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.

Patrick Fitzgerald. Click image to expand.
Patrick Fitzgerald, special prosecutor in the Scooter Libby trial

Thanks to the Valerie Plame investigation, the First Amendment lies in tatters on the ground, and a chilling effect has already started to freeze out press sources.

That's what many reporters and academics would have you believe. But now that the Plame investigation has ended, and all the subpoenas and threats of subpoenas are history, I don't buy it. The press (including me) may have overreacted in regarding special prosecutor Patrick J. Fitzgerald as some sort of Torquemada, and our fears of a shredded First Amendment are starting to look a little overwrought.

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If the press needs somebody to blame for the last four years of First Amendment anxiety, it need look no further than the vice president's former chief of staff, I. Lewis "Scooter" Libby Jr. If he had told investigators the truth or even claimed Fifth Amendment rights against self-incrimination when they came knocking, the press would likely have been spared.

The Intelligence Identities Protection Act that prompted the investigation is an asinine law and should be repealed. Yet no discussion of the Plame inquiry is complete without noting that many in the press encouraged the government's wide-ranging investigations, particularly the New York Times editorial page. When Attorney General John Ashcroft finally recused himself from the investigation and his deputy appointed Fitzgerald as the case's special prosecutor at the end of December 2003, the Times editorial page clapped its hands and said, yeah! Only after Fitzgerald started questioning reporters did the Times have second thoughts.

Fitzgerald had evidence before him the day he took the case that some say should have ended the investigation right there. Deputy Secretary of State Richard Armitage had already volunteered to the FBI that he was a source of the Plame leak to columnist Robert Novak, as first reported by Michael Isikoff and David Corn in their book, Hubris. But the day Fitzgerald took the case, he also had on his desk Libby's claim to investigators that he'd learned of Plame's identity from NBC News' Tim Russert and Russert's statement to FBI Agent Jack Eckenrode that he'd told Libby nothing. When Libby repeated that lie before a federal grand jury in March 2004, Fitzgerald had every reason to believe Libby was lying to cover up a crime or stymie the investigation. (Feeling confused? Print this Associated Press timeline of the Plame case and keep it by your side.)

Libby had two reasons to lie: One, he knew sharing Plame's identity may have violated the Intelligence Identities Protection Act, worth a 10-year prison term. If he lied, he might get away with it, as most leak investigations collapse and nobody gets prosecuted, not even for perjury. Gaming it out in his head, Libby might have thought, So, why confess? Two, he might have lied to protect Vice President Cheney from Fitzgerald's deeper queries. We still don't know what Cheney's complete role in the Plame outing was.

The popular image painted of Fitzgerald by the press (again, I'm one of the painters) is that he used subpoenas and threats of subpoenas to extract the leaker's identity from reporters. The Los Angeles Times' Tim Rutten expresses that view in a recent column that belittles Fitzgerald. Rutten writes that Fitzgerald didn't break the case with a "meticulous FBI investigation" or "brilliant courtroom interrogation." Fitzgerald "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."

That's not exactly true. Fitzgerald and the FBI had made serious headway in the case long before he subpoenaed journalists. Not until May 2004 did he call the first journalists, Russert and Time magazine's Matthew Cooper, to testify. Far from dragging all the reporters before the grand jury to spill the beans on their sources, Fitzgerald strove to reach what everybody—except journalists—might now call reasonable middle ground to collect the truth about the alleged crime. He took testimony from Washington Post reporter Glenn Kessler (see his statement), a deposition from subpoenaed Washington Post reporter Walter Pincus, and a deposition from Washington Post reporter Bob Woodward. How intrusive was Woodward's interrogation? Woodward, who got releases from his sources, said on Larry King Live, "I was able to answer every question."

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?

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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