NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · July 3, 2007
Court unseals redacted portions of Miller opinion
July 3, 2007 · The federal appeals court in Washington, D.C., on Friday released parts of Judge David Tatel’s previously redacted concurring opinion in the court’s 2005 ruling ordering reporters Judith Miller and Matthew Cooper to testify before a grand jury.
The newly released portions of the opinion discuss testimony before the grand jury of former White House aide I. Lewis “Scooter” Libby, who was later convicted of perjury and obstruction of justice. These passages appear on pages 32-35 and 38-39 of the opinion.
A large portion of the new text discusses former Deputy Secretary of State Richard Armitage’s realization that he had “inadvertently” leaked the covert status of CIA agent Valerie Plame to the news media.
The court reasoned that “one can safely assume that the ‘cat is out of the bag’ when a grand jury witness — in this case Armitage — discusses his role on the CBS Evening News.”
The court released these parts of the opinion in response to petitions to unseal submitted by Wall Street Journal owner Dow Jones & Co. and The Associated Press. The companies argued that there was “an undeniable and overwhelming public interesting full public disclosure” of all of the redacted portions of the opinion.
The court said that even though “‘grand jury secrecy is not unyielding’ when there is no secrecy left to protect,” parts of the opinion would remain under seal in the interest of grand jury secrecy.
Substantial portions of the opinion remain redacted; page 35, 36 and 37 are still largely blank.
In February 2005, a three-judge panel of the Washington federal appeals court upheld subpoenas issued to Miller, formerly of The New York Times, and Cooper, then a reporter for Time. Tatel wrote a concurring opinion saying there was a common law privilege preventing reporters from testifying but saying Special Prosecutor Patrick Fitzgerald had overcome the qualified privilege.
Eight pages of his opinion were sealed because of concerns about grand jury secrecy and classified information. In February 2006, the appeals court, in response to a motion from Dow Jones, agreed to unseal portions of Tatel’s opinion and left the option for the media to again petition for the release of more of the opinion.
Libby was sentenced to two and a half years in prison, probation and a $250,000 fine. President Bush commuted Libby’s prison sentence Monday, and Libby will not serve any time behind bars.
(In re: Grand Jury Subpoena, Judith Miller, Media Counsel: Theodore Boutrous, Jr., Gibson, Dunn & Crutcher, LLP, Los Angeles) — ES