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The media's legacy in the matter of Scooter Libby is not something to celebrate

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Libby Trial Reveals Media Hypocrisy

The media’s legacy in the matter of Scooter Libby is not something to celebrate

The newly eventful jury deliberations are grinding ahead in the trial of Lewis “Scooter” Libby. Simultaneously, the mainstream media is preparing its post-mortems.

Libby, Vice President Cheney’s former chief of staff, is charged with obstructing the government’s investigation into the unauthorized disclosure of Valerie Plame Wilson’s (still unexplained) affiliation with the CIA. The case will be decided by 11 jurors rather than the standard dozen because Monday’s courtroom hi-jinks involved the removal of a juror, three days into deliberations.

The juror, a former curator of New York City’s Metropolitan Museum of Art, was removed for exposing herself to extraneous media reporting about the case. Anyone who has followed the tortured four-year history of this teapot tempest could easily understand why that would concern the judge. To say this episode has not been the Fourth Estate’s finest hour would be a galactic understatement.

Time after time, the Plame imbroglio presented opportunities for hypocrisy, which the press embraced with unseemly enthusiasm.

Notwithstanding that leaks are reporting’s stock in trade, the media made common cause with partisan Democrats to demand the investigation that led to Libby’s travails. That, even though publication of the unremarkable fact that Plame — like thousands of others — works for the CIA did not remotely harm national security. (You can always tell when a leak has really damaged national security: The media laud it with a Pulitzer Prize.)

For two years, reporters covered the investigation as if a deep, dark mystery were afoot. That, despite the fact that many media majordomos actually knew both that Plame worked for the Agency and that the source of the original notorious leak, to reporter Robert Novak, had been not Libby or some other administration operative but rather former Deputy Secretary of State Richard Armitage, a press favorite and sometime critic of Bush insiders.

Meanwhile, even as their news and editorial pages were telling the American people that this comparatively trifling matter was the crime of the century, the media were telling a top federal court that no crime had been committed.

That’s right. In early 2005, while independent counsel Patrick Fitzgerald (an old friend and colleague of mine) was still weighing whether indictments should be filed, the New York Times sought to quash subpoenas. The Gray Lady encouraged submission of a friend-of-the-court brief to the U.S. Court of Appeals in Washington, and the lemmings dutifully followed: ABC, NBC, CBS, CNN, the Associated Press, Reuters America, Newsweek, the Washington Post, the Tribune Company (which publishes the Los Angeles Times and the Baltimore Sun, among other papers), and the organization of White House Correspondents — a veritable banquet of Bush bashers.

Accusing the administration of high crimes by day, they were representing to federal judges by night that the grand jury had no need to hear witnesses because the whole circus — three rings of their own creation — was a waste of time.

By then, of course, the investigation they’d so ardently demanded was turning on them. Leakers, after all, need someone to leak to. The whole idea being to get the word out, that someone, invariably, is the press. And the shortest distance between two points being a straight line, the best way for a prosecutor to unmask the leaker is to interrogate the leakee.

Like the first moth of summer, the media played with fire and got ruinously burned. The diva-martyr was Judith Miller, who spent weeks in jail after being found in contempt of court for spurning a grand jury subpoena seeking the identity of the official who’d told her about Plame.

Naturally, the press wants to make damn sure nothing like that ever spoils the party again. So its Libby post-mortem will be all about self-preservation.

The case is wildly unpopular. There is a general feeling that Fitzgerald went overboard to nail a big fish on a process crime (lying to investigators) under circumstances where the underlying offense (intentionally disclosing classified information) could not be proved. On the other hand, the big fish in question, Libby, did give inaccurate information to an official investigation, something that oughtn’t be tolerated. With no obvious heroes but tons of self-interest, the media’s pose for a disgruntled public is to shroud themselves in the First Amendment and plead: Protect us so this never happens again.

They shouldn’t get away with it.

Even in the four narrow corners of the Libby prosecution, their plea is overblown. Miller may have made an implied promise of confidentiality to Libby, but she did not have to go to jail over it.

All veteran reporters well know that such promises are legally unenforceable — they are only as good as the reporter’s willingness to endure imprisonment rather than out a source. But quite apart from that, Libby waived any interest in confidentiality. Like other government officials, he represented to Fitzgerald that he wanted to cooperate fully with the investigation, so Fitzgerald asked for, and Libby gave, an assertion that he was releasing any reporters he may have spoken to from any promise of confidentiality.

Libby, aside from being a powerful public official, is himself a highly experienced lawyer and was, in this instance, represented by highly experienced legal counsel. Yet Miller, in familiar media arrogance, determined she knew better. She unilaterally decided that Fitzgerald must have coerced the waiver. She declined to honor it, compounding lawlessness with haughtiness. She finally gave in when Libby personally assured her that the waiver was voluntary, leaving a baffled Libby to wonder why she ever doubted that in the first place.

More to the point, recognizing the critical role of a robust press in a functioning democracy, the Justice Department adheres to exacting internal protocols regarding subpoenas for media information. Even though there is no “reporter’s privilege” akin to the right of lawyers to safeguard their clients’ confidences, priests their penitents’ confessions, or spouses their marital communications, the government conducts itself 99.9% of the time as if there were such a right. Prosecutors are generally not permitted to compel information from journalists.

There are three exceptions: (a) the exceedingly rare instance when the case is extraordinarily significant and the reporter is the only available avenue for solving it; (b) when the reporter is a direct witness to the commission of a crime (in which case reporters, like all citizens, are expected to provide the public’s investigators with testimony about what they saw or heard); and (c) when the reporter is complicit in a crime, in which case the reporter is like any other suspect and is owed no special deference.

That is the way it has been for decades, plainly without any diminution in the press’s vigor or its propensity to speak truth to power. Modern reportage, in fact, provides us with more information about people, places and things than we’ve ever wanted or needed to know.

Yes, the Libby leak appears to have been exaggerated out of all proportion. Leaking classified information, however, remains a potentially serious crime. A reporter on the receiving end of the leak is a witness — likely, the only witness — to that crime. Giving the journalist a privilege to protect sources — namely, the public officials whose leak violates a solemn oath and may gravely imperil national security — would mean we could never root out and bring to justice those responsible for risking, or ending, American lives. That, besides being unnecessary, is utterly unacceptable.

The media’s legacy in the matter of Scooter Libby is not something to celebrate. It is even less something to reward … to the detriment of us all.

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Written By

Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.

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