Journalist Privilege and the Valerie Plame Case

Over at Balkinization, you might be interested in reading my post about the grand jury subpoena for the names of the White House officials who leaked Valerie Plame’s identity, outing her as a CIA agent in retaliation for her husband’s critique of Bush’s claims about weapons of mass destruction in Iraq.  Three journalists are involved – Matthew Cooper (Time Magazine), Judith Miller (New York Times), and Robert Novak (obnoxious pundit).  Actually, the subpoena only involves Cooper and Miller; for some reason that has yet to be stated, Novak is not facing any pressure to divulge the sources.  Cooper and Miller refused to divulge their sources; the court rejected their claim for journalist privilege; and the Supreme Court denied cert.  I argue that the rejection of their journalist privilege claim was correct as a matter of doctrine.  As a matter of policy, I take on Geoffrey Stone’s views about the appropriate scope of the privilege.  I argue that it should be broader than what Stone proposes, but that even under this broader version of the privilege, Cooper and Miller should still lose.  Also check out Dan Markel's post discussing my argument here.