WASHINGTON - Two journalists fighting to avoid jail for refusing to testify before a grand jury investigating the exposure of a CIA operative's identity yesterday appeared to find at least one sympathetic member on a federal appeals court panel.
Judith Miller, a reporter for The New York Times, and Matthew Cooper, Time magazine's White House correspondent, are contesting an October ruling by a federal judge that held them in contempt for refusing to cooperate with federal investigators looking into the outing of CIA operative Valerie Plame in 2003.
Both reporters face up to 18 months in jail. The case has come to symbolize a new era of aggressive tactics by prosecutors toward the media, testing the limits of government power to force journalists to reveal their sources even, in the case of Miller, for a story she never wrote.
Special prosecutor Patrick Fitzgerald has said the testimony of Cooper and Miller is crucial to his investigation, which is entering its second year, and many legal observers have predicted that the government will prevail.
Fitzgerald's case rests on a 1972 Supreme Court decision that requiring journalists to testify before a grand jury does not violate the First Amendment. In that case, the high court held that the public's interest in criminal law enforcement outweighed the right of journalists to protect confidential sources.
At the hearing in the court of appeals for the District of Columbia, two of the judges on the panel seemed to agree that the earlier ruling was applicable to the Plame case. Reagan appointee David Sentelle and Clinton-appointee David Tatel expressed skepticism at efforts by the journalists' lawyer, Floyd Abrams, to distinguish between the two cases.
But Tatel also indicated interest in whether there were separate legal grounds for establishing protection for journalists. He sharply questioned a Fitzgerald aide, Assistant U.S. Attorney James Fleissner, about whether the government should have unchecked power to force journalists to turn over their sources when they convene grand juries.
Tatel noted that a number of states have adopted shield laws protecting journalists since 1972, and that Congress has encouraged the courts to develop legal privileges in special cases. In 1996, the Supreme Court extended an absolute right to psychotherapists to refuse to testify before grand juries about conversations with their patients. Tatel said the legal justification for protecting journalists, under some circumstances, might be stronger.
It is unclear when the court will issue a final ruling.
Afterward, Abrams declined to speculate on how the court might act. He said the idea of even a "qualified privilege" for journalists "would be a significant advance over current law."
The Los Angeles Times is a Tribune Publishing newspaper