The NY Times reports that Time Inc.’s decision to hand over its notes to special prosecutor Patrick Fitzgerald may not keep reporters Matthew Cooper and Judith Miller out of jail after all. Fitzgerald has told the court that he still needs Miller and Cooper to testify despite receiving documents from Time, Inc. Tomorrow is the hearing before Judge Hogan, at which the judge presumably will decide whether Miller and Cooper should still be held in contempt despite Time’s production of documents, and if so, in which jail they will while away the hours until such time as they decide to testify.
Does Fitzgerald really still need Cooper’s testimony? It’s just not possible to know – the only people who have seen the evidence in this case are Fitzgerald and the various judges that have so far unanimously upheld his position. All we on the outside can say is that (1) Fitzgerald is bound by Justice Department guidelines which, as explained here, prohibit him from forcing reporters to testify unless he is both confident that a crime has been committed and confident that the reporters’ testimony is needed to prosecute that crime; and (2) so far, four federal judges (Judge Hogan plus the three appeals court judges) have agreed that Fitzgerald has shown that he really does need the reporters’ testimony.
So Miller and Cooper, it would seem, have critical evidence of a federal crime. They, like every other citizen, have an obligation to provide that evidence. IMHO, the fact that they are reporters just isn’t enough to absolve them of such a basic civic duty.
UPDATE: The Special Prosecutor’s brief opposing Miller’s motion to reconsider putting her in jail is available here, and his much shorter brief on Cooper is here. The briefs in support of Miller and Cooper are here and here respectively. Thanks to Hunter at dKos for the pointer. The Prosecutor’s brief on Miller is an interesting read, not least for its impressive collection of editorials, op-eds, and other commentary disagreeing with the NY Times’s party line that Miller shouldn’t be forced to testify. Remember, Miller’s source has already waived confidentiality in writing (as the Prosecutor notes at p. 14 of his brief on Miller) – it’s just Miller’s and the Times’s distorted sense of what the First Amendment should require (a view so far not shared by any court) that is keeping this dispute alive.
