• U.S.

How Libby’s Trial Hurt the Press

4 minute read
Norman Pearlstine

The sentencing of I. Lewis (Scooter) Libby, scheduled for June 5, is the most tangible result of Patrick Fitzgerald’s lengthy investigation into who leaked classified information about Valerie Plame’s employment by the Central Intelligence Agency.

Was it all worth it?

The investigation followed allegations that Libby and Karl Rove, responding to criticism of the President and his rationale for waging war with Iraq by Plame’s husband, former diplomat Joseph Wilson, had compromised her identity as an undercover agent. While the Administration’s behavior was tawdry, there was no proof that intelligence laws had been broken or that an investigation was necessary. Nonetheless, once convinced that Libby (but not Rove) had lied under oath, the prosecutor argued that he had no choice but to indict, charging Libby with perjury, making false statements and obstruction of justice.

At this winter’s trial Fitzgerald strongly suggested that his real target had been Dick Cheney and that Libby was a fall guy. There is a “cloud over the Vice President,” Fitzgerald said, arguing that Libby’s lies kept the prosecutor from getting to the truth. Fitzgerald accused the White House of shading intelligence to justify its attack on Iraq, then trying to silence people who questioned its motives. “A critic points fingers at the White House,” he told the jury, “and as a result his wife gets dragged into the newspapers.”

Ten of the 18 witnesses who testified at Libby’s trial were journalists, and three of them–Matt Cooper (formerly of TIME), Judith Miller (formerly of the New York Times) and NBC’s Tim Russert–gave testimony that was essential to the government’s case. Fitzgerald convinced the jury that Libby lied when he denied telling Cooper and Miller about Plame and when he said he had first learned of Plame’s identity from Russert, instead of from Cheney.

Although Fitzgerald says he “was not looking for a First Amendment showdown,” that is what he got. By issuing subpoenas that required reporters to betray their sources, Fitzgerald created the showdown. During my tenure as Time Inc.’s editor-in-chief, we spent millions of dollars–on our own behalf and that of Matt Cooper–fighting the special prosecutor’s subpoenas in the courts. We lost every round. Only when the Supreme Court refused to hear our plea did I agree to turn over our notes to the grand jury.

Because Fitzgerald prevailed, journalists testified against their will, becoming tools of the prosecution or of Libby’s defense team. Some ugly truths emerged about one of the biggest problems with Washington journalism–a symbiosis between reporters and sources in which the reporters often think that it is their first job to protect their sources and that informing the public comes second.

Miller, who spent 85 days in jail before agreeing to testify before a grand jury, tarnished her reputation and that of the Times. She said at Libby’s trial that she had forgotten a crucial meeting with the defendant until she discovered references to it in a shopping bag full of her notebooks under her desk. She also testified that she would describe Libby in any story she might write as a “former Hill staffer” instead of a senior Administration official. It was a telling example of her willingness to breach journalistic ethics in order to coddle close sources.

Fitzgerald’s refusal to release affidavits he filed to justify compelling Cooper and Miller to testify remains troubling. He says the need to preserve grand-jury secrecy requires him to oppose the affidavits’ release. But without the information Fitzgerald is withholding, it remains difficult to weigh his charges against Libby and the Administration and conclude that Fitzgerald’s end justified his means.

Fitzgerald’s investigation has set a precedent that will encourage other prosecutors to seek testimony from the press, forcing other journalists to betray their sources. Journalism and the public interest will suffer. It is dispiriting that the Supreme Court refused to hear our plea. But in the absence of a favorable court decision, Congress should pass a shield law to protect journalists and their sources.

Reporters Without Borders publishes a press-freedom index, based on responses from media organizations and other experts around the world. The U.S. ranked 53rd out of 168 countries last year, trailing embarrassingly behind Bosnia, Namibia and the Dominican Republic. Without relief from continued assaults on the press, we shall fall further toward Russia (147) and last-place North Korea.

Pearlstine, former editor-in-chief of Time Inc., is the author of Off the Record: The Press, the Government, and the War over Anonymous Sources

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