After Branzburg, the Justice Department promised, in effect, not to abuse its power to subpoena reporters. Department guidelines instruct federal prosecutors to seek only the minimum of reporters' testimony essential to resolve a case, when all other alternatives have been exhausted.
But, as Hogan noted in his rulings, those guidelines are voluntary and do not give reporters a right to sue if they think the department has violated them. Hogan added that he believed that Patrick J. Fitzgerald, the special counsel in charge of the Justice Department's investigation, had acted in accordance with the guidelines anyway.
In a brief for Cooper and Miller filed with the D.C. Circuit, attorney Floyd Abrams argues that Hogan misinterpreted Branzburg, because one of the five justices in the majority, Lewis F. Powell Jr., wrote a concurring opinion that seemed to say courts should weigh claims of a reporter's privilege on a case-by-case basis.
But Fitzgerald counters in his brief that Powell meant only to emphasize that reporters could be protected from bad-faith prosecution, of which there is no evidence here.
Abrams notes that much has changed since Branzburg. First, the court seemed to base its decision in part on the fact that only 17 states had shield laws at the time.
Also, in 1975, Congress gave the federal courts broad power to create new testimonial privileges, a power the Supreme Court used in 1996 when it said that social workers could refuse to testify about what their psychotherapy patients tell them.
"We say that [ruling] tracks with the reporter-source relationship," Abrams said in an interview. He is supported on this point by a friend-of-the-court brief from 23 major news organizations, including The Washington Post.
"In the particular situations that these journalists found themselves, there was no option consistent with protecting their journalistic integrity but to fight back as hard as they could," Abrams said.
Some say that the press's position in the Plame case would be stronger if not for the fact that it started with a government leak allegedly calculated to get even with an in-house critic, Wilson -- not with a leak from an in-house critic intended to expose government wrongdoing.
"This is not to say that the sources should be revealed," said David Rudenstine, dean of the Benjamin N. Cardozo School of Law. "But here the sources that are at stake represent the government using its power to punish the leaker. . . . It's quite different from the Watergate model."
Abrams, however, argues that reporters should have the right to protect sources no matter what kind of leak they publish.
"If Novak were before the court, too, there couldn't be a different result for him," Abrams said.
But Novak is not before the court, and a key question in the case is why he is not, because he presumably knows the identities of the original leakers.
Neither he nor Fitzgerald has been willing to say whether Novak has even been subpoenaed or, if so, whether he has cooperated.
