Will Time Warner fold?

It looks as if the threat of jail is going to work. But why should Time Warner have a choice about complying?

As Judith Miller and Matt Cooper prepare to go to jail for defying a court order to reveal who told them about Valerie Plame’s undercover identity, Time Warner apparently is considering complying with the order by turning over Cooper’s notes on the Plame affair. If that happens, Cooper may decide to cooperate after all.

Five comments:

1. This brings the day of reckoning for whoever outed Plame much, much closer. Apparently the prosecutor already knows who it is, but needs confirmatory testimony from the reporters to make a case on what he calls “serious” charges. And much as I wish the fecal material had made contact with the air circulation equipment before the election, a new scandal would hit the Bush Administration at its moment of greatest political weakness (at least so far) and badly damage the patriotic aura that gives BushCo its one remaining hold on those not part of its natural constituencies on the relgious right and among the anti-tax fanatics.

2. The fact that Time Warner, faced with the jailing of its reporter, is openly considering compliance makes hash of the argument — offered by Safliar just yesterday — that the threat of jail is futile and should therefore be withdrawn.

3. Apparently none of the people who think there ought to be a reporter’s shield law also thinks that the reporters ought to comply with the court order simply because that’s what law-abiding citizens do. That strikes me as strange, and troubling. I’m not saying that I can’t imagine a situation in which defying a court might be justified, but surely respect for the rule of law ought to have some moral weight.

4. The reporters, if they continue to defy the court, face time in jail. The corporation, if it continues to defy the court, faces a fine of $1000 per day, which its accountants wouldn’t consider material in certifying its quarterly financial reports. The courts ought to have the power to sanction corporations to an extent that would make the consequences of continued defiance as painful for a company as jailing is for an individual. Contempt penalties of $1 million a day (or, better yet, $1000 a day doubling every day) would quickly bring the company to heel. It seems to me unacceptable to have large corporations act as if compliance with lawful court orders, after they have been upheld on appeal, is optional.

5. An individual ordered to testify always has the physical capacity to refuse. But surely document production by an organization is something else. Since Time Warner admits to having the notes, why can’t the judge order the U.S. Marshals to enter Time-Warner HQ and take them? Alternatively, the judge could start jailing whichever corporate officials have custody of the documents, or the CEO if no one lower down admits to knowing where they are. Whatever the position of an individual, a corporation — a merley fictitious person created by the law — shouldn’t be decide whether to defy the law.

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