So. As we all know by now, the Supreme Court will not be hearing an appeal in the case of Matthew Cooper and Judith Miller on the question of journalistic privilege and whether it can be invoked to safeguard the anonymity of sources.
Today, Cooper and Miller will stand before a judge in a DC courtroom and find out if they’re going to jail.
A recap: Former U.S. ambassador Joseph Wilson wrote an op-ed piece contradicting the Bush administration’s assertion that Saddam had sought uranium in Africa. In retaliation, a “senior administration official” leaked to a few reporters that Wilson’s wife was CIA agent Valerie Plame. A grand jury was convened to find the leaker, who broke the law by outing a CIA agent. When called to testify, Cooper and Miller refused to reveal who their source was.
A clarification: The original lawbreaker sought in the Grand Jury probe? Neither Cooper nor Miller.
Another clarification: Neither Cooper nor Miller were the first to publish the leak. That was Chicago Sun-Times columnist Robert Novak.
A mystery: No one knows whether Novak testified. Eight pages in the appeal court decision were blank. Meanwhile, Novak is mum on the matter. But, he’s not the one going to jail.
There are plenty of reasons why the Supreme Court sucks for not hearing this appeal, chief among them because the state of the law regarding anonymous sources is totally murky and inconsistent across the states and at a national level (the attorneys general of 34 states and the District of Columbia submitted an amicus brief urging the court to address this inconsistency).
But for now, the biggest reason is because two people might seriously be going to jail in a matter where no one has even been charged with a crime.
So the time has come; everyone has to do something.
Patrick Fitzgerald, it’s no longer about who blinks first. Stop with the Javert routine and let Judge Hogan know that you do not think these people should go to jail. It wouldn’t hurt to remind him that your big fancy grand jury has yet to result in any indictments.
Robert Novak, maybe it’s time for you to come clean. Fellow conservative William Safire thinks so (not to mention Wonkette, and the Daily News, and us, and pretty much everybody). Per Safire: “Mr. Novak should finally write the column he owes readers and colleagues perhaps explaining how his two sources – who may have truthfully revealed themselves to investigators – managed to get the prosecutor off his back.” (NB we emailed Novak at his Sun-Times-linked email address requesting an interview but shockingly haven’t heard back.)
Meanwhile, according to E&P, Time is considering handing over documents incriminating the source (Cooper didn’t comment). Miller and the Times are holding fast, meanwhile. (Recall Miller didn’t even publish anything. But, that’s so no longer the point.) And, there’s the matter of Time’s comment Monday about Fitzgerald’s “substantially changed investigation” and new facts. So who knows.
Who knows, indeed – precious few of us. We’ll know more at 4:30 pm when Matt & Judy go to court, and hopefully they’ll walk out free and victorious, having taken a stand for something important to them and hopefully to us all.
But if they don’t? Well, let’s not make predictions. But Novak, I’d start writing.