Miller's Parting Nonsense
Well, it's official. Judith Miller and the New York Times have parted ways. Miller demanded, as a condition of her severance, that the Times give her one last opportunity to air her side of the story. The Times reluctantly agreed. Now, in a final act of spite, Miller has scooped the Times by publishing her farewell letter on her own website. Here's how it begins:
This is, of course, complete rubbish. It astounds me that Miller continues to frame the issue this way.
First, as a factual matter, Miller was not protecting the identity of a confidential source. Fitzgerald subpoenaed her to testify about her conversations with Scooter Libby, not some mysterious Deep Throat. Fitzgerald knew exactly who her source was and, in fact, that source had already testified several times about the very conversations Miller claims to have been protecting. You can't claim privilege when the other party has already spilled the beans. If, for example, a client testifies about a conversation he had with his attorney, he thereby waives the attorney-client privilege. The attorney can't continue to invoke it. The same goes for the other privileges Miller describes.
Moreover, it makes no sense whatsoever for Miller to say she went to jail "to dramatize the need" for a federal shield law. The judge who found Miller in contempt of court held that a journalist-source privilege did in fact exist under federal common law. He nevertheless held that Miller's situation did not fit within that privilege. That was clearly the correct ruling. So even if there had been a federal shield law on the books, it would have changed nothing. Why? Because privileges are not absolute. There are exceptions to every recognized privilege. For example, a psychotherapist must break privilege to protect others from harm. Perhaps the best analogy, though, is the crime-fraud exception to the attorney-client privilege. If someone seeks legal advice for the purpose of facilitating a future or ongoing crime, that conversation is not privileged. This is true even if the attorney was merely an unwitting pawn.
Privileges are recognized by the law in order to facilitate communications that society deems valuable. All privileges have carve-outs for situations in which they either don't make sense or are trumped by something society values more, such as the prevention of crime. Any journalist-source privilege, whether recognized at common law or codified in a shield law, would contain a carve out for the very situation Miller found herself in, where the communication she was a party to may well have constituted a crime (for more on this point, see these previous posts).
Miller's position, therefore, is both factually and legally baseless. She went to jail not to protect the identity of a confidential source, but to protect a known source from being exposed as a perjurer. Not only that, but she did a piss poor job of it. The person she was protecting has now been indicted on five felony counts based in large part on her testimony. Miller can't have it both ways. She can't stubbornly insist that her decision to go to jail was based on important principles while at the same time refusing to acknowledge that her eventual decision to cut a deal proved to be disastrous for the very source she claimed to be protecting. She was either wrong to go to jail in the first place, or she was wrong to leave it.
On July 6 I chose to go to jail to defend my
right as a journalist to protect a confidential
source, the same right that enables lawyers
to grant confidentiality to their clients, clergy
to their parishioners, and physicians and
psychotherapists to their patients. Though 49
states have extended this privilege to
journalists as well, for without such protection
a free press cannot exist, there is no
comparable federal law. I chose to go to jail not
only to honor my pledge of confidentiality, but
also to dramatize the need for such a federal law.
This is, of course, complete rubbish. It astounds me that Miller continues to frame the issue this way.
First, as a factual matter, Miller was not protecting the identity of a confidential source. Fitzgerald subpoenaed her to testify about her conversations with Scooter Libby, not some mysterious Deep Throat. Fitzgerald knew exactly who her source was and, in fact, that source had already testified several times about the very conversations Miller claims to have been protecting. You can't claim privilege when the other party has already spilled the beans. If, for example, a client testifies about a conversation he had with his attorney, he thereby waives the attorney-client privilege. The attorney can't continue to invoke it. The same goes for the other privileges Miller describes.
Moreover, it makes no sense whatsoever for Miller to say she went to jail "to dramatize the need" for a federal shield law. The judge who found Miller in contempt of court held that a journalist-source privilege did in fact exist under federal common law. He nevertheless held that Miller's situation did not fit within that privilege. That was clearly the correct ruling. So even if there had been a federal shield law on the books, it would have changed nothing. Why? Because privileges are not absolute. There are exceptions to every recognized privilege. For example, a psychotherapist must break privilege to protect others from harm. Perhaps the best analogy, though, is the crime-fraud exception to the attorney-client privilege. If someone seeks legal advice for the purpose of facilitating a future or ongoing crime, that conversation is not privileged. This is true even if the attorney was merely an unwitting pawn.
Privileges are recognized by the law in order to facilitate communications that society deems valuable. All privileges have carve-outs for situations in which they either don't make sense or are trumped by something society values more, such as the prevention of crime. Any journalist-source privilege, whether recognized at common law or codified in a shield law, would contain a carve out for the very situation Miller found herself in, where the communication she was a party to may well have constituted a crime (for more on this point, see these previous posts).
Miller's position, therefore, is both factually and legally baseless. She went to jail not to protect the identity of a confidential source, but to protect a known source from being exposed as a perjurer. Not only that, but she did a piss poor job of it. The person she was protecting has now been indicted on five felony counts based in large part on her testimony. Miller can't have it both ways. She can't stubbornly insist that her decision to go to jail was based on important principles while at the same time refusing to acknowledge that her eventual decision to cut a deal proved to be disastrous for the very source she claimed to be protecting. She was either wrong to go to jail in the first place, or she was wrong to leave it.
posted by A.L. at 11:20 PM
3 Comments:
Anon Lib, great post.
I'm a proud graduate of Columbia Law as well. Unlike you, I grew up on East Coast and moved West Coast. Wondering if we went to law school together.
In any case, your explanation of privileges and when they can and should be breached, plus highlighting in clear and concise language the fallacy of Judith Miller's [s]career rehabilitation attempt[/s] defense of privilege, was fantastic.
--Saugatak
Just saw Judith Miller on Larry King tonight. She is one scary, twisted sister. She comes off as a sweet person, but one who doesn't really give a sh** about the gravity of the indictments made by Fitzgerald and team. She's a GOPer all the way!
I was sorry she got the whole hour on Larry's show.
recently injured (minor head injuring requiring 5 staples) at a 'big-name' water theme park, due to the park's negligence. They have already made clear that they are handling the medical bills, and after all of the bills are in- "we will talk". What should i expect or how should this be handled on my end? I do not want to be unfair or "milk-it", but it was a bad experience with a lot of pain, and a day lost with my son that i have 4 days a month.....
Post a Comment
Links to this post:
Create a Link
<< Home