NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · June 29, 2005
Journalists to be jailed next week, judge warns
June 29, 2005 · Saying “there are no other avenues left,” U.S. District Judge Thomas Hogan on Wednesday told The New York Times’ Judith Miller and Time’s Matthew Cooper that they should be prepared to go to jail next Wednesday if they do not reveal their confidential sources to a grand jury investigating the leak of a CIA operative’s identity.
In addition, Time magazine will be fined until it agrees to turn over subpoenaed materials. But Time attorneys indicated during the hearing that the giant multimedia company may be considering complying with the demand in some way, possibly by turning over Cooper’s notes, which the magazine currently controls. Hogan indicated that the fine will be substantial enough to induce a company as large as Time Warner to comply with the order.
Miller and Cooper, through their lawyers, told Hogan they are prepared to go to jail rather than obey the order to reveal their confidential sources. If they continue to refuse to testify, they could end up in jail for as long as four months, until the term of the grand jury expires in late October, although they could then be jailed again once a new grand jury is empaneled.
Patrick Fitzgerald, the special prosecutor investigating the disclosure of Valerie Plame’s identity, said in court today that he saw no reason why the court’s order should not be enforced immediately, following the refusal Monday of the U.S. Supreme Court to hear the case.
“The court’s authority should be respected,” Fitzgerald said during Wednesday’s 30-minute hearing before a packed courtroom. “Comply with the order — it’s your legal and moral obligation.”
Fitzgerald emphasized that a publicly traded company like Time Warner cannot possibly have its board of directors meet and choose to violate a court order. Cooper appeared in court with his own personal lawyer, Richard Sauber, and said after the hearing that Time will decide on its own whether to turn over the materials it controls, although he hopes that it does not.
Attorney Theodore Boutrous argued that Time wanted more time to argue that the subpoenas may no longer be relevant due to changed circumstances in the case, and asked for “one last chance to fill out the record on the privilege issue.” But Fitzgerald countered that the circumstances had not changed, and Hogan denied the request, expressing skepticism that the magazine needed more time to consider an issue that has been going through the appellate courts for nine months.
Hogan, who twice quoted Lewis Carroll in saying that “the time has come” to comply and that the media’s arguments were “curiouser and curiouser,” gave Miller and Cooper until the end of the day Friday to file any necessary documents related to their incarceration, including any medical considerations that should be taken into account. The government has until noon Tuesday to reply to those filings, and a final hearing will be held Wednesday afternoon.
(In re Special Counsel Investigation; Media Counsel: Floyd Abrams, New York City, Robert Bennett, Washington, D.C., for Judith Miller; Theodore Boutrous, Washington, D.C., for Time magazine; Richard Sauber, Washington, D.C., for Matt Cooper) — GL