Thursday, May 26, 2005

I have invoked the reporter's privilege of the First Amendment of the United States Constitution

As my several readers of this blog know, I often write about the Valerie Plame grand jury, and First Amendment issues. The latter are hardly abstract subjects for me. I have a dog in this fight.

I have on more than one occasion in the past been subpoenaed to testify regarding sources. One such instance is described in this post on

In another instance, an overzealous assistant U.S. Attorney in Miami, named Frank Tamen, was determined to find out who leaked information to me from a grand jury investigation he had headed... and empaneled a entirely brand new, second federal grand jury to investigate who leaked me information from his first grand jury. (Hopefully, the poor man is either retired, or not reading this blog. Otherwise, he might empanel an entirely new and third grand jury to investigate the leak about the second.)

Thankfully, in that case, Tamen's investigation went nowhere. My sources remained hidden and safe. And Main Justice, as it is known, shut him down: Justice Department officials in Washington D.C. at the time weighed the potential damage to the First Amendment and expense to the taxpayer and instructed the him to stand down. Back then there were actually law enforcement officials who respected the First Amendment.

Now to my more recent news:

Only this last week, I firmly asserted my First Amendment privilege. The papers aren't yet formally filed in court. Rather for the time being, I invoked my privilege via the U.S. Postal Service in response to demands for information in what are known as "interrogatories" from some very, very mean lawyers, in turn, representing some other very, very bad people. (They represent private parties, and not the U.S. government.) The trial judge will consider the matter a long time from now. In the meantime, I will attempt to continue to enjoy my freedom the rest of the summer, First Amendment and otherwise.

Here is exactly what I asserted in the court papers: "[Waas] objects to these Interrogatories to the extent that they request information covered by reporters privilege of the First Amendment of the United States Constitution and the Free Flow of Information Act of 1992, D. C. Code 16-4701-04."

If Floyd Abrams reads this blog, call dude. In that I am not exactly a big time reporter who works for Time magazine, and Floyd Abrams doesn't readily return my calls....

Cousin Harvey.... call dude. I haven't heard from my cousin Harvey since he moved to Georgia, and am not certain as to whether he is still actively practicing law. Indeed, the last time we spoke he spoke of giving up the law entirely to farm instead. I am not even sure he is still licensed to practice in the District of Columbia. But he is family.

Cous, I know that you are busy and have plenty of other things going on in your life. But Floyd Abrams is just not returning my calls. And you owe me, dude. Remember that time we drove all the way to Madison, Wisconsin for that bat mitzvah and I entertained your three year old in the back seat of the Minivan for the entire trip, without any complaint whatsoever? I am now calling in all my chits!

Although disposition of my invocation of the First Amendment is a long way from now, the case is likely to lead to new case law regarding the reporter's privilege. I will keep y'all informed as the case proceeds, right here on this blog. (I know that I just linked to my own blog once again, but nobody else seems to be linking to me.... *sadness* Another shout-out to Bidisha Banerjee!)

Regarding the Valerie Plame affair: A new column by former Nixon White House counsel John W. Dean argues that Matt Cooper of Time and Judith Miller of the New York Times should disclose their sources to special counsel Patrick Fitzgerald. He writes:

"[C]ooper and Miller will very probably have to decide whether to defy the law-- and go to jail-- or testify before the grand jury. They should testify: What a shame it would be if they were to go to jail to protect law-breakers in the White House."

"Indeed, if they do not testify, they are arguably complicit in the crimes that the Special Counsel believes have occurred. There must be a line: At some point, in protecting sources committing crimes, newspersons themselves become complicit in those crimes. Protecting a source whom a reporter learns has lied (or obstructed justice) strikes me as being across the line. If Miller and Cooper have not crossed the line, they certainly have their toes on it."

I couldn't disagree more, as readers of this blog already know. (It is true once again for anyone who just clicked on to that link that I again just linked to my own blog, but with dwindling readers, any link at all helps-- which just once more raises the question whether this is a blog or a parody of a blog.)

John Dean should know better than anyone: If it were not for confidential sources, and a reporter's ability to protect them, Richard Nixon quite possibly might never have been forced to resign his presidency. And Nixon might have been successful in having someone else be the fall guy for Watergate. If my reading of history is correct, the person that Nixon hoped to take the fall for him was an ambitious White House counsel named John Wesley Dean.