- The Washington Times - Monday, August 16, 2004

U. S. District Judge Thomas F. Hogan advanced the people’s right to know what their government is doing in directing Time magazine reporter Matthew Cooper and NBC Washington Bureau Chief Tim Russert to disclose to a grand jury their conversations with a specified Bush administration official suspected of violating the Intelligence Agents Protection Act of 1982.

In a Memorandum Opinion filed on July 20, 2004, in In Re: Special Counsel Investigation, Judge Hogan denied the free press clause of the First Amendment endowed the newsmen with a privilege to conceal confidential governmental sources who blew the cover of CIA operative Valerie Plame to discredit her husband, former Ambassador Joseph Wilson. As Supreme Court Justice Potter Stewart lectured, freedom of the press aims to provide organized and informed scrutiny of government. James Madison observed in protesting the odious Sedition Act of 1798 that “the right of freely examining public characters and measures … has ever been justly deemed the only effectual guardian of every other right.”

The compelling watchdog role of the press would be turned on its head if reporters were permitted to conceal direct evidence of a national security crime allegedly committed by a high officer of the executive branch to retaliate against Mr. Wilson for accusing President George W. Bush of “twist[ing]” intelligence related to Iraq’s nuclear program in his 2003 State of the Union address.

Special Counsel Patrick Fitzgerald was selected by the attorney general to investigate the potential illegal disclosure of Ms. Plame’s identity. On July 14, 2003, The Washington Post and other newspapers had published a column authored by Robert Novak in which he reported Ambassador Wilson’s “wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me his wife suggested sending Wilson to Niger [to investigate Iraq’s search to purchase uranium].” Two months after the Novak publication, The Washington Post reported “two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife.”

That perfidious wretchedness endangered the safety of Mrs. Plame and her foreign informants or contacts. It further impaired the ability of the CIA to recruit informants in the counterterrorism war by engendering fear of disclosure and retaliation occasioned by unanticipated political jousting in the United States. Equally sinister was the message sent to would-be detractors of President Bush reminiscent of the hated Sedition Act: criticism will provoke a muscular government counterattack, whereas docility will occasion no troubles.

A grand jury was summoned. Subpoenas were issued to Messrs. Cooper and Russert, while Mr. Novak and Walter Pincus, premier reporter for The Washington Post, stood in Special Counsel Fitzgerald’s subpoena queue. He intended to question each journalist about alleged communications with a specified Bush administration official, a confidential source.

All other investigative approaches had been pursued without result. If the newsmen balk at talking, the crime will remain unsolved. As Judge Hogan found based on an ex parte affidavit submitted by Mr. Fitzgerald: “The information requested from Mr. Cooper and Mr. Russert is very limited, all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt.”

The free press defense to the subpoenas advanced by Messrs. Cooper and Russert was that confidential sources are indispensable to investigative journalism. But the assertion is dubious, and in any event should bow in a narrow category of cases where the sources themselves are government officials implicated in national security crimes.

Supreme Court Justice Byron White amplified in rejecting a constitutional newsman’s privilege to refuse to reveal confidential information to grand juries in Branzburg vs. Hayes (1972): “On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial. … Only where news sources themselves are implicated in crime or possess information relevant to the grand jury’s task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential sources falls into either category. … Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source. … on the theory that it is better to write about crime than to do something about it.”

Thirty-two years under the Branzburg holding confirms Justice White’s skepticism about a chilling effect on confidential sources. They continued to provide torrent of disclosures to the press about major government figures or scandals, including Watergate, Iran-Contra, Anita Hill, and the investigation of President William Jefferson Clinton by Independent Counsel Kenneth Starr. Investigative reporting flourished equally in states with and without newsman’s privilege statutes that go beyond the First Amendment. Prosecutors generally subpoenaed journalists as witnesses only as a last resort, in part because their careers pivot on friendly press coverage.

In sum, there may be cases for recognizing a constitutional newsman’s privilege to protect confidential sources, but the criminal investigation of the Bush administration leak of Valerie Plame’s identity is not such a candidate.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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