An Act of Conscience or Contempt of Court?

Background | Appellate Process | Moot Court Simulation | Separation of Powers | The Federal Grand Jury | Shield Laws and Federalism

Separation of Powers

The Constitution established three separate but equal branches of government, with each branch having a system of checks and balances on the other two. The purpose of this arrangement is to prevent any one branch from growing too powerful at the expense of the others.

The three branches of the federal government are the legislative, executive, and judicial. The legislative branch (Congress) makes the law, the executive branch (the President, Cabinet and advisors) enforces the law, and the judicial branch (the Supreme Court and other federal courts) interprets the law. Although each branch of government has a specific job, all three branches constantly interact with each other to ensure the proper functioning of our constitutional system.

The investigation/prosecution of a federal criminal matter is a generic example of an incident in which all three branches of government work together. First, no one can be prosecuted for a crime unless Congress has passed a law specifically prohibiting a certain action. Similarly, there would be no one to apprehend/prosecute criminals if it were not for executive branch agencies such as the Federal Bureau of Investigation (FBI) and the various U.S. Attorney's offices. Finally, there would be no forum to try criminals for their offenses if there were no judiciary.

The Matthew Cooper and Judith Miller case is a specific example of a situation that involves all three branches of government. Cooper is a journalist with Time Magazine and Miller is a journalist with The New York Times. In October 2004, both reporters were held in contempt of federal court for refusing to tell a federal grand jury the names of the confidential sources they relied on for a certain story. This story concerned the leaking to the press of the identity of an undercover CIA officer. At the last minute, Cooper's source granted him permission to release his identity. Miller's source did not provide such permission, and she went to jail. In the meantime, there has been a push to enact a federal "shield law" that would protect journalists from being punished, under most circumstances, for not revealing their sources.

The Legislative Branch: A grand jury is investigating this incident because Congress enacted the Intelligence Identities Protection Act of 1982 which made it a federal crime to reveal the identity of undercover intelligence personnel, such as a CIA officer. This is one example of Congress exercising its legislative power. Another example of Congress exercising this power is its consideration of a federal "shield law" for journalists.

The Executive Branch: The grand jury was called as part of Special Prosecutor Patrick J. Fitzgerald's investigation. Special prosecutors are appointed by the Attorney General when there is a possible conflict of interest that prohibits the Attorney General from handling a certain case. Since they act in the place of the Attorney General (a member of the executive branch of government), special prosecutors see to it that the laws are enforced, as well as bring to justice individuals who have broken the law. Special Prosecutor Fitzgerald is trying to determine if there was a violation of the Intelligence Identities Protection Act of 1982. The CIA itself is part of the Executive Branch. Its mission is to provide the government with information concerning other nations.

The Judicial Branch: Finally, the judiciary is charged with overseeing grand jury investigations, such as the one called by Mr. Fitzgerald. A grand jury is a panel of citizens, usually 16-23, that determines whether a prosecutor has presented enough evidence to charge and prosecute an individual. This procedure serves as a protection for the citizenry against overzealous prosecutors.

Although the prosecutor alone is allowed to present evidence and/or call witnesses before a grand jury, a federal judge officially convenes the grand jury and answers any legal challenges that arise from the proceedings. In the case involving the Intelligence Identities Protection Act of 1982, a federal district court judge for the District of Columbia, ruled that the Freedom of the Press Clause of the First Amendment did not permit Cooper and Miller to refuse to identify their sources before the federal grand jury. Since both journalists failed to comply with this ruling, the judge held them in contempt of Court.

Cooper and Miller appealed, but the U.S. Court of Appeals for the District of Columbia upheld their contempt citation. The Court of Appeals noted that this issue had been decided by the U.S. Supreme Court in the case of Branzburg v. Hayes. Performing its job of interpreting the Constitution, the Supreme Court in Branzburg held that the First Amendment does not permit journalists to refuse to identify their sources to a grand jury. The U.S. Supreme Court rejected Cooper's and Miller's request to reexamine this issue, and refused to hear their case.