Libby prosecutor Patrick Fitzgerald didn't savage the First Amendment.

Media criticism.
March 13 2007 6:54 PM

The Case for Patrick Fitzgerald

The Libby prosecutor didn't savage the First Amendment.

(Continued from Page 1)

Fitzgerald subpoenaed Judith Miller in August 2004 because he needed to prove that Libby had spoken to Miller about Plame weeks before his alleged conversation about Plame with Russert. (She fought the subpoena to the legal end and ultimately spent time in jail before accepting Libby's "waiver.") Cooper agreed to give a deposition about his Libby contacts—after which Fitzgerald famously demanded more information from Cooper with another subpoena.

I won't defend any of these subpoenas, but if it's motives and methods we're talking about, it now seems clear that Fitzgerald used that big club solely to prove Libby's justice-obstructing lies. Those lies gave him good reason to believe the scandal might extend up the chain of command to the vice president. If Libby was lying about Russert, was he lying about Cheney's role?

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To put a finer point on it, was Libby consciously using the press as a shield, thinking no prosecutor would dare rile reporters by using subpoena power to puncture his lies? If Libby used the press consciously, he gives every reporter a paradox to consider: If journalists are in the business of finding and printing the truth, how tolerant should we be of liars, especially liars whose lies bring subpoenas down on the press?

Fitzgerald tried to make the case that he wasn't a runaway prosecutor at an October 2005 press conference where he announced charges against Libby. He claimed that his investigation wasn't an "exceptional case," that it was conducted on "narrow grounds," and that he had followed the Department of Justice guidelines that call for prosecutors to exhaust every alternative source before subpoenaing journalists. He reiterated his view at a post-conviction press conference, adding that "resorting to questioning reporters should be a last resort in the very unusual case." Lip service or his genuine sentiment? You be the judge.

After the Libby conviction, New York Times reporter Adam Liptak gathered distressing quotations from the First Amendment lobby about the case's chilling effect on journalism. Yet during the years that the Plame investigation lumbered on, shedding one reporter subpoena after another, rumors of a new big chill have not deterred the whistle-blowers who have helped newspapers break big stories about secret prisons, secret NSA surveillance, and secret bank-monitoring programs.

In the post-Libby era, confidential sources will still "need" reporters. It will always be risky for a source to leak to the press, but if I were one, I'd worry less about a subpoenaed reporter undoing me and a lot more about the usual polygraphs, phone records, physical surveillance, wiretaps, computer audits, and security cameras.

******

Why wasn't Karl Rove indicted? Hubris reports that he almost was, but proving Rove perjured himself because he couldn't recall a conversation with Cooper that he later recalled when an e-mail refreshed his memory would have been difficult. Libby, on the other hand, told investigators and the grand jury something very specific about what Russert told him, which could be disproved—and was to the satisfaction of a jury. Share your convictions at slate.pressbox@gmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)

Jack Shafer was Slate's editor at large. You can follow him on Twitter or email him at Shafer.Reuters@gmail.com.

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