Ted Olson Joins Floyd Abrams In Time-Times Case

It was quiet on Floyd Abrams’ side of the thick door leading into the television studio. On the other side, Jon Stewart was warming up the young, rowdy crowd perched in the bleachers to watch the live-to-tape production of The Daily Show. The famed First Amendment lawyer was waiting in the wings, pacing, jangling the keys in his pants pocket. Mr. Stewart had nailed the crowd again: The door was pushed open and a tidal wave of raucous laughter crashed through. That warm-up is a tough act to follow, a reporter pointed out.

“It’s easier than doing the Supreme Court,” Mr. Abrams said, flashing a grin so wide that his lip line curled at its edges into a grimace.

Minutes later, there he was-nuzzling up to Mr. Stewart from the couch arm. A couple of clever lines were all he needed to get the audience going now-even if the topics were as dry as the 1798 Alien and Sedition Acts. It “made it a crime to say things that you routinely say-like anything bad about the President of the United States,” he told Mr. Stewart, pausing conspiratorially for emphasis and drawing that grin up again. “Or the Congress.” It was enough to charm the crowd.

Twice during the interview, Mr. Stewart tipped the red, white and blue cover of Mr. Abrams’ new book, Speaking Freely, the lawyer’s first, to the cameras.

So why didn’t Mr. Abrams bring up the case that could have him making another appearance before the Supreme Court, for what would be the 15th time? For about a year now, when not putting the finishing touches on his book, he’s been defending Time magazine White House correspondent Matthew Cooper and Times woman Judith Miller against a charge of contempt in a federal grand-jury investigation. The government wants to know who leaked the name of C.I.A. operative Valerie Plame to the press, and Mr. Cooper and Ms. Miller aren’t telling.

After having his arguments stuffed twice in federal courts in Washington, D.C., Mr. Abrams will file a petition in the next two weeks asking the Supreme Court to review this case.

Since writing his book, which reflects on his 40-plus-year career, he’s been thinking in what he called “global-personal terms.” His latest case-which pits the White House against media titans Time Inc. and The New York Times-is the next chapter.

That very day, the legal team representing the two reporters made a major announcement: Mr. Cooper and Time would be splitting off from Mr. Abrams, Ms. Miller and The Times and using a different lawyer. A very different lawyer: Theodore Olson, the former Solicitor General and member of the Bush faithful, who won the President his office by arguing Bush v. Gore before the high court (one of his 41 Supreme Court appearances).

There are plenty of strategic reasons for the move. Mr. Olson’s conservative bent will surely appeal to the court. A man whose wife, the lawyer and conservative TV commentator Barbara Olson, was killed on the flight that crashed into the Pentagon on Sept. 11, 2001, Mr. Olson has hardly favored restrictions on the right of the justice system to ferret out security risks.

Still, it was impossible not to wonder whether Mr. Olson’s new clients hadn’t lost confidence in the First Amendment’s chief Rottweiler, Mr. Abrams.

Earlier in the night, in the backstage room that The Daily Show had reserved for him, Mr. Abrams, 68, flicked on MSNBC to catch his 38-year-old son Dan’s show, The Abrams Report, as he does every night. His son-who shares his father’s lively, deep-set eyes and signature smile-respectfully anchored a segment discussing the tabloid fodder of the night: the news that Michael Jackson’s ex-wife was going to testify against him.

“I think I have my own problems right now,” Mr. Abrams said.

Bedrock Protections?

The “Matt and Judy” case, as Mr. Abrams calls it, has its roots in a July 6, 2003, Op-Ed published in The Times by retired Ambassador Joseph Wilson IV, in which he argued that the administration relied on faulty intelligence when it claimed that Saddam Hussein tried to buy uranium ore in Niger. That claim by the government was an important part of the case the Bush administration built for the war in Iraq.

Eight days later, conservative columnist Robert Novak published a report in which “two senior administration officials” attempted to discredit Mr. Wilson’s findings. The blind quotes suggested that Mr. Wilson had gotten the assignment because of a special connection he had with the ever-disgruntled C.I.A.: His wife, Valerie Plame, Mr. Novak wrote, was “an agency operative on weapons of mass destruction.”

The column undermined Mr. Wilson’s credibility, since the C.I.A. was known to be contemptuous of the administration’s arguments for the Iraq war. But close watchers of the insiders’ game that has come to be known as the Plame affair read the entire drama differently. The column had destroyed Ms. Plame’s career as an agent. Was it retribution against Mr. Wilson for having written the Times Op-Ed piece in the first place?

Then Time magazine posted an online article titled “A War on Wilson?”, in which it mentioned-albeit somewhat skeptically-that “some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson’s wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.”

Two months later, citing the 1982 Intelligence Identities Protection Act, the Justice Department announced that it was pursuing a criminal investigation into who had leaked the name of Ms. Plame. That winter, Patrick Fitzgerald, the Chicago U.S. Attorney who was appointed special prosecutor in the matter by the Justice Department, convened a grand jury in Washington, D.C. That spring, he began subpoenaing reporters who he believed could provide evidence.

For Mr. Abrams, that’s when it began. He received a call in his financial-district office from Robin Bierstedt, deputy general counsel at Time Inc., who told him that Mr. Fitzgerald was planning to subpoena Mr. Cooper.

“I flew out to Chicago and made an appointment to meet with Pat Fitzgerald, to urge him not to go down this road,” Mr. Abrams recalled over lunch at an airy Upper East Side brasserie. “And he told me that he thought about it very seriously, but that he wouldn’t be going down it if he wasn’t prepared to go to the end of the road.”

Last summer, word slowly leaked out that at least three of the other four reporters who had information sought by the prosecutor had accommodated him to varying degrees. The fourth, Mr. Novak-the writer who first published Ms. Plame’s name-refuses to say whether he has been subpoenaed.

But Walter Pincus and Glenn Kessler of The Washington Post, and Tim Russert of NBC News, seem to have gotten the all-clear.

Journalists at places like The Washington Post are not known to throw source anonymity aside lightly. Mr. Abrams’ and The Times’ persistence in defending Ms. Miller, and brooking no compromise, has led some to wonder whether The Times is choosing the wrong battle.

“I think the reality is that, just as they don’t know what deals Judy made, I don’t know what their arrangements were, and I’m reluctant to start even suggesting that other journalists threw in the towel. I did say, and do mean, that we would be in a stronger position if we had other journalists aligned with us and in the same position at the same time. Yet it does irritate me when I sometimes hear it said that other journalists are asking, ‘Why don’t we put this behind us? Why don’t we work something out?’ There are circumstances in which things can’t be worked out, and that’s been the reality here,” Mr. Abrams said.

Mr. Abrams was retained by The Times to defend one of the few remaining targets of the grand-jury investigation. Ms. Miller, like Mr. Cooper, had been subpoenaed-but unlike him, she had never even written about what she’d learned. So the special prosecutor wanted to know what she’d gathered in her reporting.

In October, Judge Thomas Hogan held Ms. Miller-and then, a week later, Mr. Cooper-in contempt of court. The sentence: up to 18 months (the length of the grand-jury term) in federal prison.

“This Court need not search far to find a case which directly addresses the issues currently before it,” Judge Hogan wrote in the memorandum opinion that held Mr. Russert and Mr. Cooper in contempt initially. “In Branzburg v. Hayes, the United States Supreme Court squarely addressed the application of a reporter’s privilege in the context of a grand jury …. The facts of this case fall entirely within that core-a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection …. The Branzburg opinion’s holding that there is no First Amendment or common law reporters’ privilege in the grand jury context plainly encompasses journalists asked to reveal confidential sources and information.”

Mr. Abrams consolidated their cases and appealed them to the Court of Appeals for D.C. A three-judge panel unanimously upheld the ruling, citing again the 1972 ruling in Branzburg v. Hayes and determining that Ms. Miller and Mr. Cooper-despite the promises they may have made to sources to maintain their confidentiality-were legally bound to cooperate with the grand jury. Last week, the full panel of the court declined to reconsider the decision.

On May 10, two petitions for a writ of certiorari (i.e., a decision by the Supreme Court to hear the case) will be filed, giving the issue an extra 30 pages of airtime-one by Mr. Olson’s colleagues (he is prevented from putting his name on any briefs against the government until July 2005, the one-year anniversary of his departure from the Solicitor General’s post), and the other by Mr. Abrams. This wasn’t how it was supposed to be, but Mr. Abrams says it’s for the best.

“He’s a lawyer of enormous skill, with a lot of arguments in the Supreme Court on subjects other than the First Amendment, and he has a great deal of credibility with the court. Second, it’s helpful to have another overview of the subject presented to the court, even if we agree on just about everything,” Mr. Abrams said backstage before the Stewart show.

Mr. Olson was traveling and unavailable for comment on taking the case, but his assistant, Helen Voss, called to tell The Observer that Mr. Olson “has the utmost respect for Floyd.”

The initial statement issued by Time Inc. general counsel John Redpath said that they have been “superbly represented by America’s premier First Amendment expert, Floyd Abrams,” adding, “But given the fact that Floyd is also representing Judy Miller of the New York Times in this matter, we thought it would be helpful to add a second voice to the team.” In a second, revised statement sent later in the day, the clause mentioning Ms. Miller was removed, suggesting that Time didn’t want to call attention to any disagreements over how the individual cases had been handled.

There have always been differences between the cases of Ms. Miller and Mr. Cooper. Mr. Cooper was one of the writers of Time’s online article; he also cooperated briefly with the prosecutor-an effort which didn’t seem to go as planned, since he was asked to return for more questioning (at which point he refused and was held in contempt).

But there have been bigger differences between their cases and, say, the recent case of The Washington Post. Mr. Pincus and Mr. Kessler, the two Post reporters who were asked to testify, found ways to accommodate the prosecutor’s requests.

For instance, Mr. Pincus confirmed the content of his conversation without ever having to tell the prosecutor the source’s name, while Mr. Kessler confirmed that he hadn’t discussed Ms. Plame or Mr. Wilson with Lewis (Scooter) Libby, Vice President Dick Cheney’s chief of staff.

Sources said the question was whether this case was the right one to expand the definition of those freedoms under Branzburg. And given this conservative court, wasn’t it possible that a test of Branzburg could lead to more-not fewer-restrictions on the freedom of the press?

“You would have preferred a case like Watergate to be the one where the issue would be raised,” conceded Laura Handman, a prominent First Amendment lawyer. “But the D.C. circuit’s decision in the Miller-Cooper case impacts the use of confidential sources in all contexts.”

And Ms. Miller is hardly the most fitting poster child for First Amendment rights. Her own reporting has been dogged by her admission that she allowed Army personnel to vet at least one piece she wrote while “embedded” in Iraq in exchange for a scoop. Reporters and press critics quickly came to view Mr. Abrams’ cause as the resurrection of Ms. Miller, not the freedom of the press.

“My view, like Floyd’s, is that you can’t be a little bit pregnant,” Ms. Miller said when asked about the case. “I took the position that we just can’t cooperate with these kinds of inquiries …. In these times, these difficult times, we need that kind of protection. I don’t think that journalists are an arm of law enforcement.”

But there’s a certain nervousness on the part of those who have been watching Mr. Abrams in his current Sisyphean task.

“He has dedicated his career to developing protections of the press, this being one of them-a very critical one,” Ms. Handman said. “This is one of the bedrock protections. It would be sad if it eroded with him leading the charge.” She added: “I’m not saying anyone could have avoided it better than he, and I think it will be preserved in other contexts, like civil suits.”

“I think he’s handled it as well as one can handle it,” said Victor Kovner, another senior statesman in the First Amendment bar. “This is a very major case … but one of a great many in his illustrious career.”

Mr. Abrams received his introduction to First Amendment concerns in the late 1960’s and early 1970’s, as a litigation associate at Cahill, Gordon and Reindel, a firm that was making its name in First Amendment work. (The firm, where he is now the marquee partner, ranks second in the country in terms of profits per partner, reported by The American Lawyer in 2003 as an average of $2.4 million.)

Journalists for his firm’s client, NBC, started receiving “subpoena after subpoena” to appear before grand juries and reveal details about their newsgathering (in Speaking Freely, he writes that between 1969 and July 1971, NBC and CBS received 122 such subpoenas).

Near the end of 1971, the Supreme Court agreed to hear a case that would attempt to resolve the question whether a legal protection exists for the promise that journalists make to their sources every day-to protect their confidentiality.

The case was Branzburg, the one whose issues Mr. Abrams is trying to revive. Paul Branzburg, a young reporter for the Louisville Courier-Journal, wrote exposés about the hashish and drug trade. He was hauled before a grand jury by a district attorney and refused to name his sources for the pieces.

Mr. Abrams, on behalf of NBC, filed an amicus brief with other major news organizations, including The New York Times and the Chicago Sun-Times, seeking First Amendment protection for journalists and their confidential sources. Back then, there seemed to be more interest on the part of news organizations to get involved in the case.

“In fact, the law about whether the press has any constitutional right to gather news was nonexistent,” Mr. Abrams recalled over lunch. “In that time, briefs tended to really go back to first principles, because there was no place else to look. If a lawyer can’t cite cases, he has to cite something, and the thing here was a sort of cri de coeur: It can’t be that a First Amendment which says ‘Congress shall make no law … abridging the freedom of speech, or of the press’ doesn’t give any protection to the very newsgathering process without which the promise of a free press is negated.”

While the Supreme Court found against Paul Branzburg in a 5-4 ruling, Mr. Abrams had moved on to successfully defend The New York Times (second-seating his former Yale Law mentor, Alexander Bickel) against the administration in its decision to publish the government’s secret history of the Vietnam War.

“On my thirty-fifth birthday, nine days after the Supreme Court decided the case, my first toast was to Hugo Black,” Mr. Abrams writes earnestly in his new book, referring to the Supreme Court justice who wrote the majority opinion.

Playing The Fool

Over lunch at Demarchelier, on 86th and Madison, Mr. Abrams said that choosing the right case is beside the point. Cases choose people.

“This was not an effort by Judy Miller to go to court, or Matt Cooper to go to court, and say, ‘We’re not satisfied with what’s going on in the judicial system of the United States about confidential sources,'” he said with the kindly, even temper of a law professor. “They’ve been hauled into court against their will, at great personal risk to themselves, and their lawyer is doing the best job he can to try to protect them.”

Mr. Abrams clasped his hands in front of him, tapping his fingertips together like a metronome.

It was Erev Pesach, and he had obligingly come straight from the morning service at Park Avenue Synagogue, a Conservative (faith-wise) congregation. He looked a bit the way basketball coaches look when they don suits instead of jerseys, then spend a few years on the sidelines wearing suits like the sharp, navy blue one he wore that day: vigorous, tall, both athletic-looking and a little lumpy. His hair forms a fringe of faded gray like a bed skirt around the back of his pink pate: his wide, occasionally impish face has a little bit of Wallace Shawn about it.

When his son Dan and his daughter Ronnie were children, they would ask Mr. Abrams to sit by their beds and tell them about his cases instead of reading bedtime stories.

“We knew it would make him stay longer,” said the younger Mr. Abrams. (Ronnie, 36, also caught the legal bug: She’s an assistant U.S. Attorney in the Southern District, the acting head of the general-crimes unit of the criminal division.)

The elder Mr. Abrams and his wife of 41 years, Efrat, continue to live in the same Upper East Side co-op that they moved into in 1970, when Dan was 4 and Ronnie was 2. Dan attended Riverdale Country Day School; Ronnie, the Dalton School.

But Mr. Abrams’ own childhood was not this picture of sartorial comfort. He was born in 1936, within walking distance of Yankee Stadium, to a mother who had emigrated from the outskirts of Minsk, Russia, and a father who ran a successful artificial-flower business. It was a liberal sort of circle where the only questions were whether to support the Progressive candidate for the Presidency, Henry Wallace, or the Democrat, Harry Truman. Mr. Abrams supported Truman-“at 12,” he joked. A precocious student at Forest Hills High School, he graduated-after skipping a few grades-at age 15.

At Cornell, as an American government and history major, he wrote a senior thesis adopting Supreme Court Justice Felix Frankfurter’s view that the press was often a nuisance, arguing that, “Like England … America should make it criminal for the press to publish any information prior to a trial that could interfere with a defendant’s right to a fair trial.”

“That I would be arguing precisely the opposite in the United States Supreme Court 20 years later was unimaginable,” he writes.

And what about now? Was the White House after his clients?

“I don’t think the Judy Miller case is political,” he said. “The reason I don’t think that is that I have a lot of trust in the special prosecutor on a personal level. He’s a serious guy-by all accounts, someone who would not yield to political temptation.”

And indeed, Mr. Abrams is still holding an ace or two.

In February, the week after the D.C. Court of Appeals ruled that Branzburg’s mandate was clear-that reporters have no right to withhold the identities of their anonymous sources from the justice system-Judge Robert Sweet of Federal District Court in Manhattan made an exception. He decided that Mr. Fitzgerald, acting in his capacity as U.S. Attorney in Chicago, couldn’t subpoena the phone records of Ms. Miller and her colleague, Philip Shenon, for evidence in another grand-jury investigation. That probe sought to determine whether two Islamic charities were tipped off to impending raids by the government.

Judge Sweet concluded that there is a “qualified First Amendment privilege” which “protects reporters from compelled disclosure of their confidential sources.”

Mr. Abrams will be using this to argue that the Supreme Court should weigh in on what appears to be a conflict in the federal courts.

He’ll also be unfurling 31 state statutes before the Supremes, and 18 examples of decisions from state judges, which he said constitute a national consensus on protection for journalists concealing their confidential sources that should lead the Supreme Court to establish the same rule for federal courts.

Finally, he will argue that his side has yet to see the evidence in support of Mr. Fitzgerald’s claim that the government has an overwhelming need for the information Ms. Miller is keeping to herself.

“Almost all the judges in the Pentagon Papers case thought bad things would happen as a result of publication-even the most liberal judges thought that. On one level, it’s hard not to think it when the government tells you that. A judge with a decent sense of humility can’t help but ask himself or herself, ‘How can I second-guess what the Defense Department-or Homeland Security, or the C.I.A.-is telling me?’ And yet, one of the great contributions of the First Amendment is that it leads to an enormous sense of skepticism, when the government does come to court, about the essentiality of the limitation on speech that the government is asking for.”

“He’s passionate about democracy and self-government and the ability of people to make their own decisions,” said Devereux Chatillon, a former colleague. “It’s sort of the core of what freedom is.”

In his book, Mr. Abrams writes about some of the cases that have brought him attention: Defending Landmark Communications, owner of the Virginia Pilot, which had been convicted of a misdemeanor for publishing a true report about a confidential judicial panel; then defending NBC against a libel suit brought by Wayne Newton, ABC against anti-Communist Victor Lasky, and the Brooklyn Museum against Mayor Giuliani-and, unsuccessfully with Ken Starr, against proposed campaign-finance reforms.

“It is not uncommon for lawyers to persuade themselves of their clients’ virtues,” he writes in the final chapter. “Sometimes that is harmful: A lawyer who is too close to a client may be the same fool the client would be if he were representing himself. On other occasions, such advocacy is both genuine (the lawyer means it) and useful (the lawyer can speak with special zeal on behalf of the client). I think my own evolution was the latter, not self-induced, but the product of what I had learned.”