What I would like to examine, however, is the larger picture. Can we peel our attention away from the Bush Administration and think more generally about reporters and their sources? Katharine Q. Seelye and Adam Liptak write in today's NYT about how very unusual it is to have reporters testifying against their source. Journalists rely on sources, work to develop them, and fight to keep them secret:
It is all but unheard of for reporters to turn publicly on their sources or for prosecutors to succeed in conscripting members of a profession that prizes its independence....At the time of the Pentagon Papers and the Watergate scandal, we scorned a President livid about leakers and made heroes out of journalists who found sources and revealed secrets. Now we are in a new era, with a different President and a different war, and the journalists slip into a different position. Oh, it's all different -- you may say -- when the leak comes from the Administration, by those who would preserve the position of the powerful, in the interest of supporting a war. Are you sure you shouldn't worry about the free press right now?
The three reporters [Tim Russert of NBC News, Matthew Cooper of Time magazine and Judith Miller of The New York Times] all initially resisted subpoenas for their testimony, hoping to avoid not only testifying before the grand jury but also having to appear as a prosecution witness at trial....
"This is exactly the thing," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota, "that journalists fear most - that they will become an investigative arm of the government and be forced to testify against the sources they've cultivated."...
Floyd Abrams, the First Amendment lawyer, said he could not recall a previous case that depended so heavily on testimony by reporters or in which reporters could be so exposed.
"It's troubling that reporters are being asked to play so central a role, but even more troubling that reporters may be obliged to play the role of testifying against someone that they had promised confidentiality to," said Mr. Abrams, who has at various times represented The New York Times, Time, Ms. Miller and Mr. Cooper.
Mr. Fitzgerald said at a news conference yesterday that he had not been seeking a "First Amendment showdown" with the news media and had thought "long and hard" before issuing subpoenas to reporters....
"I do not think that a reporter should be subpoenaed anything close to routinely," he said. "It should be an extraordinary case. But if you're dealing with a crime - and what's different here is the transaction is between a person and a reporter, they're the eyewitness to the crime - if you walk away from that and don't talk to the eyewitness, you are doing a reckless job of either charging someone with a crime that may not turn out to have been committed. And that frightens me, because there are things that you can learn from a reporter that would show you the crime wasn't committed."...
Ms. Miller said she did not know why Mr. Fitzgerald "structured it as he did." Mr. Libby's eventual trial, she said, would bring into focus the balance the courts struck in her case.
"The case has got to raise a profound question about reporters' obligations and freedom of the press against national security imperatives," Ms. Miller said.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was setting a dangerous precedent. "Reading the indictment makes my blood run cold," she said. "This whole thing hinges on Russert."
Basing criminal charges on statements by reporters, she said, "puts us on completely new ground."
[I've added "you may say" to the second-to-the-last sentence for fear of misreading.]
IN THE COMMENTS: Commenters try to turn the discussion to the subject I tried to turn it away from. I try to engage with some of this without getting dragged into the details -- one commenter keeps trying to give me long reading assignments -- and I wind up saying:
As I've said before, I'm not going to invest my time in getting into the details. I find it puzzling on the surface, and I bet most ordinary Americans with places to go and lives to live feel something fairly similar. Who's going to delve into all of this now? Only people like you who are hot to drag Bush down. I don't think Bush is hurt as much as you want him to be, because the whole thing is too hard to understand at this point. And normal folks never cared about Scooter Libby anyway. I accept that a man has been indicted. Let him go to trial. I'm a little sad that my effort to start a more general conversation about the free press got diverted into the very material I've said all along I'm not going to study. You'd have to pay me to do this sort of legal work. You are fueled by political fervor. What's my motivation to read the things you're reading? None!Then a commenter who calls himself John Harvard gets us very nicely focused on the problem the prosecution presents for the reporters who will be called as witnesses:
I have read the indictment. Every count boils down to this: Libby made statements to FBI agents or to the Grand Jury about the content of conversations with Russert, Miller, and Cooper. These statements disagree with Russert/Miller/Cooper's statements about the content of these conversations. Therefore, Libby made false statements and perjured himself.Is this what we are going to see: Russert shredded on the witness stand?
In other words, the case turns on the credibility of a political appointee versus the credibility of three journalists. Can you say, "field day for impeaching witnesses?" And since Libby does not have to take the stand at trial, we will be treated to the spectacle of every single thing these three journos ever wrote or said on camera being put under a microscope. Not to mention the things Russert said over his own career as a political hack. Find enough untrue or dodgy things in anything these three have said and written, and the prosecution case falls apart.
So it's Libby's freedom (his freedom through Jan 19, 2009, anyway)versus the reputations of three reporters. Which side has more to lose?
This is the true cost of turning reporters into judicial witnesses: their public record becomes a matter of, well, public record.