Friedman [Case Western]: Disclosures and non-disclosures

Peter Friedman , Case Law School:

"Robert Novak outed Valerie Plame as a CIA agent, and yet Matthew Cooper and Judith Miller have to go to jail because they won't disclose their sources for the information that Novak published? In his concurring opinion to the D.C. Circuit opinion affirming the trial court's order holding Cooper and Miller in contempt, David Sentelle draws near the point that Novak's publication of the Plame story was far more blameworthy than Cooper's refusal to write about Plame until after Novak had — by then Cooper's article was not a disclosure of information illegally leaked but instead was about the firestorm of attention that had broken out over Novak's disclosure of Plame's identity:

In concluding that no privilege applies in this case, I have assigned no importance to the fact that neither Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue, revealed Plame's employment, though Cooper wrote about it after Novak's column appeared. Contrary to the reporters' view, this apparent self-restraint spares Miller and Cooper no obligation to testify. Narrowly drawn limitations on the public's right to evidence, testimonial privileges apply "only where necessary to achieve [their] purpose," Fisher v. United States, 425 U.S. 391, 403 (1976), and in this case the privilege's purpose is to promote dissemination of useful information. It thus makes no difference how these reporters responded to the information they received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffee suggested would not be privileged, see 518 U.S. at 18 n.19). In all such cases, because the communication is unworthy of protection, recipients' reactions are irrelevant to whether their testimony may be compelled in an investigation of the source. [Opinion at 39.[
Sentelle and the rest of the D.C. Circuit never address, however, the elephant in the room: if Cooper and Miller have to go to jail for refusing to disclose to a grand jury the identity of the person who told them Plame was a CIA agent, then is anything going to happen to Novak or even the people who actually broke the law here — the "White House officials" who leaked Plame's identity?" [February 16, 2005; RAWDATA has the post]

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