NEWS MEDIA UPDATE · D.C. CIRCUIT · Confidentiality/Privilege · Nov. 4, 2005
Dow Jones asks court to unseal redactions in CIA leak case
Nov. 4, 2005 · Dow Jones & Co. filed a motion late Wednesday asking the U.S. Court of Appeals in Washington, D.C., to unseal redacted portions of its February decision ordering Matt Cooper of Time magazine and Judith Miller of The New York Times to testify before a grand jury.
Dow Jones, which publishes The Wall Street Journal, seeks eight pages of Judge David S. Tatel’s decision which were redacted from the public because “they contained nonpublic grand jury information protected from disclosure,” according to the Dow Jones motion.
Tatel, joined by two other appeals court judges, refused Feb. 15 to quash the grand jury subpoenas issued to Cooper and Miller, ruling that the Justice Department’s guidelines for subpoenaing reporters had been overcome because Patrick Fitzgerald, the special prosecutor charged with investigating who leaked the identity of CIA agent Valerie Plame, had shown the information was critical and could not be obtained through any other sources.
The New York Times had previously argued, unsuccessfully, that the eight pages should be unveiled.
Dow Jones argues that the time has come to unseal the eight pages because Fitzgerald and the witnesses have made the information presented to the grand jury “widely known.”
“Due to the extensive public discussion of these facts, it appears the redacted portions of Judge Tatel’s opinion, or at a minimum certain parts of them . . . are no longer protected from disclosure,” the motion said.
According to Federal Rule of Criminal Procedure 6(e)(6), “orders relating to grand jury proceedings must be kept under seal ‘only to the extent and as long as necessary’ to prevent the unauthorized disclosure of grand jury matters.”
“Here, the unsealing of the redacted portions of Judge Tatel’s opinion will enable the public to scrutinize the basis for this Court’s ruling, and to understand why this Court concluded that any common law reporter’s privilege was overcome,” the motion stated.
A Friday editorial in the Wall Street Journal further explained why the eight pages of Tatel’s decision should be opened.
“Further prosecutors and judges trying to decide whether to throw a reporter in jail should be able to inspect the evidence in this case, which will be an influential precedent,” the editorial said.
(In re Grand Jury Subpoenas; Dow Jones Counsel: Stuart Karle, General Counsel for Wall Street Journal, New York, N.Y.) — CM