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Thursday, February 17, 2005

Who Leaked?

The DC Circuit Court of Appeals, per Judge Sentelle, affirmed a District Court ruling that held three journalists in civil contempt for refusing to give evidence in response to grand jury subpeonas. I have not read the entire opinion, but what jumps off the page first is that THIS IS AN EASY CASE. It's easy because the Supreme Court decided Branzburg and that case held that no First Amendment privilege- and maybe also held no common law privilege - existed in such a case. Branzburg involved a case where the gub'ment wanted to know who the reporter saw "smoking drugs" and "getting high." An utterly absurd case, which goes to show again why this is an easy case. Here, we have the Department of Justice investigating a potential high-level leak of classified information, possibly pertinent to national security. So clearly, the interest of the government here is much greater than in Branzburg. Now, the common law privilege and due process and other arguments made by the esteemed Floyd Abrams seem to me as grasping at straws: he knew he was losing, but might as well try as many arguments as possible. So the case seems easy.

That's a first glance. Now, what seems more interesting is that on a panel of three Judges, there were 4 opinions! Time to figure out what is going on here. Oh, and as an aside, there is an interesting discussion of where we get our precedential law from when decisions are 5-4 and Justice Powell/O'Connor (they seem to me to be the same person) writes a separate concurrence: in short, does that opinion control?

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