E&P reports that First Amendment bigwig Floyd Abrams, who represents reporters Judith Miller and Matthew Cooper in the Novak-Plame-gate business, has filed a motion for rehearing en banc before the entire eight-judge D.C. Circuit Court of Appeals. Miller and Cooper lost convincingly in the first round before that Court.
This is not a surprising development – the case is certainly important enough for the Court to seriously consider en banc review, and if it’s denied, a request for the Supremes to hear the case seems inevitable. What is interesting is that Miller and Cooper have apparently not yet fired Abrams. Abrams is fairly described as a "First Amendment idealist," and he took a pretty extreme position before the D.C. Circuit, arguing basically that reporters should never have to give up confidential sources under any circumstances. The Court handed his head to him on a silver platter, pretty much rejecting his arguments outright and in some cases not even taking them very seriously. After the decision came down, at least one commentator suggested that Miller and Cooper might be better served by hiring different counsel. Of course, maybe Miller and Cooper (or their MSM employers) are the ones telling Abrams what arguments to advance, and ultimately Abrams’ job as their lawyer is to press the arguments he’s instructed to press. Still, it will be interesting to see whether Abrams’ future filings in the case show any retreat from or modification of his previous positions, or whether he goes full speed ahead in hopes that the en banc court (or the Supreme Court) see fit to totally reject the D.C. Circuit panel decision.
Miller and Cooper should go into some other way of making a living. The story was not, about Plame or even Novak. The story was who in the administration was leaking the Plame “revelation”. They should be exposed, not shielded as legitimate sources.