Reporters On Reporters On Libby

Aside from its appeal at face value, Friday's indictment of I. Lewis "Scooter" Libby, retains the attention of the media at least to some degree because of the implications it might have on reporters themselves. Saturday's New York Times broached the subject in an article that hinged upon criticism of Special Prosecutor Patrick Fitzgerald's "pitting three prominent journalists against their former source, a strategy that experts in law and journalism say has rarely been used or tested." The piece prompted a slew of reaction from the blogosphere and beyond about the fallout for reporters in the face of Libby's impending public trial. From the article:

It is all but unheard of for reporters to turn publicly on their sources or for prosecutors to succeed in conscripting members of a profession that prizes its independence.

Yet Mr. Libby's trial on perjury and obstruction charges will largely turn on whether jurors are more inclined to believe a government official who played a critical role in devising the justifications for the Iraq war or members of a profession whose own credibility has been under assault.

Judith Miller, Tim Russert, Matt Cooper and others will likely play key roles, but the question is, given the current attitudes toward the press, will they be judged credible? On the other hand, Libby was part of the inside group that sold the war on Iraq based on faulty evidence or lies.

Now that an indictment has reached the highest level of the White House for the first time since Watergate, journalists face a minefield of potentially explosive questions: Are they enjoying a bit too much the spectacle of Libby, Vice President Cheney's chief of staff, having to resign over the charges of perjury and obstruction of justice? What happened to the normal journalistic skepticism toward a single-minded special prosecutor, as was on display when Ken Starr was pursuing Bill Clinton?

The hostility directed at Patrick Fitzgerald when he was threatening reporters with jail seems to have faded now that his targets are senior aides to President Bush. Perhaps most important, are reporters, commentators, bloggers and partisans using the outing of Valerie Plame as a proxy war for rehashing the decision to invade Iraq? The vitriol directed at New York Times reporter Judith Miller, whether deserved or not, seems motivated as much by her role in touting the administration's erroneous WMD claims as in her decision to be jailed, at least for a time, to protect Libby.

In short, the leak prosecution is shaping up as a test of media fairness and responsibility in a polarizing age when many people on the left and right think the news business is hopelessly biased.

The media lovefest enveloping Fitzgerald is unwarranted. Fitzgerald does come across as admirably apolitical, a rare straight-shooter. But he also took advantage of the tattered fabric that was the reporter's privilege and blasted an enormous hole right through it.

Short of a national shield law -- something that seems unlikely to pass -- the reporter's privilege has now gone from tenuous to nonexistent. Perhaps some good will come out of this: A source will think very, very hard before he uses a reporter's promise of anonymity to engage in criminal behavior.

More likely, though, Fitzgerald's crusade will make it harder for journalists -- and journalism -- to expose the truth.

If Libby actually ends up before a jury and famous journalists are forced to take the stand, America may find itself weighing how to accommodate the sometimes conflicting demands of journalism and justice. What I hope people will conclude is that a federal shield is needed—though Fitzgerald makes a credible case for a very narrowly tailored exception.

…The current rap charges journalists with being "stenographers to power." While there is some truth to both characterizations, neither takes due account of the value served when journalism is practiced at its highest level, when it truly exposes wrongdoing that threatens the functioning of our democracy. Judith Miller, of course, is no Woodward and Bernstein; but then the case for a shield is not based on the assumption that she is. It is based instead in the hope that the value of good reporters more than counters the sins of their less scrupulous brethren—and that a law protecting their ability to better do their job ultimately protects us all.