(The Return of) Ignatz, by Sam Heldman

Tuesday, February 15, 2005

Novak, Plame, et al.
The U.S. Court of Appeals for the D.C. Circuit today held that Judith Miller, Time magazine and a Time reporter have no privilege against revealing their "confidential source(s)" in the Novak-Plame investigation. Opinion is here. The highlights depend on your point of view:

If you are a lawyer who ever practices in this area, the whole thing is the highlight. No First Amendment privilege at all, says the Court -- but then the three judges split three ways as to whether there is any common law privilege. They all converge on the conclusion that even if there is such a common law privilege, it is not absolute and is overcome in this case given the importance of the grand jury's investigation.

If you are most interested in the substance of the investigation itself, you will be intrigued to note that there are several pages of redacted passages where Judge Tatel -- who is, in this, speaking for all three judges -- explains (but not to us!) the particular facts about Miller and Cooper and their connection to the disclosure of Plame's identity with the CIA. Read Judge Tatel's opinion, pp. 73-80 of the pdf file, and wish wish wish that you could see the words that used to be in that blank space. And then read his conclusion -- again remembering that he is speaking for all three judges on this particular point -- as he says
Were the leak at issue in this case less harmful to national security, ... I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.
Maybe some Right-partisan bloggers who pretended that there was nothing to this investigation, or that the whole thing was ridiculous partisanship on the part of Bush-haters, will understand now?

If you love it when people outside of the blog world recognize the existence of the blog world, you will be thrilled by a portion of Judge Sentelle's concurring opinion, as I explain and quote here at Appellate Law and Practice.

posted by sam 1:53 PM 1 comments


I actually read that while wearing my pajamas... now that's ironical!

By Blogger Chris, at 3:25 AM  

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