Plame On

From Holden:

The full, seven-judge panel federal appeals court in Washington rejected an appeal today from Judith Miller and Matt Cooper in regards to their contempt citations in the Plame case. And, if you read to the end of the excerpt below, one judge provided some confirmation that Bob Novak spilled the beans.

Two reporters facing up to 18 months in jail for refusing to testify about their sources lost another round in the courts today. The reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, now have only one appeal left, to the United States Supreme Court.

But it is hardly certain that the justices will agree to hear the case or that the reporters will remain free even while that court considers how to proceed.


In his concurrence today, Judge Tatel, who also participated in the February decision, explained that the reporters have little to work with under existing law.

A 1972 decision of the United States Supreme Court, Branzburg v. Hayes, requires the reporters to testify, Judge Tatel wrote. In that case, a five-justice majority of the Supreme Court ruled that reporters have no First Amendment protection when grand juries seek the journalists’ sources. “Only the Supreme Court can limit or distinguish Branzburg,” Judge Tatel wrote today.

A second possible source for legal protection for reporters generally, the common law, was the subject of a three-way split in the February decision. But all three judges agreed that any protection that might exist was of no help to Ms. Miller and Mr. Cooper.

Nor did Judge Tatel offer any apologies today for the eight blank pages that were part of his concurrence in February, presumably setting out the factual reasons why the reporters’ testimony was needed. Lawyers involved in the case have speculated that the pages described Mr. Novak’s mysterious role in the matter.

“Telling one grand jury witness what another has said,” Judge Tatel wrote, explaining why secrecy was needed, “not only risks tainting the later testimony (not to mention enabling perjury or collusion), but may also embarrass or even endanger witnesses, as well as tarnish the reputations of suspects whom the grand jury ultimately declines to indict.”