Not So Fast, Mr. Fitzgerald

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?

I also know it is likely that Patrick Fitzgerald could not care less. Law isn’t generally about equitable outcomes; it’s about enforcing the rules even if the outcome appears unjust. No group of lawyers is more attuned to this truth than prosecutors, and none more zealous in enabling it than special prosecutors like Fitzgerald. Unconstrained by budgetary or time limitations, they tend to become, as we have seen in the past, perpetual prosecution machines willing to man the barricades at every mole hill and treat recalcitrant witnesses on par with Mafia thugs. As Washington lawyer Chuck Tobin astutely noted in my piece, courts and prosecutors tend to see the administration of justice as an objective that trumps all other concerns. In that process, they view any act of defiance as defiance of the system of justice as a whole that must be crushed regardless of the underlying importance of the information sought.

I have little doubt that when the history of the Plame investigation is finally written, what Judith Miller knew and when she knew it will turn out to be of, at most, secondary importance. Despite that, if Fitzgerald had his way, she’d face criminal prosecution and perhaps rot in jail indefinitely. In a nasty but little-observed footnote in his brief, Fitzgerald argued that Miller’s confinement, now set to end when the grand jury expires at the end of October, could be “continued or reimposed” if she refuses to give information to “successor” grand juries.

Inspector Javert couldn’t have put it any better.

Fitzgerald is being a hard-ass to exert maximum pressure on Miller, and the prosecutor clearly believes time in jail will lead Miller to reconsider her stand. I wouldn’t count on that. Miller seems more than ready to go the full boat, if necessary, to make her point. Miller’s critics have often portrayed her as trying to place herself “above the law.” But before being led away to jail earlier this week, she plainly acknowledged that was not her view. Miller understands the law is against her, but through principled defiance, she hopes that will change in time.

It probably won’t, but disobeying the law in order to alter it is central to American history. “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?” Thoreau wrote in Civil Disobedience, “It is not desirable to cultivate a respect for the law, so much as for the right.”

It is dangerous to be right when the government is wrong. — Voltaire

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Douglas McCollam is a contributing editor to CJR.