The federal judge in charge of Novak-Plame-gate, Thomas Hogan, spoke the quoted words in the title of this post in a hearing today in which he essentially told Judith Miller and Matthew Cooper, the reporters whose testimony special prosecutor Patrick Fitzgerald wants, that they will be in jail within a week unless they agree to testify before the grand jury. (As you’ll recall, on Monday the Supreme Court refused to hear the reporters’ appeals from the D.C. Circuit Court of Appeals’ decision rejecting their claims of a privilege not to reveal confidential sources, which brought them to the end of the legal road.)
The reporters have pretty much said all along that they’ll go to jail before they reveal their sources (although Cooper has lately been somewhat more circumspect). The really interesting wrinkle, though, is that Cooper’s employer, Time Inc., is also on the hook because it has control of Cooper’s notes which probably would reveal his sources. And Judge Hogan has indicated that he intends to impose gargantuan fines on Time if it refuses to comply with his order. Now, Cooper and Miller are individuals and can stand on principle ’til the cows come home. But Time Inc. is a public corporation with fiduciary obligations to its shareholders who are likely far less interested in lofty principles than in getting good returns on their investments. Debilitating fines imposed by federal judges tend to be bad for business, so methinks there’s a good chance that Time Inc. will cave. And if Time Inc. caves, that might get at least Cooper off the hook – maybe it’ll help out Miller too.
I’ve blogged a lot about this case (here, here, here, and here, for instance). In a nutshell, I think it’s appropriate to force Miller and Cooper to testify, for the reasons I outlined here months ago (which ended up being quite similar to D.C. Circuit Judge Tatel’s concurring opinion). But the best result would be for Time Inc. to cave, which hopefully (a) gets Fitzgerald the information he needs; (b) avoids the spectacle of imprisoning well-known reporters for refusing to divulge confidential sources; and (c) finally nails the traitor who leaked Plame’s identity to douchebag of liberty Bob Novak in the first place (and maybe nails Novak for perjury in the process). Stay tuned – the parties have to file their next round of papers with the court by Friday, and will appear again in court next Wednesday.
UPDATE: Murray Waas has a different take on the bottom line than I do, but his report on today’s events at the courthouse are well worth a read.
David, I appreciated your post back in November outlining the competing goals in this case of a free press and prosecutors’ ability to fight crime. It seemed that you were drawing an analogy between freedom of the press and freedom of speech in that neither is absolute, and that sometimes both might need to yield to other rights and public interests.After reading the UC Berkely News article you linked to, I have to ask are you being too harsh on Judy Miller on this particular point? I don’t think she gets to defy a court order for free. Doesn’t every American have the right to refuse a court order if they are willing to bear the consequences? I remember a NY Times reporter going to jail, and the Times paying some stiff fines back in the late seventies because they refused to reveal the identity of a source.If the reporter believes that there is a principle of press freedom here that outweighs other considerations – in other words that the court has struck the wrong balance – then she has one last avenue of protest. Isn’t this civil disobedience, something that has a rich tradition in our country?