Waivers and Grand Jury Testimony

[joemurphy]

I just finished watching PBS's Washington Week in Review - a show that ordinarily features a roundtable of journalists that give reports on the weeks events. It's a lot tamer and more civil than The McLaughlin Group, but occasionally you hear some interesting thoughts and insights.

Tonight's episode ended with Reid Duffy of Time Magazine doing a report on Judy Miller and Matt Cooper. Duffy touched on the issue of waivers. Apparently Cooper's source (whom almost everyone concedes now is Karl Rove) gave Fitzgerald a written document generally giving any newspaper reporter that the source may have talked to the right to tell the grand jury what was said in those conversations. Duffy referred to this document as a "general waiver" and Duffy said that Cooper didn't recognize it because he feared that it may not have been voluntarily given, or put another way, that it may have been coerced from the source by Fitzgerald.

Duffy stated that Cooper had insisted on a personal and a specific waiver from the source before he would talk. Duffy claims that Cooper got this from the source at the last minute, just before he was about to go into his contempt hearing in front of Judge Hogan.

The WWIR panel ran out of time before discussing the issue further.
But mention was made that one of these "general" waivers had been obtained by Fitzgerald from Judy Miller's source but Miller did not regard it as legitimate, supposedly for the same reasons as Cooper.

If you read the press reports from the contempt hearings, you will know the following:

1. Fitzgerald knows who Miller's source is.

2. That source has executed a "general" waiver allowing reporters to
speak to the grand jury about the reporters' contacts with the source.

3. The source has come forward and has voluntarily cooperated with Fitzgerald.

4. Judge Hogan was bothered by the fact that given all of the above, Miller still would not testify.

As a lawyer, I know that the basic requirement for a waiver to be effective is that it be "knowledgeably issued" and that the waiver be "voluntary". If Fitzgerald asked Rove or any other source to execute a written waiver, unless Fitzgerald was exerting force, fear, or favor on the source in a manner calculated to compel the source to execute the waiver, the waiver would be probably valid.

So again I don't get it. I don't see how Cooper or Miller or any other journalist can refuse to honor a written waiver merely because they, without checking with the source, "suspect" that the waiver "may" have been coerced. Furthermore, if there are legitimate suspicions about the validity of the waiver exist, couldn't either Fitzgerald or Miller eliminate them by simply asking the source (whose name Fitzgerald knows) if the waiver was voluntary or not? I the source is known, he's cooperating with the investigation, and has released Miller from her confidentiality agreement, there is no one being protected and no room for Miller to assert a privilege. I agree with Judge Hogan. "This case is getting curiouser and curiouser."

Any thoughts anybody?

[Geoff R. Casavant]

1. Two points

1. Others more erudite than I have posted threads to the effect that Miller is protecting more than just a source, that revealing her source will show she is far more complicit than we realize.

2. As for Cooper, I expect he was putting up a front and hoping the judge wouldn't have the cojones to actually imprison a "champion of the first amendment." When this proved not to be the case, he caved.

[joemurphy]

2. :Possibly so.

Cooper was going to go to jail, supposedly because he wasn't sure that Rove's "general waiver" of their confidentiality agreement was sufficiently voluntary and because it was too impersonal -- i.e., it didn't mention Cooper by name. Cooper never did talk to Rove before he agreed to testify. Supposedly their respective lawyers talked and that was personal enough for Cooper.

Miller's a different story for the reasons outlined in my first post. Her paper, the New York Times, wants to make her out to be a martyr to American journalism. After Jason Blair, Miller's phony reporting on the Iraq WMDs, and numerous other scandals, I, sadly, don't really trust the NYT on much of anything anymore. Their standards of journalistic integrity have hit rock bottom in my book.

As for Miller, the rumor is that Fitzgerald is very pissed off about her and is considering holding her in "criminal" (as opposed to "civil") contempt. As far as I can see, I can't say that I blame him.