Mr. Pincus Is In Contempt Of Court

In gloomy news for Washington Post reporter Walter Pincus, he was found to be in contempt of court for refusing to provide testimony in the Wen Ho Lee case.  He is subject to a fine of $500 per day (is that tax deductible?) but not jail, and everything is stayed pending an appeal.

The court opinion is here.  It provides a road map for the hurdles that will be faced if the Libby defense team chooses to subpoena some reporters, as the Times say they will.

An excerpt:

... a plaintiff can overcome this qualified privilege and compel a journalist to reveal the identity of his or her confidential sources if (1) the information sought goes “to the heart of” the plaintiff’s case and (2) the plaintiff has exhausted “every reasonable alternative source of information” before seeking testimony from the journalist(s).

That should not be insurmountable in the Libby case.

Comments

[TP]

The Wen Ho Lee case is a civil case. I would love to hear what the lawyers say about a defendant's 6th Amendment Rights in a criminal case versus a plaintiff's rights in a civil case.

[epphan]

Right on. The difference in civil versus criminal will be interesting. Why does Pincus or his source have more protection that Lee?

[clarice]

This finally got out of the queue that built up during a upgrade ....

http://americanthinker.com/articles.php?article_id=4993

TP--the 6th Am problem is really a substantial one for the Libby prosecution..when you ad to it the other problems in the case, Fitz would be well advised to listen to the Wash Times which today urges him to just drop the damn thing.

[epphan]

...That is...more protection or more "rights." Because he is a high and mighty reporter...or a government official. Yea, a judge will love that!

[Gary Maxwell]

TM

As a CPA who has not practiced in awhile I may not be the penultimate source, but to answer your narrow inquiry on the tax implication of the court fine, I will say that to the best of my knowledge - court fines are not deductible. Reimbursable by a grateful WaPo? Different question entirely.

[Lion]

Seems to me that the right of a criminal defendant to arguably privileged information is substantially greater than that of a plaintiff in a civil case. The press is going to rue the day that Fitzgerald popped open this can of worms. By the way, where is it written that Libby is under any burden to show "common knowledge" of Plame's status?

[BurkettHead]

Wouldn't it be counterproductive to deduct fines? After all, they're suppsoed to be penalties. But it could just be another cost of doing business in DC.

[Jeff]

I take it Libby's quote unquote First Amendment defense is mainly an effort to draw out the whole process, so that we don't get a trial for a long time, perhaps even long enough to outlast the Bush administration and just get that January 2009 pardon without having to do any jail time or tell any truth.

[clarice]

Jeff, if you're ever in a situation where you've been denied your Fifth and Sixth Amendment rights while pursued by a nutso prosecutor who wasn't able to establish the predicates of the crime he was tasked to investigate and is seeking a raison d'etre, I'll remember your argument and serve it back to you.

[Jim E.]

"I may not be the penultimate source"

Penultimate doesn't mean what you think it means.

[Florence Schmieg]

Jeff, Libby, like any American, has the right to use every aspect of the legal system in his defense, including the possibility of a presidential pardon. You act as if he is a child molester or gave secrets to China (oh, I forgot, that was Clinton). He is a dedicated public servant who has worked for many years at a pay rate far below what he could have made in the private sector, who worked 16 hour days and deserves better than what he is getting from this prosecutor.

[cathyf]

As a CPA who has not practiced in awhile I may not be the penultimate source,

Well, perhaps you are... A currently practicing CPA would be the ultimate source, while an accounting graduate who hasn't passed the CPA exam would be the ante-penultimate source.

("Have some more madeira, my dear," she sighed with her ante-penultimate breath.)

cathy :-)

[spongeworthy]

Deductible as a business expense, wouldn't you think? You incurred it as part of your job function, not for leaving your trash cans out.

[p.lukasiak]

not to put too fine a point on it, but the rights of a plaintiff in a civil suit to have access to relevant testimony pale in comparison to the rights of the accused in a criminal trial.

I don't think Libby will have any problem at all with getting permission to depose journalists -- nor to compel relevant testimony from journalists. The key word here is "relevant".

A good judge is going to try and strike a balance here -- he'll tell Libby's lawyers that they can't go on "fishing expeditions" (i.e. they will have to provide some evidence that a journalist has relevant testimony before compelling that journalist to testify), and will permit journalists to enjoy some privilege if the defense team veers away from relevant testimony. (The latter will probably take the form of sustaining any objection by the prosecution to a question on the grounds of irrelevancy).

[Jeff]

clarice and florence - I'm not sure what you're getting so exercised about. I don't deny that Libby's lawyers so far are doing a good job at their job, and that's their job, and that regardless of the fact, clarice, that you completely mischaracterize the prosecutor and his case. I will say that if President Bush were serious in his demand that everyone fully cooperate with the investigation -- honor and dignity and all that; not just what's legal but what's right and all that -- then he would take a pardon for Libby off the table. But it's absolutely right that the president has pardon power, Libby knows it and he is fully within his rights to capitalize on that fact in his legal and political strategy. I don't begrudge him that at all. So I'm still not sure how you disagree with my description of what is going on?

[clarice]

Hell,I'd pardon him now and shitcan this farce.

And I must say after the Clinton pardonarama it takes a certain kind of gall to demand a promise not to pardon Libby for this nothingburger indictment. The kind of gall that permits Ted Kennedy to speak of the horrors of waterboarding and the fear of drowning.

Don't go there before I really let loose.

[p.lukasiak]

I'm not sure what you're getting so exercised about

you strayed from the approved wingnut talking points, Jeff. That was enough.

[Gary Maxwell]

Oops I was thinking of penultimatum or as in "all but demanded" or "just before an ultimatum"

I do think my knowledge of tax code far exceeded the average Joe and although tax law changes constantly and the current code is enough to choke an elephant, and therefore I am not "next to last". That would likely be Raw Story. :)

[Gary Maxwell]

Spongeworthy

You are trying to use logic here which is always a dicey proposition with a product of Congress! The code specifically makes penalties not deductible. I would guess that Congress did not want to encourage the rich to just accept fines since they were insignificant to their pile of scheckels.

Could WaPo transform them by reimbursing them and then calling them an employee expense on their return? Interesting question. And remember anything is deductible at least and until the IRS questions it.

[Syl]

Jeff

not just what's legal but what's right and all that -- then he would take a pardon for Libby off the table.

Yeah, and you folks were incensed that Bush, when governor of Texas, didn't pardon any murderers..and he didn't even have the power to do so.

But now he absolutely should not under any circumstances pardon somebody who may or may not be found guilty of fibbing?

Just what kind of upside down utopia are you trying to create here?

[TM]

If I were Bush, I would wait to see how Fitzgerald handles this before deciding to unilaterally disarm.

And there is still the issue of the DC juries.

[clarice]

Damn right--Since they can't fire or remove Fitz--which could be done with a runaway D.A.--they'd better retain some way of dealing with him.

[macranger]

Let's not forget....

The "Who Leaked" question is no longer news...

Fitz's indictment was about perjury, obstruction....nothing on the original reason - because she didn't fit the bill.

Hell, at this point it doesn't matter who talked about her - that wasn't decided by Fitzgerald and determined in October of 2004.

Woodward can come forward now because as he says, "When I think all of the facts come out in this case, it's going to be laughable..."

Which is why Rove has a "bounce in his step".

[Gary Maxwell]

which could be done with a runaway D.A.

How exactly would you go about firing a District Attorney who is well off the reservation? I happent to know of one BTW...

[TexasToast]

Actually, "Who leaked" is all over the blogosphere - and its a mighty short list.

Gary

Ask Richard Nixon - he fired Archibald Cox......

Tom Delay's problem is it will look mighty fishy if they use the Kay Bailey gimmick again. Can't go to that well too often.....

[cathyf]

Independent counsels were not fireable, which is why the law expired. SP's are not any harder to fire than any other prosecutors. Not any easier, either. You gotta be willing to ride out the resulting shitstorm.

cathy :-)

[TP]

TM--Don't forget Libby has an African American litigator who will be up against an Irishman. That might even things out with DC juries.

[cathyf]

Don't be so sure about that unfriendly DC jury. Leaks are basically the only weapon that the great unwashed mass of penny-ante bureaucrats has when the government goes off into outrageous behavior. Virtually every citizen of the city knows somebody who leaked to a reporter and prevented the government from engaging in some outrageous boondoggle which could not survive the light of day. The jury is going to start with a prejudice that leakers are the good guys. Only the big bosses think that leakers are always bad guys.

cathy :-)

[Dwilkers]

Interesting spot the media have gotten themselves into with all this. It'd be funny if it wasn't such a damn serious time.

[Gary Maxwell]

Archibald Cox was the solicitor General of the US. that is the third in line in the Justice Dept. Not anyway relevant to the point about District Attorney

But thanks for playing TT

Brother if you dont smell three day old fish right now from what Earle pulled, well a good Eye Ear Nose and Throat specialist is in the Ft. Worth area. See me for a referral.

[paul]

Strange going-ons at the Post.

VandeHei has been doing bylines with Pincus, but some of the work seems to be all VandeHei.

VandeHei appeared on some MSNBC show, but looked cowed last night. I think Pincus must be reaming his ass out over something-probably a recent article which Pincus got whacked for, but never read and had just lent his name.

VandeHei is probaly living off of Pincus' sources, and alienating them as he goes.

[Jeff]

And I must say after the Clinton pardonarama it takes a certain kind of gall to demand a promise not to pardon Libby for this nothingburger indictment.

clarice - What on earth are you talking about? My name is Jeff, not Bill Clinton, and I see no reason to project onto me the cult of personality devotion to a Democratic president and everything he does that is a much more striking characteristic of the right today. In fact, not only am I not Bill Clinton, I did not have any influence over Clinton's pardon decisions. In fact, they struck me as unjustified at least in some cases, like the one for Lewis Libby's client, Marc Rich.

And you didn't really address my point. Given Bush's own expressed desire to get to the bottom of this, and given his demand that everyone fully cooperate with the investigation, it seems like an obvious move to change Libby's incentives and disincentives such that he is more likely to fully cooperate by announcing that a future pardon should not be a part of his calculations. Honor and integrity, honor and integrity, what's right, not just what's legal, don't forget.

[Truzenzuzex]

Jeff:

I will say that if President Bush were serious in his demand that everyone fully cooperate with the investigation -- honor and dignity and all that; not just what's legal but what's right and all that -- then he would take a pardon for Libby off the table.

Hold on there, Jeff. You got some 'splainin' to do here.

How exactly does taking pardons off the table ensure cooperation? Seems to me that a person who has a potential "get out of jail free" card might be less concerned that honesty will get them into the kind of trouble they can't get out of.

Anyway, the two are unrelated. Libby has no assurance of a pardon, and Bush certainly has no particular reason to pardon him other than out of a a sense of loyalty or pity. That is, assuming Libby doesn't have evidence of illegal activity by the administration he'd be willing to trade for a slap on the wrist or to get a little payback.

As far as "not just what's legal but what's right", seems to some (and increasingly, to me) that Libby's prosecution just ain't right.

[clarice]

Truz has answered for me quite nicely--I'd add that watching those Dem Senators yapping about a no pardon promise struck me rather like watching a bunch of hyenas aiming for a downed lion--striking a pose of a moral high ground while fighting to crunch on the bones..
Each day I find these people more morally repulsive. And their act more stomach turning.

[Gary Maxwell]

Look what I found on John Murtha who voted NO on House resolution 557 on 3 -17 -2004. The resolution passed 327-93.

Here is the text of the resolution which Rep. Murtha found to be so distasteful:

States that the House of Representatives: (1) affirms that the United States and the world have been made safer with the removal of Saddam Hussein and his regime from power in Iraq; (2) commends the Iraqi people for their courage in the face of unspeakable oppression and brutality inflicted on them by Saddam Hussein's regime; (3) commends the Iraqi people on the adoption of Iraq's interim constitution; and (4) commends the members of the U.S. Armed Forces and Coalition forces for liberating Iraq and expresses its gratitude for their valiant service.

So he either thinks we would be: better off with Saddam still in power ( point 1), thinks the Iraqis are cowardly ( point 2), thinks the Iraqi constitution is a bad thing ( point 3), or is not grateful for the the armed forces valiant service. Or as a bonus all of the above. Sounds like Michael Moore to me, show the pictures of Iraqis flying kites again.

Fact checked your ass, MORON. The text is right out of the Library of Congress in case you lie and say I made it up.

Quoting Michael Moore and Babs Streisand would be not much different than this pitiful vote by an elected DEMOCRAT

[MayBee]

The Dems have always prided themselves for being the party that supports civil rights.

That they, for purely partisan reasons, would try to demand an individual's civil right to equal justice under the law be removed by the President before he is even tried- is simply unimaginable to me.

A murderer, a rapist, a drug dealer, an international financier- all have equal right to petition the President of the US to be pardoned. And not Scooter Libby?

These Dems should be ashamed of themselves for calling for international terrorists to have full access to the US judicial system and yet want one of Libby's chances for freedom to be taken off the table before a trial. They really need to re-evaluate how dedicated they are to their own core values.

[rich]

Pincus was held in civil contempt. The coercive penalty is a fine of $500.00 per day. I do not think these are retractable if he complies after a holdout. I think one still has to pay for the days one does not obey the court. Otherwise there is too much room for gaming the system.

These fines add up quickly. Two weeks is $7,000.00. A month is $14,000.00.

The Court may have something to say if the Post offers to or attempts to pay the fines.

Which brings up two more questions.

Is there corporate criminal responsibility for these news organizations that publish classified material?

Or is there a civil penalty assessable against corportations that publish classified material?

[Jim E]

The fine is not tax deductible.

If paid by or reimbursed by WaPo, probably income to Pinkus and not deductible by WaPo either.

FWIW.

[clarice]

Sweetness& Light rips into the WaPo bigtime--and I can't say it's undeserved--http://americanthinker.com/comments.php?comments_id=3679

[Daddy]

Have I missed something? Why the hell should Bush pardon Pincus?

[clarice]

Heh, dady. I sincerely believe that's not ever going to be under consideration.

[JM Hanes]

Jeff -

"not just what's legal but what's right and..." ...what is tantamount to saying that the Prez should be attempting to directly influence the outcome of a trial in which he has a clear political interest. Now there's a sterling precedent. I can just imagine your outrage if the Prez promised to grant a pardon. Yet promising to deny a pardon is just A-OK. I'm not sure that promising either one in advance is even strictly legal, but neither one is right.

[Jeff]

First off, the pardon power is not part of the judicial system, so save me your self-righteousness and hypocrisy-hunting on that count. It's the exercise of executive discretion, and in fact is in many ways (including its origins in absolute monarchical power) deeply at odds with the rule of law, and obviously at odds with the notion of checks and balances. That isn't necessarily an argument against its existence, it's just an argument against your self-righteous indignation in the name of the judicial system.

It's also an argument against the idea that President Bush exercising his unassailable executive discretion by declaring that he would not pardon Libby would somehow be denying Libby one of his chances for freedom or prejudicing the operation of the judicial system of which it is not a part.

Now, I take it as given that all the relevant parties -- Libby and Cheney and Bush -- have intense loyalty to one another, so that figures into their calculations. I also take it as given that in the real human world, it is pretty evident that Libby lied -- which is not to say anything about whether he is guilty of a crime or not, that remains to be seen. But Libby did not tell the truth to investigators. That is not fully cooperating. But now Libby faces a situation where -- as one of you pointed out yourselves -- one of his best shots at freedom is a presidential pardon after dragging out the legal proceedings as long as possible. Under those circumstances, nothing resembling the truth of what happened is likely to come out. What would change that is if Bush took a pardon off the table. Suddenly, Libby has considerably more incentive to start telling the truth to Fitzgerald. That won't ensure cooperation, and I never said it would. It only makes it more likely. But even if it doesn't, it means we'll have a trial where more of the truth can come out.

Let's just say I took the public love letters both Bush and Cheney rushed out to send to Libby right after he was indicted -- did either of them give any indication they were at all troubled by the indictment, I don't remember? -- did not inspire confidence they were doing anything other than signaling to Libby that they were far from cutting him loose, that he would be cared for.

Of course I am inclined to think that there was some underlying dishonorable behavior -- in fact, in my view we already know there was from what is public knowledge -- and perhaps an underlying crime (in fact I think there was and that at least so far Fitzgerald has exercised his prosecutorial discretion, which is part of the judicial system, in not going ahead with a prosecution). And of course you are inclined to think not. Fair enough. But in order to hold on to your view, it seems to me you also have to gin up this picture of Fitzgerald as an out-of-control, Ken Starr-like incompetent, which strikes me as ludicrous. Don't forget what Bush himself said about the dignified way Fitzgerald has conducted what Bush himself calls a serious investigation. In that light and in light of the evidence Fitzgerald has laid out thus far, I'm inclined to believe him when he says that he has been unable to get to the bottom of what happened. I think President Bush is in a perfect position to help him -- and that is exactly what President Bush has demanded all along, full cooperation with the investigation.

[JM Hanes]

"It's the exercise of executive discretion, and in fact is in many ways (including its origins in absolute monarchical power) deeply at odds with the rule of law, and obviously at odds with the notion of checks and balances."

Which is precisely why using a pardon to influence the course and/or outcome of a trial borders on obstruction of the judicial process. The President has taken an admirably appropriate, legally and ethically, hands off approach to this investigation from the outset, and I would be appalled if he decided to insert himself at this juncture -- even if I found your "likely" scenario persuasive, which I don't in the least. Nor, I suspect, would Fitzgerald, despite your attempt to characterize such a deus ex machina moment as "full cooperation."

"That isn't necessarily an argument against its existence, it's just an argument against your self-righteous indignation in the name of the judicial system."

The self-righteous indignation here is your special talent. My forte is sardonic condescension. If it weren't, I'd tell you what I really think of the pardon scam you're proposing.

[Jeff]

My forte is sardonic condescension.

Don't flatter yourself.

The President has taken an admirably appropriate, legally and ethically, hands off approach to this investigation from the outset

And the waiver requirement? That was hands off? I don't see how this is any different -- or rather, this is even less of an interference than that, since the waiver effectively took a properly legal strategy off the table for potential defendants, while declaring there will be no pardons forthcoming is no such thing.

[JM Hanes]

Call it sarcastic condescension then.

As a matter of fact, the waiver requirement turned out to be one of the most problematic issues in the investigation, in principle and in practice. The effect on news gathering & whistleblowing, if reporters can't protect their sources is only one obvious, complicated, piece. On the other side of the equation, are we really willing to make the sacrifice of fifth amendment rights a condition of public employment?

Regardless of what you think of Judy Miller, her unease over the non-voluntary nature of blanket releases was entirely defensible. To say she got mixed signals from Libby is to be charitable. He was willing to see her marched off to jail rather than to confirm that his compliance was anything other than strictly pro forma. From what we now know of his testimony, it's seems pretty clear that he didn't want her on the stand at all, and failing that hoped her testimony would be as short and sweet as possible.

It would have been far more instructive to see who (when & how) issued waivers voluntarily. There was certainly more than enough political incentive to do so, and journalists' testimony ultimately had to be compelled by the court anyway. The resulting morass of 1st, 5th & 6th amendment issues will be fodder for endless pre-trial motions, a ready made vehicle for appeals, and the resolution of same will profoundly effect the nature & practice of journalism.

So yes, I think it was a very serious mistake, although I think the opposition party would have crucified him had he failed to make it. I don't think it should be compounded by another extra-judicial intervention. I believe you're completely mistaken about the effect it will have on the course of the trial, and I can think of countless future scenarios in which you wouldn't be so quick to recommend it, if you weren't so convinced that somebody is guilty of something here and needs to pay. I can also imagine various mitigating circumstances which might come to light -- if, for an example that the left might like, Libby is being held hostage to the V.P. in some dastardly way.

On the whole, however, I think both Fitzgerald and Bush provide a far more admirable model for the future than either of their predecessors in the previous administration did.

[clarice]

Very well put Mr. Hanes. Very well, indeed.

[clarice]

Fitz is backtracking on his absurd (and probably unconstitutional) demand that all discovery materials given to the defense must be kept non disclosable--http://news.yahoo.com/s/ap/20051118/ap_on_go_ot/cia_leak_records_1

[boris]

The bottom line is that reporters can render this case unprosecutable. The odds that they will do so increases with every revelation. They might have wanted a stink bomb on the administration, which they got, but further damage is not in their interest and the risk of self damage and future non cooperation becomes a liability.

[clarice]

JPod says the new GJ may mean big trouble for Pincus. (From his mouth to God's ears):
[quote]The new Fitzgerald grand jury has everybody buzzing. Clearly the prosecutor wants and needs to check out the meaning of the revelation that Bob Woodward was the first reporter to have been told about Valerie Plame's CIA employment. People in DC are focused on the identity of Woodward's government source -- but maybe they should be looking somewhere else.

One person who might conceivably be in some jeopardy is Woodward's own colleague, Walter Pincus. Pincus testified before Fitzgerald's grand jury last year about his government source for his stories. Woodward now says he told Pincus about Plame some time in mid-June. Pincus says he doesn't remember that.

Which is what Pincus has to say. Because if Pincus acknowledged remembering Woodward's words, he would (one presumes) be admitting to having perjured himself before the grand jury. Fitzgerald will presumably not indict Pincus based on Woodward's words alone (that would be a he-said-she-said situation, and there's no way of proving Pincus knew).

But if Fitzgerald now subpoenas a whole bunch of new executive-branch officials who never testified before -- including some people at State and CIA -- he will surely be doing so to find out whether Pincus spoke to them, and whether Plame's name came up. He might also want to see Pincus's contemporaneous notes, which he did not insist on in the first place.

Fitzgerald indicted Scooter Libby for supposedly lying to his grand jury. Why should Walter Pincus be held to a lesser standard? [/quote]

He's wrong about the gj tesimony though--Pincus answered precleared questions in a written deposition. But that's a bit of a technicality--those answers could have been read to the gj as if he were testifying before them and with the same affect.