The nation’s pre-eminent 1st Amendment attorney had just watched federal marshals take his client to jail for refusing to name her confidential sources. Now he stood in front of reporters to answer questions.
“You have a very successful lawyer before you,” Floyd Abrams said, a rueful smile flitting across his face.
The words were true–he has been at the forefront of efforts to safeguard a free press for four decades–but also important, the self-deprecating manner was vintage Abrams, say those who know him.
Since first springing to national attention as one of the lead lawyers in the Pentagon Papers case in 1971, Abrams has been the news media’s legal champion in scores of cases in which its 1st Amendment rights have been threatened, most recently in the case of New York Times reporter Judith Miller, now locked up in an Alexandria, Va., jail for defying a federal judge. The judge had ordered her to testify to a grand jury investigating who leaked the name of CIA operative Valerie Plame, a possible violation of federal law.
A former client of Abrams’, Time magazine’s Matthew Cooper, is expected to testify before the grand jury Wednesday, according to Abrams.
On Tuesday, the White House affirmed its support for Karl Rove, perhaps President Bush’s most trusted and powerful adviser, after the disclosure earlier this week that he had mentioned a CIA employee’s work at that agency to Cooper, whose notes and e-mail were turned over to the grand jury.
Abrams’ career has lifted him into the loftiest reaches of American journalism and jurisprudence, but by all accounts he has remained remarkably grounded in the day-to-day realities of work, family and friends.
Sidney Zion, a lawyer-turned-journalist who has known Abrams since their days at Yale Law School in the 1950s, notes that Abrams, 69, still identifies himself on the phone by the nickname his parents used, “Laddie.” And his two grown children recall fondly his telling them bedtime stories about his legal cases.
“We always knew we could stay up later if we asked dad about his cases,” said Dan Abrams, NBC’s chief legal correspondent and host of a daily news show on cable channel MSNBC. “I think what was striking was that he was able to translate very complicated legal issues into terms that a child could understand, and I think that’s what makes him a great lawyer.”
Unlike in the Miller case, Abrams’ advocacy usually has resulted in a win for his clients. Most notably, the Pentagon Papers case, in which he represented The New York Times before the Supreme Court, proved to be a landmark 1st Amendment ruling. In one of the clearest rejections of an attempt to pre-empt publication, the court said the federal government did not have the right to prevent the Times from printing the Pentagon’s classified history of U.S. military involvement in Vietnam.
“He has carved a niche for himself as the person who has been the most effective representative of the press,” said professor Geoff Stone of the University of Chicago Law School, a 1st Amendment expert who has known Abrams professionally for about 20 years. “His contribution has been, I think, to help sensitize courts, the academy and the public to the importance of a robust protection of the freedom of the press.”
That mission seems more important than ever now, when journalism as a whole is facing challenges on seemingly every front. Liars, plagiarists or less-than-fastidious fact-gatherers have been exposed at The New York Times, USA Today, CBS News and several other news organizations, including the Chicago Tribune. Readership is down for newspapers and newsmagazines; the major television network evening newscasts are losing viewers. And on the Internet, blogs delight in highlighting every miscue of the “mainstream media.”
It is little wonder that the public’s trust in the media has plunged, a development that Abrams says is reflected in courtrooms.
“There is significantly less sympathy for and appreciation of the role of the press in American life,” he said during an interview in his lower Manhattan office. “As any lawyer, such as myself, who appears in front of juries can attest to . . . significant numbers of them have little or no confidence in the press at all.”
Although the media’s current problems clearly distress him, Abrams did not start out with such a strong belief in the importance of a free and vigorous press. As he recalls in his recently published legal memoir, “Speaking Freely,” he believed as an undergraduate at Cornell University that the press should be severely restricted in what it could report about a criminal defendant before a trial.
College debater
A lifelong New Yorker who grew up in Queens and has lived on Manhattan’s Upper East Side for decades, Abrams recalls that he won several college debating competitions advocating that position and even wrote his senior thesis on that topic.
After graduation from Yale Law School and a few years as a legal researcher and clerk for a federal judge, Abrams landed a job in 1963 as an associate at Cahill Gordon Reindel, the law firm where he still works, although now as a partner with a spacious but cluttered corner office.
On Christmas Day that year he married his wife, Efrat, in Haifa, Israel. A retired Hebrew teacher and former docent at the Guggenheim Museum, she is “the only non-lawyer in the family,” Abrams says with a laugh. In addition to Dan, 39, they have a daughter, Ronnie Abrams, 37, who is an assistant U.S. attorney in New York.
The children were exposed to a lawyer’s life early. In addition to the bedtime stories about cases, their father also took them to the office on weekends.
“When someone loves his job as much as my dad did, it’s hard not to be influenced by that,” said his daughter, who recalls traveling with her father to court appearances in upstate New York, Las Vegas and San Francisco. He even took her to the U.S. Supreme Court, where she fell asleep–“but not during my father’s argument,” she added.
Abrams’ thinking about restrictions on the press began to change in the late 1960s. One of his firm’s clients was NBC, whose reporters were receiving an increasing number of subpoenas seeking their notes and confidential sources. Abrams worked on several of those cases, an experience that brought him into his first contact with journalists.
“I found as a group they were a lot more interesting and a lot more fun than lawyers,” Abrams said, his piercing blue eyes disappearing behind the folds of his eyelids as he smiled. “And I also came to the view that what they did tended to be a lot more important than what lawyers did.”
The turning point in his career, however, involved a new client, The New York Times, which found itself embroiled in a legal battle with the Nixon administration in 1971 when the government sought to stop the publication of the Pentagon Papers. The newspaper’s law firm at the time refused to represent it in the case, having counseled the paper not to print the Defense Department’s secret multivolume history of the Vietnam War. It later was revealed that then-U.S. Atty. Gen. John Mitchell also asked the firm not to take the case.
By one of those coincidences that change a life, Abrams and Alexander Bickel, a professor of his at Yale Law School, had just been host to the Times’ in-house attorney and a group of top-ranking editors at a lunch to discuss a different case involving confidential sources.
At 1 the next morning, the Times attorney called Abrams at home with the news that the Nixon White House was going to try to stop the paper from printing further installments after two lengthy stories on the Pentagon Papers already had run. Would Abrams and Bickel represent the Times?
The Pentagon Papers became a landmark case because it involved the legal concept of “prior restraint,” or preventing a media outlet from printing or airing a story. That strikes at the heart of the 1st Amendment. In little more than two weeks, Bickel and Abrams, then a 34-year-old attorney in his first year as a partner at Cahill Gordon, were arguing before the Supreme Court.
The resulting ruling was a curious victory for the press. The 1st Amendment, the court said, did not absolutely rule out prior restraint; decades earlier the court had ruled that the government could stop newspapers from publishing the most sensitive national security information, such as troop movements in wartime.
But in this case, the court declared, the government had failed to make a convincing argument. Since then, the government has sought a prior restraint only once, in 1979, when The Progressive, a Madison, Wis., magazine, said it was about to publish a story showing how to build a hydrogen bomb. Although initially successful, the government later abandoned its effort, and the magazine ran the story.
“No other country has barriers as high against governmental interference in what may be printed, and that comes in good part from the result of the Pentagon Papers case,” Abrams said. “Opinions send messages beyond the pure legal result of them. The Supreme Court can say there is no absolute bar to a prior restraint, but if they keep striking down prior restraints, the lesson that lawyers will learn, and that eventually their clients will learn, is that there is no real weapon in advance of publication.”
By the end of the Pentagon Papers case, Abrams had become a well-known 1st Amendment lawyer–a phrase that he views as a mixed blessing.
“First of all, it sounds as if it’s all I know, and I do a lot of other work,” said Abrams, who estimates he spends about 75 percent of his time on free-press cases. “And it also sounds like you don’t know the rest of the amendments.”
Showdown with Giuliani
Among other notable cases, Abrams went on to represent NBC when entertainer Wayne Newton filed a libel suit against it for reporting that he had ties to organized crime, a case that dragged on for 12 years before NBC won. More recently he prevailed in a showdown with former New York Mayor Rudolph Giuliani over whether the mayor could order the removal of a painting from the Brooklyn Museum of Art that he found objectionable.
Family members and associates attribute Abrams’ success in court to an ability that many successful lawyers share–a talent for translating difficult legal concepts into terms that juries can understand. In doing so he also casts a sympathetic light on the role of journalists in a free society.
“In a difficult area, he makes things clear without coming off as being a zealot,” said Robert Sack, a federal appellate judge in New York who was The Wall Street Journal’s attorney for many years. “The lawyer has got to act as a bridge between his or her client and both the courts and the rest of the world. He’s got to be able to interpret the journalist’s world and the journalist’s challenges into the world of judges and lawyers.”
But even Abrams’ vaunted talents were not enough to prevail in his most recent celebrated case, in which two reporters, Cooper and Miller, became the subject of prosecutor Patrick Fitzgerald’s efforts to track down the source of a White House leak. Fitzgerald, the U.S. attorney in Chicago, was put on the case by the Justice Department.
That leak resulted in a column by syndicated columnist Robert Novak, in which he revealed the identity of a possibly covert CIA officer, Valerie Plame. She is the wife of Joseph Wilson, a former U.S. ambassador who wrote an op-ed column for The New York Times in which he charged that the Bush administration had deliberately used faulty intelligence in buttressing its case for invading Iraq.
Call to daughter
Fitzgerald first came to Abrams’ attention in May 2004, when Cooper, his client at the time, received a subpoena to testify before the grand jury investigating the leak. Abrams recalls that his first move was to call his daughter, who had known Fitzgerald when he worked in the U.S. attorney’s office in New York.
“I think Pat’s a great individual and a great prosecutor,” she said. “I said to my father that he has one of the best reputations of anyone in the office.”
Earlier this year, Time switched lawyers, retaining former Solicitor General Theodore Olson. But by then, Miller, also Abrams’ client, had been subpoenaed.
Time eventually gave Cooper’s notes to Fitzgerald, and Cooper last week avoided jail by agreeing to testify, saying his source had released him from his promise of confidentiality.
Miller, who refused to testify, now sits in jail. Abrams hugged her before she was taken into custody.
“It was an especially disturbing sight, and an emotionally wrenching one, to see marshals standing up in back of Judy’s chair and alongside her to put their hands on her, as if she was about to flee,” Abrams said. “Maybe criminal lawyers are used to this, but I’m sure not.”
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soswanson@tribune.com
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Floyd Abrams speaks …
On the order by a federal judge that his client Judith Miller, a New York Times reporter, be jailed for refusing to reveal her confidential sources:
“I think the ruling in the case is a terrible blow to the ability of journalists to gather news based on a promise of confidentiality. The issue is not just what the court said the law is. The issue is, what is the message that goes out to the world from this ruling? One of my greatest concerns about this case is that the message it may send is that sources can no longer place the trust in journalists, or journalistic organizations, that they have in the past, and that journalists themselves may have to begin to warn sources that they cannot give an absolutely firm promise of confidentiality.”
On his appearance this spring on “The Daily Show With Jon Stewart” to promote his book, “Speaking Freely” and what the popularity of the program says about how America gets its news:
“I’ve been on lots of programs, including very prominent news programs, but the amount of people, sometimes on the street, who would stop me and say, `I saw you on “Jon Stewart,”‘ is just stunning. You have a new world in which it’s not at all clear where America is going to be getting its news from in five years. I’m grateful that Jon Stewart is so thoughtful, but we cannot exist as a nation dependent on the thoughtfulness of our comedians.”
On his opposition to the McCain-Feingold legislation limiting certain campaign contributions, which he views as a restriction on free-speech rights:
“One of my frustrations is that so many people with whom I often agree politically and socially will not even grant that there’s a serious 1st Amendment price imposed by this legislation. People want life to be too easy. They want to have 100 percent of virtue on their side and not to acknowledge that there are serious costs involved.”
