As a rule, reporters prefer to cover court cases, not argue them. So it was disturbing to see portions of my March/April CJR story, “Attack At The Source,” cited by special counsel Patrick Fitzgerald in his brief (140K PDF) opposing New York Times reporter Judith Miller’s final request to stay out of jail. Basically, Fitzgerald quoted passages from my piece, which explored at length the knotty legal questions raised by the Plame case, to argue that, contrary to Miller’s assertions, most journalists do not support her claim of privilege. I wasn’t alone in being granted this honor — Fitzgerald also quoted the writing of more esteemed journalists such as Anthony Lewis, Mark Bowden (also in CJR), and Michael Kinsley, to bolster his argument. But that did little to lessen my dismay.

I can’t claim that Fitzgerald misquoted me: a lot of journalists I spoke to were troubled by Miller’s stand. But Fitzgerald’s brief ignores several relevant points. First, most journalists I spoke with didn’t so much disagree with Miller’s privilege claim as thought that the facts in the Plame case were unfavorable and unlikely to result in a legal victory for journalism (this proved correct). Given the unfavorable terrain, they thought it wiser for Miller and the Times to try and work something out with Fitzgerald rather than risk establishing a bad precedent on reporter’s privilege. I’m satisfied that Miller and Times publisher Arthur Sulzberger, Jr., were fully aware that the odds in court were against them, but chose to fight anyway. It was a principled stand, one that I, and I’m sure many other journalists, respected, even if they thought it unwise.

Second, Fitzgerald cites a point made by Bob Woodward in my piece that a case like the Plame leak was not of the same stature as the Pentagon Papers and therefore was not a case “you’d choose to make law on.” Again, this is accurate as far as it goes, but it ignores the context of the quote. Woodward was commenting that Robert Novak’s story revealing Plame’s identity was not sufficiently important to justify his reliance on anonymous sources. Judith Miller, of course, never used anonymous sources to unmask anyone. Indeed, she never published anything about Plame. She merely did some reporting on the controversy after the fact.

In his brief, as he has throughout the Plame investigation, Fitzgerald seems incapable of even mentioning Novak’s name. The relevant portion of my story originally read:

“… there is a sense that the Plame outing through Novak by his sources was the kind of sleazy Beltway maneuver that represents the worst use of confidential information.”

But here’s how the redacted version appeared in Fitzgerald’s brief:

“… there is a sense that the Plame outing … was the kind of sleazy Beltway maneuver that represents the worst use of confidential information.”

Novak has magically disappeared! — much as he has from the entire record of Fitzgerald’s investigation to date, despite the fact that he, not Miller, was the conduit for the (possibly) illegal leak.

As an ex-lawyer, I understand that this is not the relevant question for Fitzgerald. Miller is not in jail for reporting on the Plame leak. She’s in jail for refusing to testify about her reporting on the Plame leak. It’s an easy legal distinction, but a difficult moral one. How can it be that a reporter who never even wrote a story about Plame is in the cooler, while the prime instigator is free to enjoy his martinis and prime rib?

Douglas McCollam is a contributing editor to CJR.