Recent Court Decisions on Reporters’ Privilege and News on Former Talon Reporter

JIM LEHRER:

Finally tonight, a media watch with Terence Smith. The purpose is to update running stories concerning the media.

Terry, first today there was a court decision in New York involving two New York Times reporters. What was it about and what was the decision?

TERENCE SMITH:

In this case, the special prosecutor, Patrick Fitzgerald, is seeking the telephone logs of two reporters from the New York Times, Judith Miller and Philip Shenon, in an investigation he's conducting into some Islamic charities. He wanted those records, he wanted to get them from the phone company.

The court said today, 'No, you can't; they are protected by the first amendment and by federal common law.'

So that is a victory for some rather besieged reporters these days. And I spoke today both with Judith Miller, the defendant, and she was pleased, of course, and her attorney, Floyd Abrams, who says that he thinks this may give them some ammunition in their other case before the federal court.

JIM LEHRER:

Now, that other case is the big case. That's the Valerie Plame case, where Valerie Plame — being a CIA operative — was outed in a column by Robert Novak.

Bring us up to date on that and fit this in.

TERENCE SMITH:

Correct. In this case, both Judith Miller and Matthew Cooper of Time magazine face up to 18 months in jail for contempt of court for refusing to disclose their confidential sources with whom they spoke on this very case.

Earlier this month, the federal court, the appeals court here in Washington ruled against them, said they must disclose them in a case that is a criminal case involving a grand jury. And therefore, the pressure is on them to do that. The papers and the magazine are appealing that decision.

But a lot of our viewers have asked, and a lot of people have asked, well, why is it — since it was originally published in a column by Robert Novak, why is he not being called onto the carpet and pressed?

JIM LEHRER:

Now there's some new stuff on that, is there not, or at least around the edges?

TERENCE SMITH:

There appears to be. For the record, neither Robert Novak, the columnist, or Patrick Fitzgerald, the prosecutor, has said whether he has come in and testified as to his source. Neither one will talk about it.

JIM LEHRER:

And he is not, of course — it's important to make the point here: He has not been cited for contempt or in any — no action has been taken against him in any way whatsoever; don't even know whether or not he has, in fact, testified. But the new development —

TERENCE SMITH:

But the new development is that it has been reported that he has testified, at least gone in and talked with a prosecutor– that his source has been identified.

JIM LEHRER:

That he named the source?

TERENCE SMITH:

That is the report.

And that columnist Novak, who won't confirm this publicly, has suggested moreover that his source did not knowingly disclose her identity in the sense that he did not know — and the law requires this — when he told Novak of her covert assignment, whether or not she had operated undercover abroad within the last five years. That's what the law says you have to do, and you have to know that, for this to become a crime.

It's possible therefore that a crime was not committed here.

However, the special prosecutor is pressing other reporters, i.e., Miller and Cooper, apparently in an effort to see if he can establish a pattern among officials — an official or officials — of leaking this sort of sensitive information. If he could, conceivably that's a crime.

JIM LEHRER:

If he can't establish that the leaker knew that Valerie Plame was an undercover operative, he doesn't have a crime, is that right?

TERENCE SMITH:

That is correct, and moreover that she had operated in that capacity abroad within the last five years.

JIM LEHRER:

All right. Now, the appeals of the two reporters, Matt Cooper and Judy Miller, where do they stand now? They're not in jail now. They're awaiting — they're awaiting this appeal to be resolved. Where does that stand?

TERENCE SMITH:

Correct. That appeal, which will be to an eight-judge, full bank appeals court here in Washington, will be filed by the two reporters or their companies on March 21.

JIM LEHRER:

So we're still weeks or maybe months away from having this thing resolved. Now, the other running story is this reporter who got White House credentials, a man with two names and an interesting story. Tell us about that and where it stands

TERENCE SMITH:

Okay. The two names are — the man's name is James Guckert. His pseudonym under which he writes is Jeff Gannon.

He got credentials, a day pass to the White House press room, most days for the last two years, using his own name. But he went in and he was — became a familiar face in the White House press room.

He had opportunities to question Scott McClellan, the spokesman, and on occasion the president himself. And he became —

JIM LEHRER:

Actually, at the last big news conference, he was called on.

TERENCE SMITH:

That's right. And that was an example where he became sort of famous for asking rather softball questions of the president, which the president proceeds to hit out of the park.

JIM LEHRER:

That's what brought attention to this guy, right?

TERENCE SMITH:

It did. People looked into it and they found that, in fact, he was only accredited to a Republican-affiliated Web site, not what you would consider a mainstream news organization.

He, exposed by this, along with some seamier details of his background involving apparently his offering himself as an escort on a gay Web site —

JIM LEHRER:

That's not directly related to this issue of how he got White House accreditation.

TERENCE SMITH:

That's the issue.

JIM LEHRER:

And where does that stand? What does Scott McClellan, what does the White House say about that that?

TERENCE SMITH:

Well, I spoke today with Ron Hutchinson, who is the head of the White House Correspondents Association, and learned that he has met with Scott McClellan, and they've gone over the guidelines.

Well, it turns out the guidelines, which Scott McClellan makes a point of saying they inherited from the Clinton administration, are very vague.

They really say, if you can present yourself as a bona fide reporter from a news organization based here in Washington, you're in. You can get a day pass as opposed to a permanent pass, which actually involves a very substantial security examination, sometimes takes a couple months to get it.

JIM LEHRER:

McClellan has said — correct me if I'm wrong on this — that it's not the White House's job to decide who is a legitimate reporter or not, because down that road is — lies a lot of difficulties.

TERENCE SMITH:

Right. And he's even invited the White House Correspondents Association to take over the credentialing. They do not want to do that. At the moment, the press office handles it in the way just described.

So now there are calls from Capitol Hill, mostly from Democrats, to review these guidelines, review whether there has been a security breech, whether somebody has in any way jeopardized the protection of the president or his staff, and those appeals are out there.

JIM LEHRER:

Meanwhile, Guckert is no longer going to the White House. He no longer has — getting credentials, correct?

TERENCE SMITH:

That's correct.

JIM LEHRER:

He has completely withdrawn.

TERENCE SMITH:

Guckert has withdrawn from that, but the calls from Capitol Hill keep coming.

JIM LEHRER:

All right. Terry, thank you.

TERENCE SMITH:

Thanks, Jim.