "No way!"

This leaves me thinking that Judge Thomas F. Hogan's ruling at tomorrow's hearing in this matter should consist of a combination of two words — "Yes, way!" — followed by a judicial index finger pointing first at the U.S. Marshals and then at Ms. Miller, followed by a judicial thumb gesturing back over his shoulder to the closest holding cell in the federal courthouse.

Special prosecutor Patrick J. Fitzgerald had a similar reaction to mine, but was much more wryly polite and less snarky:

Mr. Fitzgerald opposed those requests today, saying that the local jail in the District of Columbia "or some other nearby federal facility" would be more appropriate....

Mr. Fitzgerald, whose public filings to date have been restrained, was harshly critical of the legal position taken by Ms. Miller and of The New York Times's statements in support of her. His response to Mr. Cooper was barely 4 pages; to Ms. Miller, 21 pages....

... "Forced vacation at a comfortable home is not a compelling form of coercion," [Mr. Fitzgerald] wrote.

To which, Beldar replies with that hoary Latin legal phrase: "Bingo."

Posted by Beldar at 07:25 PM in Law (2006 & earlier) | Permalink

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» How's this for an argument? from Media Lies

Tracked on Jul 5, 2005 11:34:32 PM

Comments

(1) Xrlq made the following comment | Jul 5, 2005 8:15:22 PM | Permalink

This leaves me thinking that Judge Thomas F. Hogan's ruling at tomorrow's hearing in this matter should consist of a combination of two words — "Yes, way!"

I vote for just one word, a la Wayne's World: "Way!"

(2) The Drill SGT made the following comment | Jul 5, 2005 8:25:38 PM | Permalink

LOL Beldar,

I'm not a lawyer, but am married to one. However, your rules seem to align well with my experience in the Federal acquisition / contracting arena. We say, you can win one fight with a contracting officer, but don't ever expect to win another. As in the law, there is too much discretion in the decisions of Judges or contracting officers to want one mad at you when they rule on your case.

(3) Jim Rhoads (vnjagvet) made the following comment | Jul 5, 2005 8:47:03 PM | Permalink

I hope Ms. Miller's attorney has advised her to bring a toothbrush and some "personal items". My experience tells me she's gonna need them.

What gets me is that the NYT is still coyly speculating in its "news" pages who might be Ms. Miller's source. I suspect someone at the Times knows precisely who it is that she is protecting. Titilating speculation on the Front Page to garner audience seems particularly cynical. It also seems to be unduly challenging to the power of a Federal Judge. My experience has been that such challenges generally are not met with leniency.

I think Judge Hogan is likely to react as most members of the Federal Judiciary do when trifled with by "big shots".

(4) Boger made the following comment | Jul 5, 2005 9:25:27 PM | Permalink

Re VNJAGVET: oooooooooh.

The ostensible syllogism that Rove is Novak's source, that Rove green-lighted Novak and Novak is on the legal sidelines, that Rove is also Cooper's and Miller's source, that Cooper (Time Mag) has turned over all his notes, email, etc. which reveal Rove as his source, but the prosecutor remains at "general quarters" in front of the Court, well lets just say, this isn't the way syllogisms are suppose to operate.

This taxpayer is cranking up the popcorn machine. Let the chips fall where they may, but let them fall quickly and unambiguously.

(5) James B. Shearer made the following comment | Jul 5, 2005 9:42:03 PM | Permalink

Is there some reason judges don't impose fines in cases like this? I would think a fine of $10000 a day for the reporter and $1000000 a day for the newspaper would be more effective than sending the reporter to jail.

(6) Jim Rhoads (vnjagvet) made the following comment | Jul 5, 2005 9:49:50 PM | Permalink

James:

I believe Judge Hogan has already imposed a perdiem monetary penalty on the reporters and their employers. Time, Inc. is the only entity that has complied.

(7) Beldar made the following comment | Jul 5, 2005 10:27:16 PM | Permalink

Judge Hogan has indeed already decreed fines against the contempt respondents, which are Time Inc., Matt Cooper, and Judith Miller. But they were suspended pending the respondents' appeals.

The NYT's position was that it did not have in its actual or constructive possession any documents responsive to the grand jury's subpoena. Presumably it structures its employment relationships with its reporters like Ms. Miller so that it has expressly forfeited the power an employer might otherwise claim to have access to or control over their notes — probably so that it can truthfully so answer such subpoenas. In any event, the NYT's response presumably satisfied the special prosecutor, and the NYT, as an organization, wasn't the subject of any civil contempt order or finding.

Time's editor in chief Norman Pearlstine insisted that the threat of a $1000/day fine against it "had nothing to do with" Time Inc.'s decision, after the Supreme Court denied certiorari, to turn over "internal company documents that Time Inc. considered its property rather than [Cooper's]," and I actually tend to believe that's true. To reach the point at which Time-Warner's upstream directors could overrule the subsidiary's management on this point to prevent "waste of corporate assets," the combined and accrued fines and expenses would probably need to be substantially larger.

I'm guessing, but am nonetheless reasonably confident, that Time Inc. has covered or will cover any fines permanently assessed against either it or Cooper, and that the NYT will do the same for fines assessed against Miller, and that both organizations have also covered the substantial legal fees and expenses of the two reporters.

It's a shame that NYT chairman Arthur Sulzberger, Jr. can't also take Judith Miller's place in jail, or at least join her there. He appears to share her delusions, and probably would willingly (and foolishly) do so.

(8) Al made the following comment | Jul 5, 2005 11:24:11 PM | Permalink

It would be poetic (if implausible) for her to spend a week incarcerated at Guantanamo.

(9) James B. Shearer made the following comment | Jul 6, 2005 10:16:38 AM | Permalink

Could the judge order the NYT to order its reporter to comply or be fired? Could the judge forbid the NYT from covering the reporter's fines?

(10) MeTooThen made the following comment | Jul 6, 2005 10:17:27 AM | Permalink

Al,

Camp X-ray?

Well, I hear the food is good and the weather can't be beat!

(11) craig mclaughlin made the following comment | Jul 6, 2005 10:55:39 AM | Permalink

I can't really gloat over the prospect of Judy and Matt going to jail because the Grand jury only meets until October, I believe. So by appealing the contempt order they've cut their potential jail time from 15 months to 3. Not bad for a losing dog of a case.

(12) Beldar made the following comment | Jul 6, 2005 1:41:14 PM | Permalink

Mr. McLaughlin, a new grand jury will be empaneled as soon as the existing one's term expires, and the special prosecutor can be expected to re-issue the subpoenas immediately; those refusing to comply could be (re-)jailed for civil contempt almost immediately.

Mr. Shearer, without having done any research at all on this, my guess is that the judge could order Ms. Miller not to accept reimbursement, but could not order the NYT to fire her. I strongly suspect that the specifics of the penalties imposed would be reviewed by the D.C. Circuit under an "abuse of discretion" standard, and that the D.C. Circuit wouldn't find the former to be such an abuse, but would so find the latter (which might indeed have First Amendment implications).

(13) Jim Rhoads (vnjagvet) made the following comment | Jul 6, 2005 3:41:00 PM | Permalink

Looks like the Judge was not amused by the NYT gang. To Jail she goes.

(14) Boger made the following comment | Jul 6, 2005 6:41:27 PM | Permalink

This is getting to be quite the passion play. O'Donnell outs Rove as Cooper's source, and Newsweek backs him up. Rove's lawyer says that Rove released Novak from any sort of anonymity pledge and has testified truthfully before the grand jury. Indeed, Novak has provided information to the prosecutor (or grand jury?). Now Cooper has been released from his anonymity pledge by an unidentified source and he will be back in front of the grand jury. Meanwhile, Miller has not been released from her anonymity pledge by her source or sources, refuses to respect the laws of our country and will be in the slam. (Of course when she finally gets out she will be the toast of town, will hit all the talk shows, ink her book deal, go in the history books, etc etc)

One can theorize that Rove is THE "source" and to protect himself can only be selective on which journalists he releases from their promise. But it is a major stretch, in my opinion. Meanwhile, back at the ranch: Novak, who started this fracas, has no worries and promises to "reveal all" when the big kahuna source is finally identified. I am starting to form the opinion that when this is all said and done we are going to be left with another text book case of MSM journalism run amuck--ala Rathergate. And these folks want a federal shield law?

So, Mr. Rhoads, I am all eyes: Can you elaborate on your, "the NYT is still coyly speculating in its "news" pages who might be Ms. Miller's source"?

(15) Boger made the following comment | Jul 6, 2005 9:12:20 PM | Permalink

Since last post I have watched the evening news (News Hour), which basically led with the Miller story. Turns out that Miller in fact has received a release from her source (in the same fashion, if not the same person-not known- as Cooper). Turns out that prosecutor Fitzgerald knows who the source is and also knows that Miller has been released by that source. One of the opinions articulated was that prosecutor Fitzgerald is pursuing the original crime, unauthorized disclosure of a covert agent, not a perjury or obstruction charge.

In any case, it seems Ms. Miller despite the release from her source and despite the law and absolutely full due process that she has received, still feels that she knows best, that her source is not acting 'freely' and that she needs to be the Joan of Arc of Journalistic Rights, etc. Leave it to the New York Times, as they have in the past, to hire such unprofessional, ridiculous, grandstanding people.

(16) Jim Rhoads (vnjagvet) made the following comment | Jul 6, 2005 9:50:49 PM | Permalink

Boger:

See, e.g. today's story on the Times website which contains the following:

"Mr. Cooper's decision to drop his refusal to testify followed discussions on Wednesday morning among lawyers representing Mr. Cooper and Karl Rove, the senior White House political adviser, according to a person who has been officially briefed on the case. Mr. Fitzgerald was also involved in the discussions, the person said.

In his statement in court, Mr. Cooper did not name Mr. Rove as the source about whom he would now testify, but the person who was briefed on the case said that he was referring to Mr. Rove and that Mr. Cooper's decision came after behind-the-scenes maneuvering by his lawyers and others in the case.

Those discussions centered on whether a legal release signed by Mr. Rove last year was meant to apply specifically to Mr. Cooper, who by its terms would be released from any pledge of confidentiality he had made to Mr. Rove, the person said. Mr. Cooper said in court that he had agreed to testify only after he had received an explicit waiver from his source.

Richard A. Sauber, a lawyer for Mr. Cooper, said he would not discuss whether Mr. Cooper was referring to Mr. Rove nor would they comment on discussions leading up to Mr. Cooper's decision. Mr. Fitzgerald's policy is to refuse to respond to inquiries about the case.

Mr. Rove declined to comment on Wednesday.

In recent days, a lawyer for Mr. Rove has said that Mr. Cooper and Mr. Rove had a conversation not long before the name of the operative first became public. News articles referred to the operative by her maiden name, Valerie Plame, although she now goes by her married name, Valerie Wilson.

Mr. Cooper's involvement in the matter dates back two years, when he and two other reporters wrote an article for Time.com.

The article said "some administration officials" had told Time and the syndicated columnist Robert Novak that "Valerie Plame is a C.I.A. official who monitors the proliferation of weapons of mass destruction."

The article also noted that she is the wife of Joseph C. Wilson IV, a former diplomat who had recently written an opinion article in The New York Times questioning one of the rationales, concerning Iraq's weapons program, offered by the Bush administration for the Iraq war. Mr. Wilson based his criticism on a trip he had taken to Niger for the C.I.A.

On July 14, 2003, Mr. Novak wrote: "Valerie Plame is an agency operative on weapons of mass destruction. Two senior administration officials told me his wife suggested sending Wilson to Niger."

The Time article, published three days after Mr. Novak's column, suggested that the officials had "declared war" on Mr. Wilson and had released the information about his wife as a form of payback or in an effort to undermine the seriousness of his criticism.

Mr. Sauber said Mr. Cooper's agreement to testify was limited to a single conversation with a single source.

Reporters from The Washington Post and NBC testified after similar releases. Mr. Novak has refused on numerous occasions to discuss whether he provided information to Mr. Fitzgerald.

In her statement in court, Ms. Miller said she had received no similar permission from her sources......"

(17) Boger made the following comment | Jul 7, 2005 12:35:17 AM | Permalink

Mr. Rhoads,

Thank you, that was very helpful. Given what Miller's employer wrote today, it seems even more mystifying that Miller is embarked on this course. Why don't the NYT lawyers (it is my understanding that the NYT has been footing her legal bills) meet with Rove's lawyers, as Cooper's have, and get the same specific release that satisfied Cooper? Instead on the NewsHour they were championing her cause?

Still a pretty bizarre situation. It will be interesting to see if and when it makes sense.

(18) Kent made the following comment | Jul 7, 2005 9:55:13 AM | Permalink

a judicial index finger

I can think of a better choice of finger. But I suppose that would be incompatible with the dignity of the Court.

(19) Patrick R. Sullivan made the following comment | Jul 7, 2005 3:33:34 PM | Permalink

'O'Donnell outs Rove as Cooper's source, and Newsweek backs him up.'

No they didn't, just the opposite.

As to Miller's decision not to testify, it only makes sense as a professional choice.

She thinks either that no one will talk to her in the future if she gives up a source, or that it bolsters her credibility with any future sources (i.e. you can trust me to keep your name out of it, but not that wimp Matt Cooper).

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