Going to the Mat for the Bad Guys

Reporters know intuitively that it’s wrong to give up sources, even sources that disgust us and tell us things we refuse to repeat. Whisper something to us on the q.t., and you saunter off with our scruples in your hip pocket.

U.S. attorney Patrick Fitzgerald is a hero in Chicago for cracking open what John Kass has called the “bipartisan combine” of Democrats and Republicans that runs Illinois, but he’s a villain in Washington, D.C. He’s the special prosecutor assigned to find out which Bush administration hatchet man betrayed CIA operative Valerie Plame, and his approach has been to lean on the journalists who might know.

Fitzgerald has subpoenaed Time’s Matthew Cooper, the Washington Post’s Walter Pincus, NBC’s Tim Russert, and the New York Times’s Judith Miller to appear before the Plame grand jury. Russert compromised, agreeing to be interviewed by Fitzgerald himself, and by NBC’s account betrayed no confidences. The Post and Times said they’d try to quash their reporters’ subpoenas. They’d better hope they have better luck than Cooper. Federal judge Thomas Hogan ruled that neither the First Amendment nor common law gave Cooper the right not to answer a grand jury’s questions and held him in contempt for refusing to. Unless his appeal succeeds, he’s facing jail.

The journalist who revealed last July that Plame was an undercover CIA officer is syndicated columnist Robert Novak. He acknowledged talking to two “senior administration officials.” Plame’s husband, Joseph Wilson, accused the Bush administration of getting back at him through his wife for his essay early last July in the New York Times that accused the government of distorting intelligence to hype its claim that there were weapons of mass destruction in Iraq. Presumably Novak wasn’t the only journalist those officials communicated with. The Washington Post reported last year that there were at least six.

Some journalists have wondered why Fitzgerald is going after secondary targets, giving Novak, a conservative friendly to the White House, a pass. But we don’t know that Novak hasn’t been subpoenaed too. And it might be that Fitzgerald thinks the best way to get Novak, a tough guy, to break is to make him responsible for the martyrdom of other journalists.

As Slate’s Jack Shafer explained in his August 10 Press Box column, what Novak did isn’t illegal–the Intelligence Identities Protection Act of 1982 protects his right to out Plame. The crime is when someone in government passes along that kind of information to a reporter. The maximum punishment is ten years in prison and a $50,000 fine.

Shafer noted that “most prosecutors observe a ‘qualified privilege’ for journalists and don’t compel them to testify until they’ve exhausted every possible alternative route. Some prosecutors don’t subpoena journalists at all.” But that’s their choice, and it wasn’t Fitzgerald’s. Shafer called Fitzgerald’s “Javertian pursuit” of Cooper, Pincus, and Novak–Miller hadn’t been subpoenaed yet–“clearly unjust…bullying, pure and simple.” He said Fitzgerald was misusing the Intelligence Identities Protection Act to go after journalists even though “it was meant to protect journalists.”

His logic is hard to follow. The act protects journalists by allowing someone like Novak to publish information given him illegally. It shields him from prior restraint. It shields him from prosecution. But it doesn’t shield him from the grand jury process. To give Fitzgerald the benefit of the doubt, he isn’t going after journalists–he’s trying to go through them to get to the lawbreakers.

Journalists understand intuitively that what Fitzgerald and Hogan have done to Matthew Cooper is bad for journalism and the people’s right to know. But rarely can the counterintuitive argument be made so easily. Lawbreakers are afoot–Bush officials who abused their office to punish a dissenter. These lawbreakers attempted to make confederates of certain journalists, counting on, if not their cooperation, their silence. They got it.

When Miller was subpoenaed Arthur Sulzberger Jr., publisher of the New York Times, issued a statement. “Journalists should not have to face the prospect of imprisonment for doing nothing more than aggressively seeking to report on the government’s actions,” he said. “Such subpoenas make it less likely that sources will be willing to talk candidly with reporters and ultimately it is the public that suffers.”

What’s aggressive about being leaked to? If aggressive journalism figured in this story, we’d know who leaked to Novak because other reporters would have found out. Making a point of its own passivity, the New York Times article reporting Sulzberger’s comments went on to note that “the Times has not published any articles saying it received information about Ms. Plame’s identity.” The implication is that Fitzgerald was on a fishing expedition, or was responding to what a Times editorial called a “hot tip.” But the Times should stop being coy. Either it got the information or it didn’t, or reporters like Miller who would know won’t say. Tell readers which it is. Wilson’s essay in the Times is what made him a target, but it’s not Wilson the Times is trying to protect. If anyone, it’s the government officials on a vendetta against him. Maybe if Wilson had leaked his essay to the Times instead of publishing it under his own name, the Times would feel more of a sense of obligation.

The Times editorial conceded that there were “unusual circumstances” at play–“an allegation of an illegal leak by a Bush administration official to punish a whistle-blower.” Nonetheless, the “underlying principle” remained the same–“democracy’s need for a free press and the free press’s need to operate with a minimum of government interference, and to protect confidential sources.” Journalists understand that unless everyone can trust them with confidential information, no one can.

But people skeptical of journalistic piety might conclude that the privilege of being courted by the president’s scum is so irresistible that reporters will go to jail to protect it. That’s counterintuition for you.

Be Careful What You Ask For

Surge O’Malley was the Daily Bugle’s famous columnist. When he gave Barack Obama what for, he shattered the longest positive-media streak enjoyed by an Illinois politician since Abraham Lincoln went six years without being slammed back in the 1970s.

Obama had announced that he had no intention of debating Alan Keyes six times, even though two months earlier he’d challenged Jack Ryan to six debates. The hypocrisy made veteran pundits reel, but no one laid into him like O’Malley. “I guess we ought to be spelling that name with a ‘Bah,'” he thundered. “As in ‘Bah-rack O’humbug!’ Or with a ‘Baa,’ as in ‘Baa Baa-Rack Sheep.’ No, make that ‘Baa Baa-Rack O-lamb-a!’ I guess this is one rack of lamb that doesn’t like to be grilled.”

Obama caved. He agreed to debate Keyes nine times across the length and breadth of Illinois. Just to be totally fair, he even agreed to debate Keyes nine more times in Keyes’s home state of Maryland.

Fletcher, the Bugle’s fearsome city editor, came by Surge O’Malley’s desk.

“You idiot,” he said. “Obama has as much reason to debate Keyes as George Ryan had to debate Mark Fairchild.”

O’Malley pursed his lips and thought that over, praying Fletcher wouldn’t guess he had no idea who Mark Fairchild was.

Somehow Fletcher could tell.

“He’s the LaRouchie who wound up as the Democratic nominee for lieutenant governor back in ’86. Ryan was the Republican nominee. Ryan ignored him. Nobody accused Ryan of ducking a debate.”

O’Malley dimly remembered. “But Fairchild wasn’t a legitimate candidate,” he protested.

“He lived in Illinois. He won a primary,” said Fletcher. “People actually voted for him.”

“But Keyes is a man of ideas,” said O’Malley.

“You think the LaRouchies don’t have ideas?”

“But Keyes has serious ideas.”

“If you say so.”

At any rate, what was done was done. So Fletcher sadistically told O’Malley he was assigning him to the seventh debate, the one in Mattoon.

“You’ll like Mattoon,” said Fletcher. “Everyone likes Mattoon. Get there a day early. Do a mood piece and then the event. Give me 5,000 words, because this is Lincoln-Douglas all over again. Plus a think piece for Sunday.”

Fletcher had intended to cover the first debate, when the tension between Keyes and Obama would be fresh and exciting. Or maybe the last one, back in Chicago. His canny reporter’s intuition told him that long before the seventh debate rolled around the public would have stopped paying attention.

“It never occurred to you, did it,” said Fletcher, “that when the press demands a ridiculous number of debates it assumes a responsibility to pretend it’s interested in every one of them.”

“That’s why we got the AP,” O’Malley whimpered.

The Point Is?

Hot Type founder Marshall Rosenthal spotted a peculiarity in the August 13 Sun-Times. Instead of the usual Neil Steinberg column on page 22, there was only a head shot and the intriguing announcement, “Neil Steinberg is on vacation!”

“Have you ever seen an exclamation point so employed?” Rosenthal e-mailed me. “I haven’t. Could be someone is happy Steinberg is taking a deserved break, or just glad he’s not sullying the paper today. Who knows?”

Either theory seemed as likely as the other. One thing was certain: the exclamation point brought a crackle of excitement to the page. Inspired, Rosenthal thumbed through the papers looking for other opportunities for them to set our pulses racing.

John Kass is taking the day off!


Metro Briefs–from staff reports!

Cathleen Falsani–Religion!

Art accompanying story in printed newspaper (not available in this archive): illustration/William L. Brown.