The most intriguing revelation of Special Prosecutor Patrick J. Fitzgerald's news conference last week was his assertion that he would have presented his indictment of I. Lewis "Scooter" Libby a year ago if not for the intransigence of reporters who refused to testify before the grand jury. He said that without that delay, "we would have been here in October 2004 instead of October 2005."
Had that been the case, John Kerry probably would be President of the United States today.
Surely a sufficient number of swing voters in the very tight race would have been outraged to learn weeks before the 2004 election that, according to this indictment, Vice President Dick Cheney's chief of staff--a key member of the White House team that made the fraudulent case for invading Iraq--"did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice."
It is deeply disturbing that the public was left uninformed about such key information because of the posturing of news organizations that claimed to be upholding the free-press guarantee of the First Amendment. As Fitzgerald rightly pointed out, "I was not looking for a First Amendment showdown." Nor was one necessary, if reporters had fulfilled their obligation to inform the public, as well as the grand jury, as to what they knew of a possible crime by a government official.
How odd for the press to invoke the Constitution's prohibition against governmental abridgement of the rights of a free press in a situation in which a top White House official exploited reporters in an attempt to abridge an individual's right to free speech.
The spirit of a law is more important than the letter, but the reporters who fought to avoid testifying to the grand jury in the investigation that snared Libby upheld neither. They were acting as knowing accomplices to a top White House official's attempt to discredit a whistle-blower.
As the indictment makes clear, this was a case in which the reporters had direct knowledge relevant to the commission of a crime perpetrated by at least one top Administration aide. "They're the eyewitness to the crime," Fitzgerald said.
In particular, the indictment makes a farce of the theatrics of New York Times reporter Judith Miller. She knew early on that Libby was using the media to punish former US Ambassador Joseph C. Wilson IV for exposing President Bush's false claim that Iraq sought nuclear material from the African nation of Niger. According to the indictment, at a June 23, 2003, meeting with Miller, "Libby was critical of the CIA and disparaged what he termed 'selective leaking' by the CIA concerning intelligence matters. In discussing the CIA's handling of Wilson's trip to Niger, Libby informed her that Wilson's wife might work at a bureau of the CIA."
That paragraph from the indictment is key to this entire sordid affair. Wilson at that time was beginning to talk to reporters about one of the more egregious distortions in the President's State of the Union speech justifying the Iraq invasion--the sixteen-word fabrication about Saddam Hussein's nuclear intentions.
Libby, who had been a source for Miller's erroneous hyping in the New York Times of Iraq's WMD threat, was now attempting to shift blame to the Central Intelligence Agency by impugning Wilson's motives for stepping forth as a critic of the war.
Instead of confronting Libby for trying to mislead reporters, Miller did nothing to expose his efforts to smear a former ambassador for raising such questions. At the very least, she should have written a story stating that a White House official was planting information to disparage a critic of its war policy. Miller couldn't do that because she had acceded to Libby's demand that his White House connection be concealed in any articles she wrote, by identifying him as a "former [Capitol] Hill staffer."
This case was never about protecting government sources who risk their careers by telling the truth, but rather about punishing those like Wilson who do. That Miller cared far more about protecting someone who abused his power as the Vice President's chief of staff than about protecting the right of Wilson to speak truth to power says volumes about her priorities.
That the New York Times again editorialized last week in defense of its knee-jerk support of Miller, even after knowing she deceived her editors, is a startling indication that even some of our most respected media leaders still are missing the point.
The First Amendment protection is not a license for mischief on the part of journalists eager to do the government's bidding. To the contrary, it was conceived by the founders to prevent government from subverting the free press in an effort to misinform the public. Unfortunately, that is precisely what occurred here.