Watchdog Blog

Dan Froomkin: Fitzgerald on Forcing Reporters to Testify

Posted at 3:24 pm, March 7th, 2007
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Special counsel Patrick J. Fitzgerald has been widely reviled by a fair number of First-Amendment activists for dragging reporters into court to make his case against former vice presidential chief of staff Scooter Libby.

Fitzgerald’s approach has been described by some of his critics as encouraging a full-bore government assault on reporters and their ability to guarantee confidentiality to their sources.

Until now, Fitzgerald has remained silent on this issue. But it’s worth noting that in his brief question-and-answer session after winning a guilty verdict in the Libby trial yesterday, the career prosecutor made it very clear that he considers the Libby investigation unique – and hardly a precedent to allow government investigators to go after journalists who protect whistleblowers.

CNN has a partial transcript of his public statement.

QUESTION: Can you say in what ways do you believe the investigation — not the trial but the investigation — changed the nature of how reporters deal with official sources and their promises of — their pledges of confidentiality?

FITZGERALD: I will say this: It’s probably — you know, reporters can tell us how it’s affecting things. I think what people ought to understand is what was unique about this case.

What was unique about this case that’s different than many other cases is that the reporters involved here were not just people who got whistleblowing tips. We do not think that what Mr. Libby was telling reporters was whistleblowing.

Secondly, they were not reporting something that would not otherwise be heard. They actually were potential eyewitnesses to a crime. If someone is passing out classified information to a reporter, that’s different.

And I think what people have to understand here is if the mission that you’re given is to find out whether the law has been broken, and you’ve been told that the story that the person gave to the FBI is false, that the information came from officials and not reporters, but their claim is that they told reporters the information and they made sure to tell the reporters that they knew it came from other reporters and they didn’t know if it’s true, you could not ever bring a case without talking to the reporters. That would be irresponsible, because if the reporters came in and said, “That’s actually what he said,” you would be charging someone who was innocent.

And so, by placing the information behind reporters, there was no choice but to find out from the reporters what that information was. In a situation where the person had already disclosed the confidences and waived the confidences, we think that was the appropriate way to proceed.

We are not saying that we shouldn’t be very careful, that we shouldn’t have attorney-general guidelines, that we shouldn’t follow attorney-general guidelines, that resorting to questioning reporters should be a last resort in the very unusual case.

But I think what we have — I think what people should realize is that we never take that off the table. And there are times when government informants — we have confidential relationships that we have to breach, and that’s something that we have to recognize. We can’t just say that this will never, ever happen, that we’ll never, ever ask a reporter about a source. And this was a case where it was appropriate.….

QUESTION: (inaudible) this case and your investigation doesn’t necessarily become a paradigm for future (inaudible) investigations? Or do you think it will encourage others, given the success you’ve had here?

FITZGERALD: I think people can look — should look to any case for, sort of, you know, for developments. But I think there’s a danger in reading too much into it. I think people ought to look at the law, look at the facts, and then I think you have to be careful in applying them to other cases.

So if it’s made clear what the circumstances were in this case, I think people will look to this case. But we’re not — I think people ought to look at it as what it is: a particular set of facts where reporters were eyewitnesses to potential crime. And reporters, if they did not testify, we could never get to the bottom of the questions here.

And that’s what was key. If we did not question reporters, we could not answer the question of whether or not a lie was told. And in fact, talking to reporters proved the lie. And that’s a very unusual circumstance, so I would just caution people to view it in context.



2 Responses to “Fitzgerald on Forcing Reporters to Testify”

  1. Phil Sheehan says:

    It’s a long shot, I know, but might there not be some sort of compromise ground for journalists and their sources? What I have in mind is a bargain such as this: “If what you tell me is true and legitimate, I will protect you. If what you tell me is false, tendentious, or merely self-serving blather, the deal is off.” Even here, gray areas abound, but at least it could lead to developing a viable code both for journalists and for leakers.

  2. Nellcote says:

    While I’m sympathetic to the idea of a shield law, it shouldn’t be used to cover up for a reporter’s actual involvement in a crime ie the outing of a CIA agent.

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