Court rejects review of reporters' contempt citations

• The full federal appeals court in Washington, D.C., declined to review a panel’s decision upholding contempt citations against Judith Miller and Matt Cooper over administration leaks of a CIA operative’s name.

April 19, 2005 — The U.S. Court of Appeals in Washington, D.C., today turned away the request of two journalists to overturn a panel decision upholding contempt citations against them, leaving the Supreme Court as a last option before they are jailed for refusing to tell a special prosecutor who disclosed the name of CIA operative Valerie Plame.

Judith Miller of The New York Times and Matt Cooper of Time magazine can now only petition the U.S. Supreme Court to hear the case if they want to avoid going to jail on the civil contempt citation. Participants in the case have said recently that they would seek such review if the appeals decision was not in their favor. An emergency petition to stay the contempt order would be decided by Chief Justice William Rehnquist in his role as Circuit Justice for the D.C. Circuit.

The court did not explain its decision, but Judge David Tatel wrote a separate opinion explaining why he decided review was inappropriate. Tatel, one of the original three judges who heard the case in February, found that the case “presents no question of ‘exceptional importance'” justifying review. He added that the courts’ refusal to disclose evidence they examined themselves on how the special prosecutor showed the reporters’ testimony was necessary — the lower court refused to disclose such information, and the same information was redacted from the appellate panel’s decision — did not constitute a due process violation, and in fact, provided greater protection for journalists by allowing judges to ensure that prosecutors possessed sufficient evidence. Tatel also suggested that the reporters were “attempting to manufacture a circuit conflict” on the issue.

Tatel further said that the court could not reconsider the question of whether the First Amendment protects the reporters from being compelled to testify because of “factual similarities” between this case and Branzburg v. Hayes, in which the U.S. Supreme Court held in 1972 that reporter’s do not have a privilege protecting them from testifying before grand juries.

“Only the Supreme Court can limit or distinguish Branzburg on these facts,” Tatel wrote.

(In re Special Counsel Investigation; Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York City) — GL

Related stories:

• Federal appeals court upholds reporter subpoenas (02/15/2005)
• Appeals court hears case over sources in CIA operative disclosure (12/08/2004)
• Reporter ordered jailed, fined again in Plame investigation (10/14/2004)
• Reporter ordered to jail for refusing to disclose source (10/07/2004)

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