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.