Judith Miller case to be re-enacted in D.C. circuit court

Ariel B. Glickman | Reporter's Privilege | News | February 14, 2017

A court decision that resulted in an 85-day jail stay for reporter Judith Miller will be re-enacted and re-examined this afternoon by a number of prominent attorneys and judges.

The Historical Society of the District of Columbia Circuit will host the examination of the oral argument in In re Judith Miller, a 2004 reporter’s privilege case heard by the U.S. Court of Appeals for the D.C. Circuit. The event, which is part of the historical society’s annual program highlighting a significant issue before the D.C. Circuit, will take place from 4:30 p.m. – 6:00 p.m. in the Ceremonial Courtroom on the sixth floor of the E. Barrett Prettyman U.S. Courthouse.

In that case, Miller, who was then an investigative journalist for the New York Times, Matthew Cooper, who was then the White House correspondent for Time magazine, and Time, Inc. argued that their confidential sources were protected by a First Amendment and federal common law reporter’s privilege, and that they could not be compelled to divulge source identities, even in the midst of a grand jury investigation.

The controversy arose after a CIA agent’s identity was released to members of the news media in what was seen as an attempt to punish the author of a report on Iraq’s nuclear program. The agent, Valerie Plame, was the wife of a former ambassador, Joseph Wilson, who had been sent to Niger by the CIA to investigate rumors that Iraq was seeking to purchase uranium from Niger. Wilson had publicly stated in July 2003 that his report, which had concluded that such rumors were unfounded, had been ignored by the Bush White House as it sought a justification to go to war with Iraq. Soon after, unnamed administration officials told journalists that Plame was an “agency operative” on nuclear issues and had recommended that her husband be selected for the investigation.

A special prosecutor was appointed to conduct a grand jury investigation into whether federal laws were violated by the disclosure of Plame’s identity. Both Cooper and Miller were subpoenaed as part of the investigation and both initially refused to testify and provide any relevant documents. Cooper, who was first held in civil contempt, later complied after his source consented. Time Inc. eventually complied with the subpoena for information stored on its computer network. Miller was also held in contempt and eventually jailed for 85 days until she provided the name of her source, I. Lewis “Scooter” Libby, after he consented to the release.

Thirteen years later, Miller said in a phone interview that the current atmosphere warrants a re-examination of the case, but noted that things were not necessarily great under the Obama Administration either, with a search warrant having been issued for a Fox News reporter’s email and an attempt to force New York Times reporter Jim Risen to testify in another leaks case.

Judges David Sentelle and David Tatel, two of the three original judges from the 2005 panel, will be sitting this afternoon as judges for the event. In the original case, the two judges reached opposite conclusions on the existence of a federal common law privilege. Sentelle wrote the opinion for the court, which held that there was no constitutional privilege and that, regardless of whether there was a common law privilege, it had been overcome by the government. But he also wrote a concurring opinion, going beyond the court’s decision to find that there was no common law privilege. Tatel concurred in the judgment and wrote a concurring opinion saying he would have found that a common law privilege exists but that it was overcome in this case.

Laura R. Handman, a partner at Davis Wright Tremaine LLP and a Reporters Committee board member, will argue on behalf of the journalists in favor of a reporter’s privilege. The case is “of particular significance now,” she said. “It has remained significant in that the Obama Administration had the highest number of leak investigations of all administrations combined, but luckily, thanks in part to the Reporters Committee’s efforts, the Department of Justice has developed guidelines that make calling for reporters’ testimony and reporters’ emails to be produced just when it’s absolutely necessary.” However, she also said that the guidelines are only policy directives and thus not binding on this new administration, so their value “is particularly timely.” As Handman noted, the Reporters Committee coordinated a dialogue with the Justice Department on revising the guidelines.

Amy Jeffress, a partner at Arnold & Porter LLP, will argue for the United States. The advocates are to provide the best argument possible given the facts from 2004 but need not make the same or all of the points made that year, just as the judges are not tied to the same questions they posed during oral argument, said Stephen J. Pollak, President of the D.C. Historical Society, who is also of counsel at Goodwin Procter LLP. He hopes that people walk away with “a feeling for how justice is administered in these independent federal courts.”

Likewise, Handman said that the purpose of the re-enactment is different than that of a typical oral argument. She said the intent is to entertain and educate. There is a “need for a strong, vibrant Fourth Estate to pay attention to what government is up to,” she said. “And, the need for confidential sources to do that has never been greater.”

David Pozen, Professor of Law at Columbia Law School who has previously written on leaks, will set the stage for the event, providing context on the debate over the reporter’s privilege and its evolution. To him, this case is “among a set of cases in the early to mid-2000s that began to roll back some of the gains that media lawyers had made.” He hopes that people come away with “a richer appreciation for this moment in the mid-2000s when this case arose.” He, Handman, Jeffress, and James M. Cole, a partner at Sidley Austin LLP who, as former Deputy Attorney General, was instrumental in revising the DOJ guidelines in 2014 and 2015, will participate in a panel discussion after the re-enactment of the argument. The panel will be moderated by Stuart S. Taylor, Jr., an author, journalist, and lawyer who is also on the board of the Historical Society. The discussion will focus on the balance between First Amendment and common law protections for reporters’ sources on the one hand and the government’s national security interests on the other. Taylor noted the significance of this event given that there are “more cases where reporters are being subpoenaed and alleged leakers being prosecuted. The lay of the land as the Miller case shows is that it’s a huge uphill battle in the courts.”