Wilson vs. Taricani

For us separation-of-powers enthusiasts, there is an important distinction between the Plame-Wilson case and the Taricani case. In the Plame-Wilson affair, journalists are being asked to tell what they know about the violation of an actual law. It is illegal -- according to a law passed by Congress, signed by the President -- to leak the identity of a covert operative.

In the Taricani case, on the other hand, there was no law broken. There is only a violation of an ad-hoc rule created by a judge.

Threading the Needle of Rights and Hauteur

As the Providence Journal editorial board recently put it, when it comes to the Taricani affair, "there are no heroes here." Perhaps this is a glass-half-empty assessment, but the entire controversy has a feel more of competing negative claims than of balancing strong arguments.

Writing of the significantly different, but inherently related, Plame affair, Jonah Goldberg expresses one side thus:

But in all of this debate, what people seem to be overlooking is that journalists aren't always analogous to witnesses to crimes. Sometimes they're accomplices. Imagine that a vindictive government official wants to embarrass an opponent by leaking his tax returns. He steals them from confidential files and meets a reporter from the Times in a back alley. The reporter publishes them. It seems to me the reporter isn't a witness, he's an accessory. If it makes it easier to understand the point, imagine instead of tax returns it's plans for a cheap nuclear weapon al Qaeda could make.

On the other side, consider Mark Tapscott:

The Taricani and Miller cases signify a disturbing trend of government officials' resorting to subpoenas and criminal prosecutions to silence confidential sources, who would otherwise provide journalists with documents proving fraud, negligence or outright criminality in government.

Whether we see the line that we must walk as between important rights that we wish not to trample or between slippery-sloping pitfalls that we wish to avoid, the solution by which we tread must cover a variety of circumstances. In the case of Plame-Wilson, the journalists stand between the allegedly wronged couple and the executive branch (in one aspect or another). In the pre-Bevilacqua phase of the Taricani case, the journalist potentially stood between the executive branch and the judiciary itself. How do we balance the various claims of all involved branches (which will always include the judiciary), the journalists, and any other interested parties?

As a preliminary suggestion, intended to be honed through debate, I'd suggest that the law force the involvement of at least two branches of government. In some way or another (perhaps through the representation of the prosecutor), the executive would have to approve of court orders for revealed sources, and the judiciary would have to issue the orders. Perhaps there should be recourse to the legislature if either branch believes the other to be acting in bad faith.

As to who should be eligible to be counted as a journalist, I'm biased, of course, but I'd suggest that the answer be "anybody." The protection ought to flow through the action, not through some ostensibly unique status of the actor. If a person receives information for the purpose of publicizing it — and subsequently behaves accordingly — then it oughtn't matter whether the medium for doing so is given, bought, pursued, or constructed.

Taricani: 6 Months Home Confinement

You've probably heard it elsewhere by now, but Jim Taricani has been sentenced to six months of home confinement.

Taricani's Right to Trial-By-Jury

I was surprised to read in Sunday's Projo that the Taricani case continues.

There is still a fundamental question I have yet to see answered anywhere in public. Did Taricani waive his right to a jury trial in this case? If so, why? If not, how has Judge Torres' managed to skirt the whole right-to-trial-by-jury detail?

An Obvious Plan?

I only caught a few minutes of his radio show while I rushed around, but Dan Yorke seems to think it's obvious that Jim Taricani tried to give Bevilacqua up in his "by chance" meeting with FBI agent Dennis Aiken... without actually giving him up. If that's the case, I agree with Yorke that Taricani's freedom-of-the-press-martyr schtick is nauseating. Still, the problem with that argument is that Taricani gave his source away just a couple of hours before his criminal contempt trial. Yorke attributes that to poor planning; I'm not so sure:

Accordingly, immediately prior to the commencement of the criminal contempt trial, this information was provided to Mr. Taricani and his lawyers by the Special Prosecutor. Once again, the Special Prosecutor requested that Mr. Taricani comply with the Court Order and identify how and from whom he obtained the Corrente Videotape; in particular, to confirm that Mr. Bevilacqua was indeed his source. At Mr. Taricani's request, there was a short delay in the start of the criminal contempt trial in order for Mr. Taricani to review this development with his attorneys. Despite this new information, Mr. Taricani decided to continue to refuse to comply with the Court Order compelling him to identify his source and the criminal contempt trial proceeded as scheduled.

That's from Special Prosecutor DeSisto's description of events (PDF). So, Yorke's explanation must be that Taricani tried to pull a last minute escape through the eye of his legal and social needle, only to push his luck to the utmost when given an opportunity to seal the deal. That's absolutely plausible, I should note, and Yorke has followed this ordeal much more thoroughly and for much longer than I have. But it still seems to me that there's some other element at play.

Freedom of the Press: To Whom Does it Extend?

Eugene Volokh, a blogger himself, has a piece in today's New York Times in which he mentions the Taricani case. However, of more importance is the larger question he seeks to address

Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers....The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Volokh does point out the problem with this everybody-is-a-journalist atmosphere, namely, that anyone can leak anything to anyone who runs a blog and the blogger can cite the First Amendment for protection. Volokh concludes that this can lead to widespread violation of privacy and the like. I'm not sure where we are headed in these interesting times, but it seems as if technology will force us to expand our definition of exactly who is part of the Free Press.

Freedom of the Press: To Whom Does it Extend?

Eugene Volokh, a blogger himself, has a piece in today's New York Times in which he mentions the Taricani case. However, of more importance is the larger question he seeks to address

Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers....The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Volokh does point out the problem with this everybody-is-a-journalist atmosphere, namely, that anyone can leak anything to anyone who runs a blog and the blogger can cite the First Amendment for protection. Volokh concludes that this can lead to widespread violation of privacy and the like. I'm not sure where we are headed in these interesting times, but it seems as if technology will force us to expand our definition of exactly who is part of the Free Press.

Shifting Objectives (?)

Frankly, I just don't know what to make of this:

... special prosecutor Marc DeSisto says in court papers filed this morning that Bevilacqua never asked Taricani to keep his identity confidential and that the defense lawyer urged the reporter more than 2 1/2 years ago to tell DeSisto that he was his source. ...

DeSisto says that last Wednesday, after he subpoenaed Bevilacqua, the defense lawyer admitted under oath that he was the source for the secret FBI videotape that Channel 10 aired on Feb. 1, 2001. He had previously denied to DeSisto, also under oath on Feb. 6, 2002, that he was the source.

So now that DeSisto has found the criminal for whom he'd been searching — a man who has in the interim added perjury to his offenses — the prosecutor takes the law-breaking lawyer entirely at his word on the matter of Jim Taricani's involvement? Odd.

DeSisto argues in the court papers that "any obligation that Mr. Taricani felt to keep his source private should have dissolved upon presentation of the waiver of confidentiality'' in the spring of 2002. But "more egregiously,'' DeSisto contends, instead of complying with his source's wishes...Mr. Taricani specifically asked Mr. Bevilacqua not to reveal his identity.''

Note that "more egregiously." Reading DeSisto's full statement (PDF), it is clearly presented in opposition to the request for leniency filed by Taricani's lawyers. Taricani, in his DeSisto's narrative, becomes more of an obscurantist than the guy facing charges. It's also interesting to note, in the full reply, that Bevilacqua didn't come forward out of the blue; rather, he confessed only after he'd been made aware that Taricani had given too much away in private conversation with another interested party (FBI agent Dennis Aiken).

It's difficult to know whose side to take in a court v. lawyer v. reporter battle — even more so in a state with as much mutual back scratching as Rhode Island. But I can't shake the feeling that there's something more to this than the simple explanation of either a martyrdom-seeking journalist or a defense-preparing lawyer. I'll be very curious to see what the future holds for Mr. Bevilacqua, especially with regards to DeSisto's involvement in it.

Facing the Judges

A word on where Andrew and I differ most significantly on the Taricani matter: Andrew believes that one problem that conservatives face when attempting to trim the powers of the judiciary is that they "pick a hot-button issue -- gay marriage, flag burning, 'under god' in the pledge of allegiance -- to advance the cause of placing limits on the power of the judiciary." In the course of the public debate, the judicial aspect gets lost in the heat of the social issue.

Of course, as one who has written often about the issue of same-sex marriage, I'm predisposed not to want other issues to detract from the fuel that helps the traditional marriage side keep its case moving. Even accounting for that bias, however, I still think social/cultural issues are the ones on which to stand against the judiciary. The central reason, putting aside the difficulty of motivating the public to become concerned at all, is that endemic judicial activism has been most egregious in its imposition of judges' cultural values. That is where they seem most motivated to cross lines, so that is where the lines must be bolded.

The case of Jim Taricani involves what might be characterized as government theory. Strategically, that means the principles behind the struggle will have to be explained to the public (and the media) in order to give the movement any momentum, and such explanations tend to tip the scales back toward apathy. Furthermore, while hot-button issue may overshadow judicial considerations, more targeted volleys will highlight the specific questions involved, allowing the larger picture to slip away.

In the Taricani/Torres case, those specific questions will be the use of protective orders and, especially, of court-appointed special prosecutors. These are certainly issues worth addressing, but I don't know that they're worth expending a great deal of the President's political capital. More importantly, given my priorities, I'd fear that success would give social activists a rhetorical pin with which to deflate the judicial activism side of the other battles.

Help me with a Taricani Detail

I have question about a "detail" in the Jim Taricani case that I have yet to see explained. Perhaps one of my fellow contributors or one of Anchor Rising's readers can help me with this...

Did Taricani voluntarily waive his right to a trial-by-jury in this matter, and if so, why?

Reason 4 to Pardon Jim Taricani: Hard Cases Make Bad Law

There is a legal maxim that says "hard cases make bad law". This has taken on a new urgency with respect to the Jim Taricani case. As a result of Judge Torres' Thursday ruling, Senator Christopher Dodd from Connecticut has proposed a federal shield law for journalists.

Let me make an important point I haven't yet stated directly. My call for a Presidential pardon of Jim Taricani is in no way based on any concept of special rights for journalists. Journalism, like any profession, makes unique demands on the people who practice it. Those demands in no way release its practitioners from their duties as citizens.

The advent of blogging and electronic publishing blurs the line between who is and who is not a journalist. Perhaps no meaningful line exists. Passing a shield law will invite the abuse of the concept of journalism, encouraging people whose primary goal is to avoid giving testimony to claim they are journalists.

Of course, the President could make this issue go away by pardoning Taricani. And when else will President Bush have an opportunity to do something popular in a blue state, something civil liberties oriented AND something that upstages Christopher Dodd at the same time?

Reason 1: Why Pardoning Taricani is the Right Thing.
Reason 2: Why Pardoning Taricani fits the President's Agenda.
Reason 3: Why Pardoning Taricani is a Teaching Moment.

Black Robes and Conflicting Interests

Andrew, yes that notion that the judge can usurp executive powers when some among the executive branch might have a conflict of interest is the lynchpin. After I read, last night, Torres's decision demanding that Taricani name his source (PDF), questions about the procedures and powers involved with forming grand juries and appointing special prosecutors still loomed over the issue. (And it isn't an area of the law that I'm able to research right now.) Taricani's lawyers' not making a big deal of that aspect seemed to indicate that Torres hadn't stretched the law on that count, but I guess they have raised the issue.

Particularly of note, from the Providence Journal piece, is this paragraph:

Taricani, [Torres] said, had no right to refuse to reveal his source to DeSisto, based on the U.S. Supreme Court decision in the 1972 case of Branzburg v. Hayes. In that case, the nation's highest court rejected the argument that reporters have a First Amendment right to refuse to answer "relevant questions put to them in the course of a grand jury investigation or criminal trial."

I haven't read Branzburg, but in Torres's summary of and quotations from that case in his ruling, the repetition of the phrase "grand jury" is conspicuous. Consider (emphasis added):

Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task.

Again, I'm not versed in the laws and practices surrounding court-appointed special prosecutors, but the difference between them and grand juries strikes me as significant. The sentence that the Projo quotes from Branzburg seems to leave open further possibilities, but it only adds "criminal trial," which (if I'm not mistaken) suggests a court proceeding in which an indictment has already been made.

Two other cases that Torres cites raise interesting considerations. First, in Bruno & Stillman, the court ruled that, "as a threshold matter, the court should be satisfied that a claim is not frivolous, a pretense for using discovery powers in a fishing expedition." When Torres turns to another case, Cusumano v. Microsoft Corp., for an example, he highlights the central concern in the Taricani ordeal: in Cusumano, the court was weighing the claims of Cusumano against those of Microsoft; here, the court is weighing Taricani's claims against... its own.

To be sure, Torres's strongest point is that the public has a significant interest in maintaining the authority of courts during legal proceedings as well as during investigations undertaken in the course of "law enforcement." The problem that this neatly sidesteps, however, is that the court is not immune to conflicts or excesses. The party most directly wronged by Taricani's refusal to answer questions (as quite distinct from the party wronged by the breaking of the protective order in the first place) is the court itself. Even somebody who disagrees with my highly suspicious view of judicial power ought to be able to understand, in this context, why the following sentence from Torres's original ruling raises my eyebrows:

... the investigation was initiated at the behest of the Court, itself, and cannot be described as the arbitrary action of a possibly overzealous prosecutor or runaway grand jury having ulterior motives.

Now, I'm not saying that Judge Torres has ulterior motives, but the mindset seems to be that courts are above such things. They aren't; one can easily imagine situations in which the precedent that Torres is setting could lead not only to individual instances of judicial wrongdoing, but also to further usurpations of power. In researching this issue, one can nearly hear the pieces falling into place.

The court generated the protective order and was the most directly wronged party when it was broken. The court appointed the person to investigate the crime. And it is the court that has just deemed its own special prosecutor to have the power to coerce testimony. Unless I'm missing some important piece of the legal background — and discussion of such background is a notable absence in Torres's reasoning — the step that this case has taken is the equation of a court-appointed special prosecutor with grand juries and investigators involved in cases in which the court is more clearly a disinterested third party.

ADDENDUM:
Incidentally, although this is a federal case, I noticed while researching that Rhode Island's laws appear to offer a bit more license to judges when it comes to their orders and decrees. That might be something that we should look at as we push and pull the state toward governmental sanity.

Taricani's Lawyers do See the Separation of Powers Issue

From today's Projo story on the Taricani case:

Yesterday, as Taricani's legal team has argued in the past, Murphy challenged DeSisto's authority to prosecute the contempt case against Taricani. He asserted that only the U.S. Attorney's office has jurisdiction to prosecute such cases.

Here's part of Judge Torres' response, where he explains why it is necessary for the courts to assume the function of enforcing the law in this case.

The judge also said he felt the U.S. Attorney's office had a conflict of interest because someone in that department could have been Taricani's source.

That lays it out pretty clearly. Taricani's lawyers are concerned with judicial usurpation of the enforcement function of government. Torres agrees there is usurpation, but says it's necessary for the greater good.

Our Judicial Supragovernment?

Not being adequately informed about the case and the relevant laws, I've been waiting to hear Andrew's argument in full with respect to Jim Taricani and Judge Torres before taking a position. However, Dan Yorke believes Judge Torres is in the right, and he just said something on his radio show that gives reason, at the very least, to be concerned about an underlying mindset.

With interspersed commentary, Yorke played the public statement that Taricani made upon being declared guilty of criminal contempt of court. When he got to this sentence, Yorke stopped the tape:

The government has used its resources and power and the threat of jail to try to coerce me to identify a confidential source.

Among his comments, Yorke suggested that, while technically true, it was somehow shifty to characterize the judiciary as "the government." Paraphrasing: "It's one branch of government, and in this case, it's investigating another branch of government, the executive" (meaning the FBI). This brings to mind something from one of Andrew's posts on this topic:

Institutionally, American democracy has forgotten something -- all three branches of government are charged with defending the rights of the individual. Somewhere that idea was lost, replaced by the idea that the court system alone was charged with protecting individual liberty, and the other branches of government, and the general population, were expected to obey judges' orders without question (unless another judge overturned an order.)

I've done some preliminary investigation of the relevant law — enough to realize that I don't have the time right now to do more than a preliminary investigation — and it appears that the question comes down to whether Torres's order that Taricani reveal his source was a "lawful writ, process, order, rule, decree, or command." I'll leave that question open (Taricani does have lawyers working on his behalf, after all), but I will agree with Andrew that this case may present a worth-taking opportunity for the executive branch to remind people that the actions of the judiciary are, indeed, actions of the government — not some supragovernment with incorruptible judgment as to the law and its own powers.

The Basis of the Taricani Ruling

The Providence Journal provides a link to Judge Torres' order (pdf format) compelling Jim Taricani's testimony about his source. Two things leap out at me.

1. It is clear from the memo that the leaking of the tape is not a violation of the law. It is a violation of a "protective order" issued by the judge. In explaining the validity of the order, Judge Torres cites its consistency with "the Local Rules of this Court" and the "Rules of Professional Responsibility" for lawyers. Do we now live in a society where rules that judges and lawyers make to police themselves, without consulting any other branch of government, can be used to take a citizen's freedom away?

2. Judge Torres cites precedents stating "Certainly the public has no right to demand access to discovery materials which are solely in the hands of private party litigants" and "no public right of access submitted to court in camera as part of discovery dispute". He uses these precedents to support the "rules" barring the release of evidence. The logical connection Judge Torres sees is troubling. Do we live in a society where everything that there is no right to is forbidden? Is the government's enumeration of our rights the limit of our rights? More concretely, because I don't have a right to a $1,000,000-a-year job, does that mean a $1,000,000-a-year job is forbidden to me?

I mean no personal disrespect to Judge Torres, but this memo contains the kind of sloppy reasoning that is only possible when courts feel that mere laws written by legislators are too harsh a limit on their powers.

Reason 3 to Pardon Jim Taricani: The President should Seize the Teaching Moment

Reason 1: Why Pardoning Taricani is the Right Thing.
Reason 2: Why the Right Thing is Consistent with the President's Agenda.

Institutionally, American democracy has forgotten something -- all three branches of government are charged with defending the rights of the individual. Somewhere that idea was lost, replaced by the idea that the court system alone was charged with protecting individual liberty, and the other branches of government, and the general population, were expected to obey judges' orders without question (unless another judge overturned an order.)

That flaw, of course, is that the people who make up the judiciary branch are just as human and fallible as the people who make up the other branches. They can make mistakes and overstep their authority -- for what they think are the right reasons -- just like the other branches can. And that is why there are checks built into the system that limit the power of judges.

In the Jim Taricani Case, President Bush has an opportunity to step forward and remind the nation of the fact that the court system is not more equal than others when it comes to protecting individual freedom; the executive is as responsible for protecting rights as are the courts. The President has the authority -- and the duty -- to reverse actions of the judicial branch that would improperly deny an individual's freedom.

Reason 2 to Pardon Jim Taricani: The President can Advance his Agenda by Doing the Right Thing

The President and his conservative coalition, as a matter of principle, do not like activist judges, i.e. judges who use their power to go beyond just interpreting the law. Here is uber-conservative and Bush supporter Phyllis Schlafly on the subject...

"Finally, we have a president who comes right out and targets 'activist judges' as the enemy of traditional values and urges us to use 'the constitutional process' to remedy the problem....Bush called on Americans to defend the sanctity of marriage against activist judges who force 'their arbitrary will' by court order 'without regard for the will of the people and their elected representatives.'"

Alas for Ms. Schlafly, conservatives have a poor track record of limiting the power of activist judges. The above quote shows why. Almost always, conservatives pick a hot-button issue -- gay marriage, flag burning, 'under god' in the pledge of allegiance -- to advance the cause of placing limits on the power of the judiciary. By the time the debate reaches the public sphere the issue of activist judges generally gets lost in the more visceral substance of the case being decided. For better or for worse, people respond more strongly to ideas about 'traditional values' and 'the sanctity of marriage' than they do to ideas of 'activist judges'.

Because the Taricani case is not the usual kind of case people have in mind when they hear talk of 'activist judges', it an ideal circumstance for a President concerned about activist judges to step in. This case does not involve a hot-button issue. If the President were to announce a pardon for Taricani, the civic debate that ensued would focus on the President's power to limit the actions of the judiciary. And the President would be the one broadening rights and expanding freedoms that the judiciary wants to limit...

Reason 1 to Pardon Jim Taricani: It's the Right Thing to do

Rhode Island just passed a separation-of-powers referendum on the state level. But do we have it at the Federal level? Separation-of-powers means that a legislative branch of government makes the laws, a judicial branch of government interprets the laws, and an executive branch of government enforces the laws.

At the moment, Jim Taricani is being denied the protection that separation of powers is supposed to provide. What law did Taricani break? Well, it was not a law exactly, it was a "court-order" not to release information. And who is enforcing this court-order? Well, it is a "special prosecutor" appointed by the judge who issued the order. In other words, in the state of Rhode Island, an American citizen may be imprisoned by his government for violating a rule made by judge Ernest Torres, interpreted by judge Ernest Torres, and enforced by judge Ernest Torres.

This is a clear breach of the principle of separation-of-powers. Fortunately, the Federal constitution anticipated excesses of judicial authority, and provides a remedy -- the Presidential pardon.

And, for a variety of reasons, President George W. Bush should be inclined to use his power of the pardon in this case...

The Jim Taricani Case

Providence Journal media writer Andy Smith has an update on the Jim Taricani situation in Sunday's paper.

For those unfamiliar with the events, here is the background. Jim Taricani is a political reporter for the local NBC affiliate, WJAR-10. In 2001, about two months before the (former) Mayor of Providence was indicted on federal corruption charges, an anonymous source provided Taricani with a videotape showing one of the Mayor's aides taking a bribe. Taricani showed the tape on WJAR.

The judge presiding over the case, Judge Ernest Torres, ordered Taricani to reveal his source. Taricani refused. Beginning in March, Torres imposed a $1,000-a-day fine on Taricani. This Thursday, Taricani goes to trial for criminal contempt, and, according to Smith, could face six months in jail.

There is a solution to this problem, though it will not fully please everyone. The case is a federal matter. As such, it is possible for President George W. Bush to use his power of the pardon to end it. This week, I will lay out the reasons why President Bush should pardon Jim Taricani...