Wednesday, December 01, 2004
It turns out, though, that the U.S. attorney investigating the case, Patrick Fitzgerald, is actually doing a thorough job of running his witnesses to ground. He has been trying to break confidentiality agreements between journalists and their sources, and pioneered the use of "waivers" that purport to release journalists from their commitments to keep sources confidential. The media are crying foul, especially now that the use of "Plame waivers" is spreading to other cases. Reporters fighting orders to testify argue that the waivers are coerced -- government employees are told that they will lose their jobs if they do not sign them -- and that testifying under a waiver will destroy their ability to secure leaks in the future. In this, they are almost certainly correct.
So the liberal wing of the mainstream media campaigned for a criminal investigation of an alleged crime, the actus reus of which was the publication of a fact (Plame's status as an undercover operative). The Justice Department responded to that campaign with a thorough and independant investigation. The President called for all government employees to cooperate with the investigation. The investigating U.S. attorney asked all the reporters who might know who leaked the fact that would be the element of the crime, but they refused to testify, citing their promises to sources to keep quiet. Mr. Fitzgerald then secured written waivers of those promises, and now the reporters are complaining that those waivers should be disregarded because they were "coerced," citing the President's demand that government employees cooperate with the investigation as evidence of that coercion!
The bad part about all of this is that "Plame waivers" really do pose a problem for the press, and therefore the citizenry, under our system. If we relied only on the official statements of politicians and publications of government agencies to understand our government, we wouldn't know a damn thing. We need reporters to get low level officials and faceless bureaucrats to talk, and they won't if they are under constant threat of exposure. The routine use of Plame waivers would impose that constant threat.
The problem with the Plame case, of course, is that the essence of the crime to be investigated was the publication of a leaked fact. This makes it quite different from most criminal investigations arising from media stories, where the publication of a leaked fact reveals an underlying offense. The astonishing thing is that the press, in calling for an investigation of the Plame leak, did not foresee that prosecutors would have to come after reporters to establish the elements of the crime. The press did not see the trap that it was setting for itself.
UPDATE: Eugene Volokh has an op-ed piece in today's New York Times that discusses this issue in detail. He makes a couple of interesting observations. First, the idea that the mainstream media should have special privileges to conceal sources that non-traditional publishers do not have is troubling and probably unacceptable under the prevailing case law. So bloggers get whatever privilege reporters get. Second, making this privilege available so broadly makes it costly. More leaks would come via privileged communications, frustrating prosecutors more often. Third -- and here's the kicker -- there should be no such privilege in cases where the leak itself is the sine qua non of the crime being investigated, as in the Plame case. Volokh says, and I agree, that some leaks would be chilled, but they are probably the leaks that are most damaging to third parties (such as Valerie Plame). (Of course, the courts should protect journalists who publish technically illegal leaks that expose a substantive underlying story of public interest, so that prosecutors do not retaliate via cooked-up arguments that the substantive information was confidential to the government under some statute.)
I believe that Volokh (and you) are right. A "journalist privilege," if there is to be one, should be narrowly focused much like other generally recognized privileges (e.g. attorney-client) in order to ensure that the genuine societal goal to be advanced by the privilege is preserved, while at the same time, preventing its abuse. The narrow construction is also favored because such communications often contain evidence that is extremely important to the system of civil and criminal justice.
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