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Protecting Sources

August 11, 2004 at 12:00 AM EDT


TERENCE SMITH: The investigation of the alleged leak of the identity of Valerie Plame, an undercover CIA operative, is reaching deeper into the Washington Press Corps. Plame is the wife of former Ambassador Joseph Wilson, who was sent by the CIA In 2002 to investigate intelligence claims that Iraq had sought to buy nuclear material from the West African nation of Niger. He found the reports groundless, and advised the CIA.

Despite Wilson’s warning, the president pointed to the alleged uranium purchase in last year’s state of the union address as evidence that Iraq sought banned weapons. Wilson went public with his protest in a July 6, 2003, op-ed in the New York Times.

Eight days later, syndicated columnist Robert Novak exposed Plame as a CIA operative and cited two “senior administration officials” who said Plame recommended her husband for the Niger mission. Wilson alleges that the White House revealed his wife’s name in an effort to intimidate him and others who disagree with White House policy.

Special prosecutor Patrick Fitzgerald, the U.S. Attorney in Chicago, has been investigating Plame’s exposure. The president and the secretary of state, among many senior administration officials, have been questioned.

This week, Time magazine reporter Matthew Cooper was held in contempt by a federal judge for refusing to appear before the grand jury impaneled by Fitzgerald. Cooper faces the possibility of jail time, and the magazine, a $1,000-per-day fine. The contempt citation is stayed on appeal.

Tim Russert of NBC News was subpoenaed along with Cooper in May. Russert reached a compromise by agreeing to answer limited questioning from prosecutors this past weekend. NBC News said Russert did so without betraying any pledges of confidentiality. Veteran Washington Post national security reporter Walter Pincus has also been subpoenaed in the probe. The Post is fighting the action. Another Post reporter, Glenn Kessler, agreed to answer limited questions earlier this summer. Robert Novak has not indicated whether or not he has been subpoenaed.

TERENCE SMITH: Joining me to discuss this case are Joseph diGenova, a former U.S. Attorney during the Reagan administration, and an independent counsel in the early 1990s; and Floyd Abrams, a First Amendment attorney who is currently representing Matthew Cooper and Time Magazine in the Plame investigation. Welcome to you both.

The heart of this matter is the so-called reporter’s privilege on one side versus the prosecutor’s obligation to prosecute a possible crime. Floyd Abrams, why is your client Matt Cooper, declining to go before the grand jury?

FLOYD ABRAMS: Well, let me say first he didn’t decline to go before the grand jury. He declined to answer questions about confidential sources that he had promised that he would not disclose. And the reason that he would not do that is that it would be really impossible for him and impossible for other journalists around the country to gather news, particularly about the government, particularly about the government in Washington, but elsewhere in the country, too, if you once have to give up the opportunity to get information from people who won’t give it to you unless you promise to protect them.

That’s the way Washington works. A lot of people in the government are unwilling to speak except on the promise of confidentiality. And so Matt Cooper could not, consistent with his promises and consistent with journalistic ethics, provide that information

TERENCE SMITH: So you’re suggesting he might go before the grand jury but not disclose confidential sources, is that correct?

FLOYD ABRAMS: Basically we agreed with the special counsel that there was no need for him to go in front of the grand jury since he had agreed to answer all questions about non-confidential matters, but he would not answer questions about confidential matters.

And I spoke to Mr. Fitzgerald, the special counsel, and we agreed that in that case, there was really no reason to bring him in to appear in front of the grand jury because Mr. Fitzgerald didn’t want to ask him questions or limit his questions to matters which were not confidential. So in order to protect the confidential material, we really had to take the position that he wouldn’t answer those questions.

TERENCE SMITH: Joseph diGenova, is it legitimate for a federal prosecutor to subpoena a reporter in a case like this?

JOSEPH diGENOVA: Absolutely. The law is very clear that reporters do not have an absolute or even a qualified privilege to resist grand jury subpoenas in criminal investigations.

The Branford case in 1972 of the United States Supreme Court held that journalists must appear and must testify in grand juries when subpoenaed and that there is no abridgment of the First Amendment in either freedom of speech or news gathering by requiring them to do so.

By the way, if I were a reporter I would want Mr. Abrams to be the one representing me because he is not only a great lawyer but he’s a gentleman. And I think courts will listen to him in his arguments with great interest. But it is clear that a prosecutor who is doing his or her duty must subpoena reporters if that is the only other source of the information available to them.

TERENCE SMITH: Although there are some Justice Department guidelines, are there not, –


TERENCE SMITH: — as to when he should do that and what he should do first?

JOSEPH diGENOVA: Yes. Absolutely. The Justice Department, of course like anybody else in Washington, is not interested in a big fight with people who have lots of ink and lots of paper: newspapers, networks, et cetera. And so they have set up a series of guidelines to inform prosecutors all over the United States that before they subpoena a reporter, they must exhaust all other avenues to obtain the information.

There must be reasonable grounds to believe that a crime has actually been committed. They shouldn’t be using the grand jury as a fishing expedition to find out things from reporters and that they have to go through those hoops and then get the permission from the attorney general before they can actually issue the subpoena. So the Department is aware of that and tries to balance some of those interests.

In this case, apparently, based on published reports, those avenues have been exhausted and Mr. Fitzgerald had no other choice but to issue these subpoenas.

TERENCE SMITH: If it’s true, Floyd Abrams, that there is no protection in a federal case, criminal case before a grand jury, what is the basis of your appeal?

FLOYD ABRAMS: Well, if it’s true, then there’s no basis. The question is: is it true? Our position in court is that it is by no means clear that there is no protection for the press at all and for journalists at all with respect to their confidential sources; that case that was correctly referred to is one in which it was a five to four decision with the fifth vote, Justice Powell, writing a separate opinion which many judges in many cases around the country have concluded does provide some significant protection for the press, and indeed that the protection is pretty much the same sort of thing that the attorney general’s guidelines do; that is to say, you can’t go to the press unless you absolutely need the information and you can’t get it any place elsewhere. One of the problems here….

TERENCE SMITH: Do you know that to be the case, Floyd Abrams?

FLOYD ABRAMS: I don’t know it to be the case because I haven’t been able to see any of the materials submitted by Mr. Fitzgerald to the court. Everything is secret; everything is submitted without letting me see it because it is grand jury material. There is no reference in court at all in any of the hearings to whatever it is that leads special counsel to argue that he really needs the information or that he has exhausted all other sources.

So all we can do is to argue in court, please, Judge, either (a): Let me see the materials and then argue on the basis of it, or at least you please read it and read it keeping in mind that it’s only when it’s really necessary and only when you can’t get the information anywhere else that you should enter an order like this. And I hope on appeal, that we might have a more successful effort in persuading the court of appeals that on one or the other of those grounds that we really ought to prevail.

TERENCE SMITH: All right. Let me ask you both, beginning with you, Joe diGenova, why doesn’t a prosecutor in a case like this go directly to the source? The person who wrote the article, Robert Novak, the columnist, subpoena him and ask him who his sources are? Obviously he knows.

JOSEPH diGENOVA: Well, because prosecutors are worried that if they go directly to somebody like that right out of the bat, they’re going to run afoul of those guidelines, which we talked about, the Department of Justice guidelines, and they want to exhaust all other avenues before they get to the person who actually published the information and has that information because if they go to surrounding reporters or other sources of information who were not involved in publication and don’t have confidential relationships, they may be able to develop enough information that they can find out who the source is, confront that source directly without having to go to Mr. Novak and then raise this huge issue of forcing a reporter to reveal the confidential source. So the last person they want to go to, to avoid a constitutional conflict is Mr. Novak.

TERENCE SMITH: Do you see it that way as well, Floyd Abrams?

FLOYD ABRAMS: Well, I don’t view Mr. Novak in this respect different than other journalists. My client, after all, Matt Cooper wrote an article. The article was based in part on confidential information provided to him by confidential sources. He may be an extra in this play as seen through the eyes of people focusing on Mr. Novak, but he has his own sources.

And so, so far as he’s concerned, so far as Time is concerned, so far as other publications are concerned, to go to them to ease the burden of going to Mr. Novak is not exactly a great First Amendment triumph.

JOSEPH diGENOVA: I don’t disagree with Mr. Abrams about that. I think he is absolutely right. If you are the person being subpoenaed, believe me, you do not think that this is a lesser alternative in these things.

But nonetheless, if you’re the prosecutor and you’re looking at the Novak leak as the key leak, the naming of the agent, and allegedly theoretically a crime being committed by the person who leaked it to him, although it’s not clear that a crime was committed by anyone who did that, then you want to wait. You want to take your time before you close that loop because you may not have to ask Mr. Novak that question. You may be able to find it out other ways.

TERENCE SMITH: But quickly, what is the higher obligation of the journalist here? Is it to be first a citizen who comes forward to assist a prosecution of a possible crime, or is it he or she who protects his or her sources?

JOSEPH diGENOVA: Well, as a prosecutor, I would say that the journalist’s greater duty is to respond to the grand jury subpoena. But I must say I understand the position of the journalists here. And as someone who has worked with journalists over the years and talked to them and given them information, I certainly am not going to talk to journalists who aren’t going to go to jail for me. I’ll tell you that right now.

FLOYD ABRAMS: But the problem with a rule of law that requires journalists to go to jail is that it’s a bizarre and self-defeating rule. If journalists have to choose between either not promising confidentiality and therefore missing out on you, or going to jail, you know, I mean a few of them would go to jail for you but not everyone. And then the public will lose the benefit of all of your wisdom.

JOSEPH diGENOVA: Absolutely. Absolutely.

TERENCE SMITH: Okay, Floyd Abrams, Joseph diGenova, thank you both very much.