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Miers has appreciation of media legal issues; helped reporters fight subpoenas

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  1. Freedom of Information
The Reporters Committee for Freedom of the Press routinely prepares a summary of the First Amendment and media-related cases handled…

The Reporters Committee for Freedom of the Press routinely prepares a summary of the First Amendment and media-related cases handled by nominees to the U.S. Supreme Court. “Because White House Counsel Harriet Miers has not served on the bench or participated in significant appellate cases, her record on these issues is almost non-existent,” said Reporters Committee Executive Director Lucy A. Dalglish.

Miers may have a thin paper trail, but she has one media law credential that probably no other Supreme Court justice has: “She did do some defense work insofar as subpoenas served on reporters,” according to a spokesman for her former law firm.

While the fact remains that no substantive legal writings exist that would shed light on her commitment to the First Amendment or freedom of information (a thorough search of Westlaw in all federal and state courts covering Texas has turned up no relevant media cases she was involved in), interviews with those who know her and have worked with her indicate that she may have an appreciation of the legal issues facing the news media, and even a sympathy for the work of journalists.

John H. McElhaney, a partner at Miers’ former firm, Locke Liddell & Sapp LLP, said that Miers worked on some issues for The Dallas Morning News, which had a long relationship with the firm. According to McElhaney, in addition to the subpoenaed reporters, she also represented a sports columnist with the newspaper, although the details of that case and the subpoena contests — including the names of the reporters and whether she won or lost — were not available.

Ralph Langer, a former executive editor for the Morning News, recalled that Miers was a supervising attorney on Morning News matters in the early 1980s. Langer, who is now retired, did not personally work with Miers on the libel and freedom of information issues that the firm handled for the newspaper, instead working with other attorneys. “We didn’t have any cases where she was around the table helping us decide what course of action to take,” he said, but through her firm’s work, he said he is sure she has a commitment to First Amendment issues.

Morning News columnist James Ragland said Miers was extremely approachable and friendly to reporters when he covered her City Council term as a reporter from 1989 to 1991.

“She’d always respond and was very open to the press. She’d talk about almost any public policy issue. The only area she wouldn’t [speak of] was if it was in client-attorney privilege,” Ragland said. “She respected that relationship.”

To Ragland’s knowledge, Miers had never tried to deny media access to any meetings or public records, saying that she would even “go the extra yard” to make sure the media had sufficient background information on various issues she was involved in.

Only one incident involving access to government proceedings came to light during a search of Miers’ background. While serving on the Texas Lottery Board Commission in 1997, Miers voted to fire a lottery agent in what the agent alleged was a secret meeting. The agent sued for a violation of the state’s open meetings statute and the case settled without a financial settlement, The New York Times reported. The fired agent was later awarded $750,000 in a suit against the lottery’s operator, Gtech, but it remains unclear whether the later suit was related to an open meetings violation.

Miers legal interactions with the news media extend beyond Texas, to her work with the American Bar Association and its publications.

“I don’t think journalists have anything to fear from her,” said Gary Hengstler, who worked closely with Miers for nine years when she was on the Board of Editors of the ABA Journal and he was editor and publisher of the monthly magazine.

During her nine-year tenure on the board — three as chairwoman — she never exerted editorial control, Hengstler said. Miers steadfastly stood by Hengstler and his staff after a December 1990 Journal cover story criticized the U.S. government’s case in the first Bush administration against Colombian cocaine trafficker Jose Rafael Abello-Silva, who was convicted on conspiracy drug charges, sentenced to two concurrent 30-year terms in prison and fined $5 million.

After the Journal published the article alleging a government conspiracy against Abello-Silva, Justice Department officials and many members of the association complained. The Journal issued a correction and clarification on some minor issues in the story, Hengstler said, but Miers weathered the flak, insisting the Journal must be journalistically independent from the association, he said.

Miers also supported a controversial cover story asking “Is the ABA too Political?” Hengstler said.

“She took a lot of heat for the kinds of stories we were doing,” he said. “She never once said ‘Change this’ or ‘Don’t write that.'”

Miers’ experience serving in a variety of official positions has given her opportunities for interaction with the media such that she “gets” issues facing journalists and “understands them the way journalists and those in the media see them,” said Paul Watler, an attorney with Jenkins & Gilchrist who had previously worked with Miers at Locke Liddell when it represented the Morning News. “She certainly has an appreciation for the news media. I don’t think she goes out of her way to make herself a friend to reporters, she’s probably more formal and by the book. I think she will approach issues in the First Amendment area in a fair and balanced way.”

In addition to professional interaction, both Langer and Watler have become personally acquainted with Miers over the years. Watler cited her lack of judicial experience as a reason that she will be “a bit of an unknown quantity as a Supreme Court justice,” but added that his sense is that she follows the rules: “I anticipate her to call them like she sees them.” Langer noted Miers’ reputation as being non-partisan while on the Dallas City Council. “She tried to be a problem solver, not an idealogue.”

Robert Latham, a media attorney with Jackson Walker LLP in Dallas, said that Miers was “extremely well regarded” in Texas legal circles, but that there was not much information indicating her positions on First Amendment or freedom of information issues. He added that he was sure she would approach such issues “with a certain degree of knowledge and an appropriate degree of sensitivity.”

Miers also was given the Anti-Defamation League’s Jurisprudence Award in 1996. An ADL spokesperson said that the award was given for her work generally, not for any particular actions or cases she litigated.

The paper trail regarding her record during her years at the White House will remain particularly thin. At a Rose Garden press conference the day after her nomination, President Bush said White House communications are covered by executive privilege, and he will not release records regarding Miers’ years of service there. He adopted the same policy when Chief Justice John Roberts was nominated.