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The Case for Patrick FitzgeraldThe Libby prosecutor didn't savage the First Amendment.

By Jack Shafer
Posted Tuesday, March 13, 2007, at 6:54 PM ET
Patrick Fitzgerald. Click image to expand.

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.

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The Intelligence Identities Protection Act that prompted the investigation is an asinine law and should be repealed.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."

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Jack Shafer is Slate's editor at large.
Photograph of Patrick Fitzgerald by Alex Wong/Getty Images.
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