I’m torn on this one
Via Mike, the Other Biased Washington Paper reports:
A reporter is being held in contempt of court and faces possible jail time, and another was earlier threatened by a federal judge with the same fate, after they refused to answer questions from a special prosecutor investigating whether administration officials illegally disclosed the name of a covert CIA officer last year.
Newly-released court orders show U.S. District Court Chief Judge Thomas F. Hogan two weeks ago ordered Matt Cooper of Time magazine and Tim Russert of NBC to appear before a grand jury and tell whether they knew that White House sources provided the identity of CIA officer Valerie Plame to the media.
The Justice Department probe is trying to determine whether this information was provided knowingly, in violation of the law. Hogan’s orders show that special prosecutor Patrick Fitzgerald believes Cooper and Russert know the answer.
Cooper still refused to answer questions after Hogan’s July 20 order, and on Aug. 6 Hogan held him in contempt of court and ordered that he go to jail. Cooper has been released on bond pending his emergency appeal to a federal appeals court. Hogan has ordered that Time pay a $1,000 fine for each day Cooper does not appear before the grand jury.
Sources close to the investigation said they believe Russert was not held in contempt Aug. 6 because he agreed to answer the questions after Hogan’s July 20 ruling.
Both journalists had earlier tried to quash the subpoenas issued by Fitzgerald in May. But, citing a Supreme Court decision, Judge Hogan ruled that journalists have no privilege to protect anonymous sources when the state has a compelling interest to investigate or prosecute a crime.
First off, I echo Mike’s sentiment that reporters have no special rights. They should be treated just like you and me. However, I think those rights include the right to not incriminate themselves and to remain silent. Of course, I’m no Constitutional scholar so maybe there is no right to not testify.
And, for what it’s worth, this kind of testimony is just about the only thing that can convince me that the Plame incident was indeed scandalous.
August 9th, 2004 at 5:11 pm
If you or I had knowledge of someone else’s crimes and were called to testify, we would have to tell the court what we knew, whether it had a “compelling” interest or not. The privilege against self-incrimination is just that; a privilege against being required to incriminate yourself. Other privileges exist also (doctor/patient, attorney/client, husband/wife, etc.) but there is no general “I don’t want to rat on this guy” privilege.
That journalists are given any privilege at all WRT anonymous sources suggests that they are, to borrow your catch phrase, “just like you and me, only better.” Just not as much better as they’d hoped.
August 9th, 2004 at 7:39 pm
what if ratting them out involves ratting yourself out? Then, is it self incrimination or as that only at, say, your trial?
August 10th, 2004 at 12:46 pm
Uncle:
If I’m not mistaken, they can get around that simply by giving you immunity. In other words, I think they can compel you to testify if they waive the right to prosecute you for anything you might reveal during that testimony.
August 10th, 2004 at 1:07 pm
Isn’t that what they did to Susan McDougal? Gave her immunity, and then when she didn’t testify, locked her up? Or am I smoking crack here?
August 10th, 2004 at 1:31 pm
That is correct. A strict reading of the Fifth Amendment would only protect you from being compelled to testify at your own trial, but courts have consistently ruled that it applies more broadly than that, extending to any other compulsory statements that could also be used against you in a criminal trial. An immunity deal (either generally, or as to the specific testimony only) destroys that privilege, as does anything else that prevents you from being prosecuted (e.g., you’ve already been tried for that crime, the statute of limitations has run, or whatever).
August 10th, 2004 at 1:52 pm
If I read the article correctly, all other avenues of obtaining the information had also been exhausted. The only remaining way to find out was through these reporters. So, I think reasonable good faith was demonstrated here. Also, note that Bob Novak’s name doesn’t come up. Did he talk?
August 11th, 2004 at 1:31 pm
Defeating the 5th Amendment by grants of immunity is a bit dicey, but it can be done.
But that’s irrelevant here. You can’t really use the 5th Amendment to defeat subpoenas when you really face no chance of prosecution and haven’t done anything wrong (i.e. there’s no law against the reporter receiving or publishing the information).
So journalists don’t have the right to protect their sources. They risk martyrdom by doing so.
But even if they don’t have the right, maybe we should extend to journalists the ability to protect sources by legislation. It might be good policy, although the potential for abuse seems pretty high.