Plame Flame On The Shield

CBS News legal consultant Andrew Cohen reacts to news that journalists will be called to testify in the Valerie Plame leak trial.


It is not surprising that the only people who seem to care that journalists may be called to testify at the perjury and obstruction trial of former White House staffer I. Lewis "Scooter" Libby are journalists themselves.

To the rest of the nation, the idea that reporters should be immune from certain civic responsibilities (like being a witness in a criminal trial) simply plays into the burgeoning (and unfortunate) sense that journalists want special treatment when they deserve none.

That's just a fact that reporters have to live with in this age of intense cynicism toward the media. Another sad fact is that journalists who refuse to divulge their sources on principle often get in more trouble (read: jail for civil contempt) than any of the parties in the cases in which their testimony is sought.

In the end, former New York Times reporter Judy Miller may end up spending more time in jail (she was incarcerated for 12 weeks) than Libby might serve even if he is convicted. And just ask the reporters involved in the steroids case on the West Coast what they think of federal shield rules.

No, I don't think the world will end if all the reporters who have been listed as witnesses in the case of United States v. Libby are forced take the stand in federal court in Washington, D.C. over the next few weeks and months. Reporters, for the most part, still will be able to get confidential information from sources who in turn still will be able to rely upon a journalist's Woodward-esque word that the arrangement will never be made public.

The Libby precedent likely will affect only a small percentage of the confidential exchanges that happen every day in this country. Too much for journalists, I know. But not the disaster some predict.

By the same token, though, the world has not ended by virtue of the fact that many states in the nation — 30 and counting — have reporter "shield" laws that help protect journalists by forcing prosecutors (and defense attorneys, for that matter) to try as hard as they can to get information and evidence from sources other than journalists.

The lawyers who come to court to say that they must subpoena reporters often are doing so because they are too lazy or rushed or stubborn to find a workaround solution to whatever evidentiary problem they face. And these lawyers know, too, that judges across the country have become increasingly willing to side with government over journalists.

In part to stem this tide, a powerful federal shield law last year made it to the Senate for consideration before being killed by Republican leaders there. Why? Because the Justice Department, which is leading the charge against Libby, lobbied hard against the measure.

Perhaps with a Democratic Congress starting up in a few weeks the outcome will be different. But I wouldn't hold my breath. We need a federal shield law in this country to avoid the perverse twist on justice we could see in the Libby case.

But since when can we count on Congress to give us what we truly need when we need it?
  • Andrew Cohen

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