Blue Mass Group

Reality-based commentary on politics.

  • Shop
  • Subscribe to BMG
  • Contact
  • Log In
  • Front Page
  • All Posts
  • About
  • Rules
  • Events
  • Register on BMG

Novak-Plame-gate reporters head to the Supremes

April 21, 2005 By David

Judith Miller and Matthew Cooper, the reporters facing jail time for their refusal disclose confidential sources in the Valerie Plame affair, have lost their bid for en banc review in the D.C. Circuit.  The Court’s order, with a concurring statement by Judge Tatel, is here.  No judge wrote a dissenting opinion (which of course does not mean that no judge dissented).

The next and last stop, of course, is the Supreme Court – although the immediate question is whether Miller and Cooper will be successful in obtaining yet another stay of the District Court’s contempt order, or whether they will instead have to head to the hoosegow while the Supremes consider their case.  Editor & Publisher has some interesting comments from lawyers and others involved in the case.

So: will four Justices vote to grant certiorari in this case?  Tough call.  It does not seem terribly likely to me that the First Amendment issue is important enough, unless the Court is seriously considering overruling Branzburg v. Hayes outright – IMHO, the Branzburgian system we have now (whereby prosecutors sorta have to prove that they’ve exhausted all other leads before going after reporters) generally works pretty well, although it can go awry in individual cases (like any flexible standard).  An absolute privilege would, in my view, be a mistake, and I doubt a majority of the Court would go that route.  And the existence or non-existence of a "federal common law" privilege is important, but the problem there is that, as Judge Tatel’s concurrence in the denial of en banc review points out, the issue was not squarely decided in the D.C. Circuit’s original opinion.  The narrowest of the four (!) opinions in the original case, Judge Henderson’s, simply concluded that any privilege that might exist was qualified (rather than absolute), and any qualified privilege would have been overcome by the special prosecutor’s showing in this case.  So the D.C. Circuit really didn’t decide the issue, and the Supremes usually don’t like to decide issues that were passed on by the court below (of course, there are exceptions).  So my guess: cert. denied.  We’ll see if they prove me wrong.

Please share widely!
fb-share-icon
Tweet
0
0

Filed Under: User Tagged With: law-and-lawyers

Recommended Posts

  • No posts liked yet.

Recent User Posts

Predictions Open Thread

December 22, 2022 By jconway

This is why I love Joe Biden

December 21, 2022 By fredrichlariccia

Garland’s Word

December 19, 2022 By terrymcginty

Some Parting Thoughts

December 19, 2022 By jconway

Beware the latest grift

December 16, 2022 By fredrichlariccia

Thank you, Blue Mass Group!

December 15, 2022 By methuenprogressive

Recent Comments

  • blueeyes on Beware the latest griftSo where to, then??
  • Christopher on Some Parting ThoughtsI've enjoyed our discussions as well (but we have yet to…
  • Christopher on Beware the latest griftI can't imagine anyone of our ilk not already on Twitter…
  • blueeyes on Beware the latest griftI will miss this site. Where are people going? Twitter?…
  • chrismatth on A valedictoryI joined BMG late - 13 years ago next month and three da…
  • SomervilleTom on Geopolitics of FusionEVERY un-designed, un-built, and un-tested technology is…
  • Charley on the MTA on A valedictoryThat’s a great idea, and I’ll be there on Sunday. It’s a…

Archive

@bluemassgroup on Twitter

Twitter feed is not available at the moment.

From our sponsors




Google Calendar







Search

Archives

  • Facebook
  • RSS
  • Twitter




Copyright © 2025 Owned and operated by BMG Media Empire LLC. Read the terms of use. Some rights reserved.