Friday :: Jul 8, 2005

Thoughts on privilege

by dj moonbat

I had some thoughts on privilege that eriposte's earlier entry spurred. They would only come together cohesively over a looong post, so I will instead present some data points:

  1. In the abstract, strong public policy interests militate in favor of a reporter's right to cover their sources. In the particular case of Judith Miller's protection of [Rove], those policy interests are, umm, substantially less convincing.

  2. Rule 501 of the Federal Rules of Evidence tells judges to determine privilege according to common law principles and the light of reason. Common law has not established a blanket protection of sources; only a blanket protection would have helped Miller, because this case is easily distinguished from a standard whistleblower case.

  3. The Federal Rules of Evidence do not cover grand jury proceedings. Rule 1101. She would have had to testify even if there was a courtroom privilege, in the absence of some other source of law protecting her.

  4. Other sources would include the Fifth Amendment, if Miller herself had committed a crime, or the First Amendment, if the law said that source protection was a penumbral right under the First. Branburg v. Hayes held that it is not.

  5. Other sources could also include a "shield law" such as those in many states. Few, if any, of those state shield laws are absolute in their coverage. Under most, Miller still would have been forced to testify if Fitzgerald had no other way of getting the information and had solid circumstantial evidence of a crime and a cover-up.
So, look, I would like to see a pretty stiff protection afforded to journalists under the law. But that protection clearly did not exist prior to Miller's case. And Miller's case clearly did not supply the factual predicates upon which a sound common law protection could have been created. So, yeah, it's kind of a bummer to see "journalists" going to jail for keeping their sources secret. But it is not in any way counter to the existing law, and it would have been a lousy test case for extending that law to new situations.

So relax; enjoy watching the bitch in the slammer.

UPDATE: I went digging around in the Federal Rules of Criminal Procedure, which govern grand juries. They make no mention of any privileges at all. So where do any privileges come into play in grand juries? Surprisingly, it appears to be solely common law, and although the Appeals Court in Miller's and Cooper's cases was split on whether reporters had any privilege under the common law, they all emphatically agreed that Miller would not fall within it.

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