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.
Neither of the remaining reasons I would post involve the fundamental governmental issues involved in the first 3. What I’ve already posted would certainly benefit from your critique.
Quickly, the remaining points would be
4) The legal maxim “hard cases make bad law” seems to apply here, and
5) It would good for the country if the President came to the bluest of the blue states and did something civil liberties oriented.
Very interesting discussion going here. I did not hear the Dan Yorke show, but I agree with his comments as you have characterized them.
The judicial branch here is tasked with ensuring the accused is afforded a fair trial. With that aim in mind, the court decided that both the jury and the public should see the tape in question at trial. Allowing the tape to be seen before trial could be prejudicial and interfere with the accused’s rights. (Whether it did interefere with the accused’s rights is another issue.) Notice that the tape would have been made public eventually (at trial).
In the end the release of the tape isn’t about the journalist, it is about the conduct of the executive branch. A member of the executive branch (DA? FBI?) intentionally sought to prevent a fair trial by releasing the tape to a journalist. That member of the executive branch needs to be held accountable. The journalist is but a means of getting to that person.
Wouldn’t a more interesting story for the journalist to have been to report “Mr. X of the DA’s office is attempting to prevent a fair trial by releasing a tape that the court says that he cannot release.”
If I was standing trial and someone sought to improperly influence the jury pool and therefor deny my rights to a fair trial, I would pray that the court would seek out that person to the best of its ability and bring them to justice.
Forgot to mention I enjoy the blog. Good luck.
Nobody is saying that the person who released the tape oughtn’t be sought. The question is what powers the judiciary ought to have in that tangential investigation.
(Thanks for reading, by the way. Hopefully we’ll prove deserving of your well-wishes.)
One other thought: I find it interesting that the person who gave the tape to Taricani has concluded that it is better that Taricani pay in excess or $85K in fines and go to prison than to reveal his or her own identity. (so far)