Question for Kevin Drum

Assume the following facts:

1. Karl Rove was actively involved in revealing that Valerie Plame had been an undercover CIA officer.

2. One of the journalists he told was Matt Cooper.

3. Cooper’s notes record his conversations with Rove.

4. Rove lied to the grand jury about having talked to Cooper, or about what he said to Cooper.

5. Cooper’s testimony is the only way to prove that in a criminal trial. (His notes are probably inadmissible under the hearsay rule, given that he is available to testify. If Cooper’s words are to be used to convict Rove, under the Confrontation Clause it is Rove’s right to have his attorneys cross-examine Cooper.)

Assuming all of that — not necessarily accurately, but assuming it for purposes of argument — would it be a good rule of law to create a “reporter/source privilege” that would exempt Cooper from the obligation to testify, and that would have allowed Time, Inc., to keep the notes — and therefore Rove’s name — away from the prosecutor and the public?

I single out Kevin for my query, not because his view is unusual in blogspace, but because this is one of the rare instances in which I find myself strongly disagreeing with a view that Kevin seems to hold equally strongly.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com