THERE’S virtually nothing an American newspaper writer likes better than a faux-dramatic adjective or noun. “Unprecedented” is, of course, the odds-on favorite, but “watershed” and “turning point” also come rather quickly to mind. As deadline approaches, they’re the last refuge of the desperate, anxious to wring a bit of attention-grabbing significance from the altogether mundane.
From time to time, in fact, we’ve all been lured into 15 subsequent paragraphs of numbing tedium by the unfulfilled promise of an unprecedented watershed’s conversion into a turning point.
Sometimes, though, there are just such watershed moments, and, when it comes to relations between prosecutors and the press, the trial of former vice presidential Chief of Staff I. Lewis “Scooter” Libby is one of them. Libby, you’ll recall, was convicted this week on four counts of obstructing justice and of perjuring himself before a federal grand jury investigating allegations that Bush administration officials violated the law when they leaked the identity of Valerie Plame, an undercover CIA agent married to former Ambassador Joseph C. Wilson IV, a vocal critic of the Iraq war.
What set Libby’s trial apart from others of its type was this simple fact: Of the 19 witnesses called to testify, 10 were journalists.
Special Prosecutor Patrick J. Fitzgerald didn’t build his case against the onetime White House official with one of those meticulous FBI investigations you see in the movies nor on brilliant courtroom interrogation. Instead, he simply dragged the journalists who had written or reported on the Plame affair before a federal grand jury and threatened them with jail unless they revealed their sources of information. Judith Miller, then a New York Times reporter, did 85 days behind bars before agreeing to testify. She did so in response to another wrinkle Fitzgerald introduced, which was essentially compelling the objects of his investigation to issue blanket waivers to any journalist who had promised them anonymity, releasing them from their promise.
Strictly speaking, the waivers -- including those from Libby -- were not compelled, but when a federal prosecutor pursuing a leaker induces every other target of his investigation to grant such a dispensation, where do you think it would have left the White House official had he been the only investigatory target to refuse? Why not just go all the way and ask one of his lawyers to paint a big round bull’s eye on his back?
How long do you think it will be before federal prosecutors across the country cast an admiring eye on Fitzgerald’s oh-so-efficient and successful double-bind strategy? Just find a reporter who may know something that helps your case, then threaten them with months or even years in jail while dangling the key to their cell before their eyes in the form of one of these semi-coerced “waivers.” At that point, every reporter within reach of a subpoena goes from being a journalist to a kind of reserve G-man.
Lessons of the jails
Now, truth to tell, most of the reporters who trooped into the Libby trial’s witness box were part of a fairly unlovely parade. Most, though not all, had made themselves willing tools of an administration bent on discrediting a guy whose offense was to inform people about how the White House had misled the country about its reasons for invading Iraq. Most, though not all, had chosen to save their own well-cared-for skins by going back on the promise of confidentiality they had given their self-interested and manipulative sources.
There’s nothing new about American reporters going to jail to protect their sources. In 1732, Benjamin Franklin’s brother went to prison rather than reveal the identity of an anonymous contributor to his newspaper to an investigatory committee of legislators. In the 1970s, a trio of reporters, including the L.A. Herald Examiner’s Bill Farr -- later a Times reporter -- and the New York Times’ Earl Caldwell and Myron Farber endured or risked jail to protect confidential sources.
This week, the New York Times’ Adam Liptak drew an important distinction between those reporters and the Libby witnesses. “An earlier generation of reporters had maintained that there were no circumstances under which they would testify against their sources and that the flow of important information to the public could only be guaranteed by taking an absolutist position.” Liptak went on to quote University of Minnesota scholar Jane Kirtley’s opinion that “the modern journalist is not nearly as tough.” According to Kirtley, “Under sufficient pressure, journalists [now] will testify for the prosecution against their source. I don’t think that was a given before all this began.... I wonder if part of it is that Caldwell and Farber were proudly outsiders. By contrast, the journalists who testified in the Libby trial were Washington insiders, and they gave the public a master class in access journalism. It was not always a pretty sight.”
Neither was the recent spectacle in San Francisco, where a pair of investigative journalists for the San Francisco Chronicle resisted demands that they testify in a federal investigation into the BALCO case while protecting -- and, in fact, aiding -- a confidential source who turned out to be a crooked lawyer engaged in perverting the course of justice and lying to a court.
Yet neither of these cases should deter us from drawing the necessary conclusion from the Libby trial, which is that, unless we want to turn every American reporter into a covert agent of federal law enforcement and a professional witness for overzealous prosecutors, Congress needs to pass a federal shield law.
Maryland’s General Assembly passed the country’s first shield law in 1896. California has had such a law since 1935 and, in 1980 -- partly in response to Farr’s jailing -- wrote it into the state Constitution. Essentially, it protects journalists from being compelled to reveal the identity of their sources or from being forced to turn over unpublished material obtained while gathering the news. Thirty other states have shield laws similar to California’s and another 19 recognize some form of journalistic privilege.
As Geoffrey R. Stone, a professor of constitutional law at the University of Chicago and a leading First Amendment scholar, recently wrote on his law school’s faculty blog: “A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society’s interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting ‘involved.’ ... A serious journalistic-source privilege is imperative to the national interest.”
Would it have been outrageous if the reporters in the Libby and BALCO cases had been able to hide behind a federal shield law? Yes, but over the past few years we’ve seen more instances of courageous public-interest journalism -- particularly on national security issues and abuses -- by reporters at this newspaper, the New York Times, Washington Post and others. Many of these reporters have been threatened with subpoenas and, in some instances, prosecution. Most recently, we’ve all seen the undeniable service to the common good done by the Post’s Dana Priest and Anne Hall, whose investigative work uncovered the shocking mistreatment of wounded servicemen and women by negligent officials at the Walter Reed military hospital.
It’s worth giving a dozen Tim Russerts or Judy Millers a get-out-of-jail-free card to protect the ability of reporters like Priest and Hall to do their job. That’s the real lesson of the Libby trial.