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March 09, 2005

Novak-Plame-gate commentary update

There have been competing op-eds in the last few days on the ongoing investigation into the outing of ex-CIA operative Valerie Plame by douchebag of liberty Bob Novak.  In today's WaPo, former federal prosecutor Randall Eliason argues that in an investigation like this one, where the leak itself is the alleged crime, it's hard to see how the prosecutor could possibly do his job without talking to the people who know who the leaker is (the actual leaker will of course take the Fifth and refuse to testify).  Key quote: "This isn't even a close call. When there is critical, available, non-privileged evidence of a potential federal crime, the prosecutor's duty is to pursue that evidence."  Yup - the rule of law would seem to call for nothing less.  Eliason also has a good retort for those who claim that the reporters under subpoena to testify were "just doing their jobs":

These reporters are being questioned not about anything they wrote or didn't write but about who was doing the leaking. The leak is the potential crime, and any reporters who received the leak have critical evidence, whether or not they wrote about it.  Finally, critics complain that reporters are being threatened with jail for simply "doing their jobs." This has a nice rhetorical ring to it, but it isn't true. Nobody's job description includes disobeying lawful court orders. The reporters have been found in contempt not for any news-gathering or reporting but for refusing to testify without a recognized legal excuse.

Again, yup.  On the other side of the divide, ex-congressional staffer Pat Holt pretty much toed the MSM party line last week in the Christian Science Monitor.  But Holt's argument has some significant missteps:

  • "Journalists have long insisted on protecting the confidentiality of their sources. They argue, rightly, that this is essential to establish a relationship of trust; otherwise, some important sources wouldn't tell them anything and reporting would be inhibited."  This general proposition proves nothing in the abstract.  The point is that some disclosure of information to the public should be inhibited.  When a government source illegally leaks information that damages national security for the purpose not of serving the public interest but of pursuing a political vendetta, there are very good reasons to "inhibit" that kind of "reporting."  But, it is argued, maybe there was no crime in this case.  Fine.  Let the prosecutor figure that out - that's his job, after all.
  • "Even more disturbing, the special prosecutor submitted secret evidence to the appeals court, and neither Ms. Miller, Mr. Cooper, nor their attorneys were allowed to see it. What has happened to the Sixth Amendment, which gives those accused the right to be confronted with the witnesses against them? Miller succinctly described the situation: 'I risk going to jail for a story I didn't write, for reasons a court won't explain.'"  Memo to Pat Holt (and Judith Miller): the Sixth Amendment applies only to persons "accused" of a crime, and Miller and her colleague Matthew Cooper are not "accused" of anything - they're witnesses.  They risk going to jail not because they're accused of a crime, but because they won't tell the prosecutor what they know, so they are in contempt of court.  About that, the Sixth Amendment has nothing to say.
  • "Leaks come from the government; journalists simply report them. To complain about this is like shooting the messenger who brings bad news."  Well, this is just silly.  The point here is that the leak itself may have been a crime, and that the reporters are the only people who know who the alleged criminal is.  This has nothing to do with shooting messengers.  It has everything to do with investigating a crime.  Why the MSM can't figure that out is beyond me.

I continue to think that D.C. Circuit Judge David Tatel basically got it right when he wrote that reporters have some degree of privilege under the common law to shield confidential sources, but that in this case the public interest in uncovering evidence of a possible crime outweighs the news value of the information that was disclosed.  Reporters, even New York Times reporters, are not above the law - they have responsibilities to their fellow citizens to assist the government in investigating criminal activity, just like the rest of us.  It's high time they accepted that.

Posted by David at 11:10 AM in Law and Lawyers, National | Permalink


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Thank you for this clear, concise and accurate description of the position of Ms. Miller, Mr. Cooper and Mr. Fitzgerald in this case.

Posted by: Burnett Britton | Mar 9, 2005 4:22:21 PM

If journalist can't protect their sources than who is going to talk to them?
Having been a real jouranlist for more than 22 years I understand Miller and Cooper's stand. On the other hand, I'd love to see Karl Rove frog walked to jail in an orange jump suit. That truly would be justice.

Posted by: mark | Mar 9, 2005 5:34:09 PM

The nice thing about Judge Tatel's analysis is that it does allow journalists to protect their sources, as long as the source is worth protecting. Is there some risk that a court will later decide that the source wasn't worth protecting? Sure. But I doubt that will stop real whistleblowers with real information to pass on. You might be interested in a journalism professor's take on this - there's a link in the "update" to this post.

Posted by: David | Mar 9, 2005 6:03:04 PM

I think it is a perfect example of left wing wacko bias in the media when Burnett Briton closed his post, above. A self-proclaimed "real" journalist, Burnett is not exactly a savvy advocate for journalistic integrity or objectiveness. With "real" journalists who have an axe to grind and an agenda to push like Burnett, does it matter how the court system rules? We're not going to get solid, honest reporting anyway. Instead, Rather and the NYT will publish, "all the news fit to make up."

Posted by: Chuck | Mar 31, 2005 12:40:48 PM

Hey Chuck,

With all due respect, just what the hell are you talking about? I googled Mr. Britton, and he would seem to be a lawyer or writer, but not a journalist. Please clarify.


Posted by: Charley on the MTA | Mar 31, 2005 3:15:47 PM

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