Patrick Fitzgerald's Class Act

So I was watching Special Prosecutor Fitzgerald give a post-trial press conference (Real Player required) yesterday on C-SPAN and I couldn't help but be impressed by him and by his office's conduct throughout the entire CIA leak investigation and subsequent Libby trial. In contrast to the behavior of prior prosecutors investigating intra-governmental malfeasance (Kenneth Starr, among others, come to mind), I was particularly impressed with his continued unwillingness, even after the conclusion of the trial, to delve into either the details of the investigation or the indirect consequences of the Libby conviction.

This is in some ways a difficult step for me because I was, and to some degree still am, disturbed by his efforts to aggressively pursue notes and testimony from reporters who had given promises of confidentiality to their sources. In the end, his campaign to secure this evidence led to the imprisonment of Judith Miller, a former New York Times reporter, for over two months on contempt of court charges for her refusal to comply with his subpoenas.

In the press conference, I thought Fitzgerald gave a very reasonable accounting of his actions, and stressed that he thinks the subpoena of reporters' notes and/or testimony is a very serious decision, not to be taken lightly. He highlighted the existence of the Justice Department guidelines which make it clear that reporters should only be subpoenaed when the evidence or testimony they possess cannot be obtained in any less intrusive way and there are also exigent circumstances which highlight the criticality of the materials to be subpoenaed.

He also made the largely fair distinction that, in this case, the sources which were being protected were not whistle-blowers but rather were political operatives who were potentially usurping the tool of source confidentiality in an attempt to achieve a desired public relations outcome. Furthermore, in the case of Libby specifically, Libby was making certain conversations with reporters, and the the timing of those conversations, issues of fact which were inextricably linked to the truth regarding the lies which led to his indictment.

I think Fitzgerald's larger, though somewhat unstated point, was that the notion of source confidentiality shouldn't exist to protect the careers of reporters when crucial evidence in a criminal prosecution is at stake, and when the invocation of a reporter's privilege is made to protect not a whistle-blower who is performing a public service but rather a political operative who is pushing an agenda. I think that is an incredibly difficult distinction to draw, and I think it is a very complex question which needs to be debated and addressed explicitly rather than left in the hands of the Justice Department and potentially individual prosecutors (unsurprisingly, not all at the DoJ are as even-tempered as Mr. Fitzgerald).

That being the case, given where we sit today, I think Fitzgerald tried and largely succeeded in taking a very considered, very balanced course, and made the decisions he made while mindful of the many difficulties which exist in this arena. When he was actually arguing and succeeding in throwing Judith Miller in jail, I didn't have this view, but now that he's had a chance to explain himself a bit (remember at the time the case was still under investigation and he, unlike many prior prosecutors working similar cases, was not commenting on the case at all), I am much more sympathetic to his point of view.

This Op-Ed piece by former Times columnist Anthony Lewis highlights how complex this issue is and makes the surprisingly simple case that maybe we should just let the judicial system decide, on a case by case basis, where the public good is best served. Hardly a solution the "put-the-reporters-in-jail" national security crowd will like, given the distinct lack of balls and strikes to call, but one which might actually serve to best depoliticise the outcome.