US Court of Appeals: Special Counsel's Showing Decides The Case

Citizen Spook Wednesday, August 24, 2005

Individuals within the Bush Administration revealed the identity of CIA operative, Valerie Plame in contravention of US statutes. But there has been an intentional misdirection in claiming that the law that was violated is "Intelligence Identities Protection Act" of 1982. Four high profile cases have been founded on the statute, United States Code, 18 USC 794.

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While Joe Wilson, who still hasn't mentioned the hovering ominous specter of 18 USC 794, is in damage control mode cowardly hiding behind the bravery of Cindy Sheehan, and Judith Miller continues to whine about being put in jail for protecting criminals and crimes, I thought it would make good reading to summarize the incendiary 83 page opinion issued by The US Court of Appeals (D.C. Circuit), IN RE: GRAND JURY SUBPOENA, JUDITH MILLER so you can have some judicial perspective from the three judge appellate tribunal as to the seriousness of the crimes Fitzgerald is pursuing.

This Court of Appeals decision will be interesting to readers of this blog since it not only damns the crimes of the Bush administration, but it also backs up the issue of Fitzgerald's plenary authority as acting Attorney General for the Tgate prosecution, and cites United States v. Williams to witness authority for the argument that the federal grand jury acts as an independent branch of the US Government.

The decision also tackles the question of whether bloggers are entitled to the same freedom of the press protections as all other journalists.

The Court of Appeals circuit judges had to perform a preliminary adjudication of the facts and the law in Treasongate to determine if the press (Miller and Cooper in this case) were entitled to a special privilege to protect their leak sources. And in doing so the Judges put incredible anti-Bush administration statements on the record which have not been reported in the main stream media. These are crushing blows to the Bush administration.

Both the Court of Appeals, and the District Court below it, after reviewing eight and a half pages of classified and redacted proofs presented by Special Counsel Fitzgerald's office, held that the evidence was so serious that they could not in good conscience allow the press to protect the criminals and crimes that had been committed.

The decision of the Court of Appeals in this matter gives me hope that there will be serious prosecutions coming down upon the Treasongate "perpetraitors".

Despite the main stream media mantra that Fitzgerald has damaged freedom of the press, it's obvious from reading the full opinion that this three judge appellate tribunal, spearheaded by Judge Tatel, did, in fact, clarify this previously muddy issue of source protection. Tatel's concurring opinion found that, despite controlling US Supreme Court precedent, Branzburg v. Hayes, mandating that the press does not have a special privilege to protect sources under the 1st Amendment, such a privilege does exist in the common law. Judge Tatel sought to create a test to balance the seriousness of the crimes committed against the needs of the press to protect their sources.

Tatel attempted to make new law by crafting a logical test to balance these issues, then applied the test to the Tgate fact pattern, only to find that the Special Counsel had proved that the "gravity of the suspected crime" was far more important than the news value of the leaked information.

The other two Judges were so moved by Fitzgerald's showing of proof that they determined no test needed to be crafted since Special Counsel's evidence was strong enough to defeat any test they might possibly craft. In the interest of Judicial restraint the majority opinion does not mention the test created by Tatel.

I first became aware of this Appellate Court decision when I read Lawrence O'Donnel's analysis of it in the July 7, 2005, Huffington Post, wherein he makes reference to the "eight redacted pages". Let me explain what those eight redacted pages (actually eight and a half redacted pages) mean, and what they don't mean.

From the middle of page 72 (using the PDF file page count) through page 80, the court's opinion contains blank pages which represent the redacted, classified proofs tendered by Special Counsel to the court. The middle of page 72 through the top of page 76 is the blank space that refers to evidence pertaining to Judith Miller's sources. And from Page 76 through page 80 is the blank space which refers to Cooper's sources. These eight and a half redacted pages are what the Court of Appeals examined to determine whether Cooper and Miller would be allowed to protect their sources. The classified findings contained in those pages convinced all three Judges sitting on this tribunal that Fitzgerald is pursuing very serious crimes.

What the eight and a half redacted pages do not represent is the enitrety of Special Counsel's case. This is a very important point to focus on. O'Donnel's report has been misunderstood by some who think that the "eight redacted pages" make up Fitzgerald's entire case. The Appellate Court's decision does not say that. In fact, the Court's decision clearly delineates on page 76, the cut off where Special Counsel's showing as to Miller ends and Cooper begins.

These eight and a half redacted pages convinced the seasoned jurists sitting on the bench, not just in The Court of Appeals, but in the lower District Court as well, that the gravity of the crimes committed far outweighed the needs of the press to leak such information. We can only imagine what Fitzgerald gave them. So try to imagine the scope of evidence he must have that is not specifically related to Miller or Cooper. Until I actually read the 83 page opinion for myself, I had assumed that the eight redacted pages represented the lion's share of
Fitzgerald's case. But after reading the Court of Appeals opinion carefully, I believe the eight and a half redacted pages are just the tip of the iceberg. So let's now take a close look at what they said and why they said it.

Circuit Judge Sentelle wrote the opinion of the court, and also wrote a concurring opinion, as did Circuit Judges Henderson and Tatel. [Please note, for the ease of internet viewing, that all of my citations will refer to page numbers in the official ".gov" PDF file ].

The analysis section begins on page 7. There were four possible grounds the court considered as to whether the reporters were entitled to the privilege of protecting their sources from the Special Counsel's probe:

A. 1st Amendment Claim

B. A Common Law Privilege

C. Due Process

D. DOJ administrative guidelines

All three of the circuit judges concurred that there was no special exemption for the press as to A, C and D above. They major difference they had pertained to the Common Law privilege. But in the end, they all agreed that even if there is a common law exemption available to the press, in this case Special Counsel's showing clearly outweighed any such privilege.

Let's take a look at what the court had to say about all of the possible exemptions (all bold face and italics are emphasis added by CS):

A. 1st Amendment Claim

The Appellate Court stated on page 7-8:

"In his opinion below, the Chief District Judge held that "a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection." In Re Special Counsel Investigation, 332 F. Supp. 2d 26, 31 (D.D.C. 2004). Appellants argue that "this proposition of law is flatly contrary to the great weight of authority in this and other circuits." Appellants are wrong. The governing authority in this case, as the District Court correctly held, comes not from this or any other circuit, but the Supreme Court of the United States. In Branzburg v. Hayes, 408 U.S. 665 (1972), the highest Court considered and rejected the same claim of First Amendment privilege on facts materially indistinguishable from those at bar. "

The court further stated on page 10-12:

In rejecting the claim of privilege, the Supreme Court made its reasoning transparent and forceful. The High Court recognized that "the grand jury's authority to subpoena 11 witnesses is not only historic . . . but essential to its task." 408 U.S. at 688 (citation omitted).

The grand juries and the courts operate under the "longstanding principle that 'the public has a right to every man's evidence,' except for those persons protected by constitutional, common law, or statutory privilege." Id. (citations and internal punctuation omitted). The Court then noted that "the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination." Id. at 689-90. The Court then expressly declined "to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy." Id. at 690. In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish, the Court stated that it could not "seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it." Id. at 692....

The Branzburg Court further supported the rejection of this claimed privilege by the commonsense observation that "it is obvious that agreements to conceal information relevant to the commission of crime have very little to recommend them from the standpoint of public policy." Id. at 696. While the Court recognized the right of the press to abide by its agreements not to publish information that it has, the Court stated unequivocally that "the right to withhold news is not equivalent to a First Amendment exemption from an ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function." Id. at 697.

We have pressed appellants for some distinction between the facts before the Supreme Court in Branzburg and those before us today. They have offered none, nor have we independently found any."

All of the Judges concurred that there was no 1st Amendment exemption for the press.

B. The Common Law Privilege

Now pay very close attention to the wording of the Court's unanimous opinion here (pages 16-17):

The Court is not of one mind on the existence of a common law privilege. Judge Sentelle would hold that there is no such common law privilege for reasons set forth in a separate opinion. Judge Tatel would hold that there is such a common law privilege. Judge Henderson believes that we need not, and therefore should not, reach that question. However, all believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing. All further believe, for the reasons set forth in the separate opinion of Judge Tatel, that if such a privilege applies here, it has been overcome. Therefore, the common law privilege, even if one exists, does not warrant reversal.

This statement represents the full opinion of the court, but each of the judges wrote a concurring opinion as well. After we take a brief look at the other two failed exemption grounds, we will examine each of their statements further on the common law issue.

C. Due Process

Not only did the Court of Appeals find that this argument was without merit, the court took notice of the independent power the federal grand jury holds in our government.

From page 17:

While appellants insist that their privilege is absolute, they assert a secondary line of argument that if their privilege is conditional, then their due process rights have been violated by the refusal of the Special Counsel and the District Court to provide them access to the Special Counsel's secret evidentiary submissions in support of the enforcement of the subpoenas. This argument is without merit.

Regarding the power and independent authority of the federal grand jury, the Court of Appeals had this to say on page 17:

As the Supreme Court has reminded us on occasion, "the grand jury is an institution separate from the courts." United States v. Williams, 504 U.S. 36, 47 (1992). The function of that separate institution is to "serv[e] as a kind of buffer or referee between the government and the people." Id.

D. Department of Justice Guidelines

Not only did the Appellate Court find that this argument was without merit, it also recognized that Fitzgerald has all of the plenary authority of the Attorney General in his case. From page 20:

In their final argument for reversal of the District Court's contempt finding, appellants contend that the Special Counsel did not comply with the Department of Justice guidelines for issuing subpoenas to news media and that such failure provides an independent basis for reversal. The District Court expressed its doubt that the DOJ guidelines were enforceable, but found that even if they were, Special Counsel had fully complied with the guidelines. Because we conclude that the guidelines create no enforceable right, we need not reach the question of the Special Counsel's compliance. The guidelines in question are set forth in 28 C.F.R. § 50.10 and the United States Attorney's Manual, § 9-2.161. Those guidelines provide that subpoenas for testimony by news media must be approved by the Attorney General, a requirement not pertinent in the present case as the Special Counsel had received delegation of all the Attorney General's authority... "

Somebody give that man a cigar. It's been judicially confirmed, Fitzgerald has all of the power of the Attorney General for the purposes of prosecuting Treasongate crimes.

Out of the four issues presented to the court, it was the common law privilege that most concerned the circuit judges. All three of the circuit judges offered different opinions on whether such an exemption exists, but they all agreed that, even if such an exemption does exist, the exemption is only "qualified" and not "absolute". They also agreed that the Special Counsel's showing of proof was strong enough to outweigh any test they might create. What's most interesting is the language each judge used to describe the weight given by them to Special Counsel's proofs.

Judge Sentelle did not recognize the existence of a common law privilege.

JUDGE SENTELLE (from page 24):

SENTELLE, Circuit Judge, concurring: As noted in the opinion of the court, I write separately to express my differing basis for affirming the District Court on the common law privilege issue...[A]ny such privilege enjoyed by the reporters has been overcome by the showing of the United States... "

Judge Henderson agreed and elaborated (from page 34):

Because my colleagues and I agree that any federal common-law reporter's privilege that may exist is not absolute and that the Special Counsel's evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel's evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter's privilege may erect."

From page 35, footnote 2:

Is the Special Counsel's evidentiary proffer sufficient to overcome any qualified privilege that may exist? Because we agree that the answer is "yes," there is no need for us to go any further. "

And then the blockbuster quote:

While I am convinced that we need not, and therefore should not, go further than to conclude, as did the district court, see Appendix 35-36, 275, that the Special Counsel's showing decides the case... "

That's a big quote there. It's so big, I don't even know what it means. And I think the Judge may have intended to be as coy as the quote suggests. And if I'm right about that, hang on to your hat, America, this is going to be quote a thrill ride.

Judge Tatel found that a common law privilege for the press does exist, and he tried valiantly to make the case. But in the end, Tatel decided that Special Counsel's showing was strong enough to overcome any test that might exist in the law: (from page 43):

TATEL, Circuit Judge, concurring in the judgment: This case involves a clash between two truth-seeking institutions: the grand jury and the press. On the one hand, the grand jury, a body "deeply rooted in Anglo-American history" and guaranteed by the Fifth Amendment, see United States v.Calandra, 414 U.S. 338, 342-43 (1974), holds "broad powers" to collect evidence through judicially enforceable subpoenas. See United States v. Sells Eng'g, Inc., 463 U.S. 418, 423-24 (1983). "Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution." Id. at 424. On the other hand, the press, shielded by the First Amendment, "has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences." Estes v. Texas, 381 U.S. 532, 539 (1965). Using language we have quoted with approval, see Carey v. Hume, 492 F.2d 631, 634-35 (D.C. Cir. 1974), the Second Circuit aptly described this conflict between press freedom and the rule of law: "Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press." Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958). Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters' testimony, I join the judgment of the court.

Tatel went on to fashion a balancing test, one that recognized a special common law exemption that would protect the press from revealing sources under certain circumstances. From page 69:

In short, the question in this case is whether Miller's and Cooper's sources released information more harmful than newsworthy.

Then Tatel applied the test to the facts (page 70):

Applying this standard to the facts of this case, and considering first only the public record, I have no doubt that the leak at issue was a serious matter. Authorized "to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, [his] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,"see Letter from James B. Comey, Acting Attorney General, to Patrick J. Fitzgerald, United States Attorney, Northern District of Illinois (Feb. 6, 2004), the special counsel is attempting to discover the origins of press reports describing Valerie Plame as a CIA operative monitoring weapons of mass destruction. See majority op. at 3-5.

Before returning to Tatel's opinion, it's interesting to note that Tatel, along with the other two circuit judges, do not limit their discussion to the Intelligence Identities Protection Act. Tatel appears to be concerned with "violations of any federal criminal laws related to the underlying alleged unauthorized disclosure." If the Court of Appeals is not limiting its discussion to the IIPA, why the hell is Joe Wilson and the main strema media limiting their discussion to the IIPA?

More from Judge Tatel (pages 70-72):

An alleged covert agent, Plame evidently traveled overseas on clandestine missions beginning nearly two decades ago. See, e.g., Richard Leiby & Dana Priest, The Spy Next Door; Valerie Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct. 8, 2003, at A1. Her exposure, therefore, not only may have jeopardized any covert activities of her own, but also may have endangered friends and associates from whom she might have gathered information in the past...

The leak of Plame's apparent employment, moreover, had marginal news value. To be sure, insofar as Plame's CIA relationship may have helped explain her husband's selection for the Niger trip, that information could bear on her husband's credibility and thus contribute to public debate over the president's "sixteen words." Compared to the damage of undermining covert intelligence-gathering, however, this slight news value cannot, in my view, justify privileging the leaker's identity...

Just as due process poses no barrier to forcing an attorney to testify based on the court's examination of evidence, unseen by the lawyer, that the client sought legal advice in pursuit of a crime, neither does it preclude compulsion of a reporter's testimony based on a comparable review of evidence, likewise unseen by the reporter, that a source engaged in a harmful leak. In fact, appellants' protests notwithstanding, ex parte review protects their interests, as it allows the government to present-and the court to demand-a far more extensive showing than would otherwise be possible given the need for grand jury secrecy discussed in the court's opinion, see majority op. at 17-18. That said, without benefit of the adversarial process, we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has.

Voluminous classified findings? Hey now.

Judge Tatel (from page 81):

In sum, based on an exhaustive investigation, the special counsel has established the need for Miller's and Cooper's testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas.

Judge Tatel concluded (from pages 82-83):

I conclude, as I began, with the tensions at work in this case. Here, two reporters and a news magazine, informants to the public, seek to keep a grand jury uninformed. Representing two equally fundamental principles-rule of law and free speech-the special counsel and the reporters both aim to facilitate fully informed and accurate decision-making by those they serve: the grand jury and the electorate. To this court falls the task of balancing the two sides' concerns.

As James Madison explained, "[A] people who mean to be their own Governors must arm themselves with the power which knowledge gives." See In re Lindsey, 148 F.3d 1100, 1109 (D.C. Cir. 1998) (quoting Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910)). Consistent with that maxim, "[a] free press is indispensable to the workings of our democratic society," Associated Press v. United States, 326 U.S. 1, 28 (1945) (Frankfurter, J., concurring), and because confidential sources are essential to the workings of the press-a practical reality that virtually all states and the federal government now acknowledge-I believe that "reason and experience" compel recognition of a privilege for reporters' sources. That said, because "[l]iberty can only be exercised in a system of law which safeguards order," Cox v. Louisiana, 379 U.S. 559, 574 (1965), the privilege must give way to imperatives of law enforcement in exceptional cases.

Were the leak at issue in this case less harmful to national security or more vital to public debate, or had the special counsel failed to demonstrate the grand jury's need for the reporters' evidence, 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.

Where is the main stream media in reporting this decision? It's fairly frightening, America. The free press is long gone down the road to perdition. The main stream media, by its calculated decision to ignore the very damning language of this court, and its unwillingness to cover 18 USC 794, has proven itself to be nothing more than the Government's bureau of propaganda.

As long as the press sticks to the script, "Wilson was smeared, but the IIPA was not violated", the press is allowed to hammer away, as yesterday's regurgitated LA Times recap makes witness to (a report which added nothing new to the matter and was only issued as cover for the blogosphere truth bombs being exploded all over this case). Deviations from that script do not seem to be allowed.

We must, if we are to have any chance of sustaining this republic, demand that the press deliver the whole story all of the time. There's only one way that will happen. A complete boycott of main stream media sources, print, internet and TV.

I don't know how to go about making that happen.

I agree with James Madison and Judge Tatel, "A people who mean to be their own Governors must arm themselves with the power which knowledge gives."

I am no fan of either the GOP or the Democratic Party. I see them as different sides of the same team. I do not trust them at all. They have proven themselves to be fighting for the same cause, the overthrow of this republic into the hands of a corporate hierarchy and a coming Police state.

It would take the average citizen a long time to sift through everything I've written on the Treasongate crimes. Adding anything else to this analysis would only serve to confuse more than clarify. If the readership of CS thinks this information is important, do something with it. I don't think I can add anymore to the debate.

I don't know when I'll add to this blog again.

The rabbit hole is so deep and wide, I'm not sure what our chances of escape are. I don't know if the press will ever be there for the people again.

Thank you for the kind letters of support. I have not been able to respond everybody, but I do read them all. I enjoy hearing from you, it makes the work worthwhile.

Bloggers will be interested in the following comments by Judge Sentelle (from page 29-30):

The Supreme Court went on to observe that "freedom of the press is a 'fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?...

From pages 32-33:

If the court extends the privilege only to a defined group of reporters, are we in danger of creating a "licensed" or "established" press? If we do so, have we run afoul of the breadth of the freedom of the press, that "fundamental personal right" for which the Court in Branzburg expressed its concern? 408 U.S. at 704. "

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