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Howard Kurtz Media Notes

On Jailing Reporters

By Howard Kurtz
Washington Post Staff Writer
Wednesday, December 15, 2004; 10:28 AM

Let's face it: The Valerie Plame investigation is a lousy test case for the press.

Even First Amendment champions are hard pressed to work up much enthusiasm for protecting administration leakers who outed a CIA operative to damage her husband, White House critic Joe Wilson.

_____More Media Notes_____
Web of Deception (washingtonpost.com, Dec 14, 2004)
The Kerik Conundrum (washingtonpost.com, Dec 13, 2004)
Pulling the Strings (washingtonpost.com, Dec 10, 2004)
Snow Job (washingtonpost.com, Dec 9, 2004)
A Beltway Solution (washingtonpost.com, Dec 8, 2004)
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Matt Cooper, who is facing jail along with Judith Miller, makes the point that journalists don't have the luxury of picking and choosing which sources to protect based on the purity of their motivation. In fact, he says he was trying to put a spotlight on the anti-Plame leakers by writing his Time piece (which appeared in July 2003, three days after the Novak column had already outed Plame). But these nuances are getting lost in the arguing. Many people think: reporters protecting revenge-minded White House officials--why should they be able to abet a crime?

A much better test case would be one in which the journalist is protecting a source who blew the whistle on some terrible practice. As it happens, we have such a case, involving the San Francisco Chronicle. (Bill Safire draws this connection, which I'll come back to in a moment.)

It's the Chronicle that blew open the steroids scandal by reporting that Jason Giambi had admitted using the stuff (after denying it publicly) and Barry Bonds acknowledged using some sort of cream he got from an indicted steroids peddler. This has shaken the game of baseball to its foundation and raised questions about whether Bonds's 73-homer record should be allowed to stand (we already know that Mark McGwire used andro, a substance now banned by baseball but not when he hit those 70 homers in '98).

How does the Chronicle know this? By obtaining secret grand jury testimony from a confidential source. It is a crime to leak grand jury secrets, but not for reporters to receive it. A prosecutor has already called for a leak investigation, meaning that Chronicle reporters could soon be facing the same break-your-pledge-or-go-to-jail choice.

Would we be better off if the Chronicle had not revealed that some of baseball's biggest stars are cheaters?

Chronicle Editor Phil Bronstein describes his reasoning:

"Readers flooded us with response to these latest pieces. Their emotions ranged from sadness to frustration to anger to gratitude. One theme might be summed up as: Who do you think you are?. . . .

"Here is how we decided to publish secret testimony: We don't believe that it's our responsibility to enforce federal secrecy provisions surrounding grand jury proceedings.

"We do believe that it is our responsibility to provide as much information as possible to help people make decisions on issues of importance to them, often referred to as 'the public's right to know.' Intimately tied up with that right is our view of the First Amendment, which we believe allows us to publish stories we feel are of interest to the public. That's the same right that allows you to express yourself freely; it's as important to you as it is to the press."

Reporters way over-use anonymous sources, but as the Chronicle story shows (along with a long line of stories dating back to Watergate), they can be crucial. Conservatives, many of whom are not big fans of the press, are using the Plame case to argue against "special privileges" for journalists. That's where Safire comes in. The man who once inveighed against media types as "nattering nabobs of negativism" (in a speech for Spiro Agnew) now sees an out-of-control jihad against journalists, what he calls "the new vogue of leak-plumbing that has seized the federal judiciary. Inspired by the sentences for contempt imposed in D.C. on Judith Miller of The Times and Matthew Cooper of Time, and on Jim Taricani, the TV reporter in Rhode Island, a judge in San Francisco is urging the Justice Department to conduct an investigation of who brought the evidence of steroid abuse into public view one year after the explosive testimony was taken. . . .

"Government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this 'privilege' to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust. Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist (as more than 30 states now do through 'shield' laws).

"Here's the rub: no privilege is absolute. Constitutional rights sometimes conflict. Extreme example: Everybody - spouses, doctors, lawyers, clergy, journalists, bartenders - must break any confidence to prevent a murder. We are expected to use common sense in balancing our right to remain silent with our obligation to bear witness.

"That good sense is being swept away today by leak-happy prosecutors and activist judges. This trend toward the jailing of journalists for protecting the free flow of news is an abuse-of-power abomination."

Another Kerik woman, just for the heck of it:

"First there was 'The Lost Son.' Now comes the lost wife," says Newsday. "Investigators conducting a background check of Bernard Kerik last week as part of his confirmation hearing uncovered that the then-Secretary of Homeland Security nominee was married to a woman he has apparently kept a secret for the past 20 years. "Friends of his said they were not aware of the woman, and Kerik did not acknowledge the marriage in his best-selling autobiography, 'The Lost Son: A Life in Pursuit of Justice.'"

And pursuit of a few other things as well, I might add.

"Instead, he wrote about only two marriages, one to a New Jersey woman named Jacqueline, whom he married in 1983 when he was 28, and one to his current wife, Hala, whom he married in 1998. "But Kerik, who withdrew his name for consideration for the nation's top security post on Friday, was also married to the former Linda Hales in North Carolina."

Did Kerik forget about that nanny? Consider what the New York Post found:

"Former NYPD top cop Bernard Kerik didn't file any paperwork or pay any taxes for his family's Mexican nanny until shortly before he was tapped to be President Bush's homeland-security chief, The Post has learned.

"A New Jersey business-registration form, which he had to file as her employer, was issued to Kerik on Nov. 17 -- just over two weeks before Bush nominated him on Dec. 3, according to documents Kerik supplied to The Post. The form lists its effective date as Nov. 2."

The New York Times is still kicking the Kerik story around:

"Despite hours of confrontational interviews by the White House counsel, Alberto R. Gonzales, the Bush administration failed to get a full picture of the legal and ethical problems of Bernard B. Kerik, its nominee for homeland security secretary, a government official said on Tuesday.

"In addition, the White House did not consult with the one person in the West Wing who knew the most about Mr. Kerik's background, Frances Townsend, because Ms. Townsend, President Bush's adviser on homeland security and a former federal prosecutor in New York, was under consideration for the position herself, said the official, who would speak only on condition of anonymity because of the sensitivity of the issue.

"Those problems, law enforcement officials and Republicans said, were just two of the factors that led to the collapse of the Kerik nomination and surprised a White House focused on changing more than half the cabinet.

"The story of Mr. Kerik's nomination is the story of how a normally careful White House faltered because of Mr. Bush's personal enthusiasm for Mr. Kerik, a desire by the White House to quickly fill a critical national security job and an apparent lack of candor from Mr. Kerik himself."

An "apparent lack of candor"? Why the State Department terminology? The guy was not straight with the White House, period.

National Review Editor Rich Lowry reminds us that the issue that helped sink Zoe, Kimba, Linda and Bernie involves more than just nominees:

"The withdrawal of Bernard Kerik's nomination for secretary of Homeland Security has revived the "nanny issue" from the 1990s. Like two failed Clinton nominees for attorney general, Kerik employed an illegal immigrant as a nanny and failed to pay Social Security taxes on her labor. Whether the nanny was really the main problem with Kerik's troubled nomination is open to debate -- media vultures are still picking away at his record -- but the brouhaha sheds light on the looking-glass world of American immigration enforcement.

"The political elite, which otherwise maintains an unshakable insouciance about the widespread disregard for the country's immigration laws, seems to think these laws should only be vigorously enforced when it comes to people nominated for Cabinet posts. If you might one day be considered for one of the nation's 15 Cabinet-level agencies, you must act as if immigration laws mean something. This double standard is, of course, absurd. We would never insist that only Cabinet nominees pay income taxes or abide by drug or labor laws.

"But politicos seem to realize that the largely upper-middle-class indulgence of hiring illegal household help, when engaged in by people nominated to enforce our laws, risks igniting a populist revolt best avoided. Thus Kerik -- nominated to head a department with responsibility for immigration enforcement, for goodness' sake! -- had to go. And he really had no excuse. Verifying an employee's legality is usually only a matter of asking for documentation or calling an 800 number to verify a Social Security number or immigration-document number.

"As the ton of bricks descends on Kerik, however, it is worth noting the stew of hypocrisy surrounding this issue. Last year, the same congressional Democrats now tsk-tsking the loudest about his fall initially opposed expanding a pilot program available in several states to allow employers to get an instant check from the federal government on the legal status of prospective employees. Democrats cited, among other things, concerns that it would discriminate against Hispanics. Republicans suspected the Democrats just didn't want to make enforcement any easier. The expansion eventually passed, and the system is now available nationwide."

Maybe too many journalists have illegal nannies for a serious excavation of the issue.

On the war front, turns out there was a December surprise:

"The Bush administration plans to ask for between $80 billion and $100 billion to fund military operations in Iraq and Afghanistan next year, rather than the $70 billion to $75 billion the White House privately told members of Congress before the election, according to Pentagon and White House officials," says the

Boston Globe.

All those stories about the brewing battle for the next high court vacancy may be a tad premature, according to the Wall Street Journal:

"Ailing Chief Justice William Rehnquist indicated he has no immediate plans to leave the Supreme Court, as the court ended its session for the year. . . .

"The announcement appears to counter widespread speculation that the chief justice has a very aggressive form of thyroid cancer and might not return to the bench at all. The court earlier announced that Mr. Rehnquist had agreed to swear in President Bush for his second term on Jan. 20.

"Of course, any of Chief Justice Rehnquist's plans are subject to his health and ability to maintain the strength to function as chief justice of the court."

In case you were wondering, Kerry's wipeout in the south was worse than you thought, says Ron Brownstein in the Los Angeles Times:

"The generation-long political retreat of Democrats across the South is disintegrating into a rout.

"President Bush dominated the South so completely in last month's presidential election that he carried nearly 85% of all the counties across the region -- and more than 90% of counties where whites are a majority of the population, a Times analysis of the election results and census data show.

"His overwhelming performance left Sen. John F. Kerry clinging to a few scattered islands of support in a region that until the 1960s provided the foundation of the Democratic coalition in presidential politics. Kerry won fewer Southern counties than any Democratic nominee since the Depression except Walter F. Mondale in 1984 and George S. McGovern in 1972, according to data assembled by The Times and Polidata, a firm that specializes in political statistics."

Dems have no need to worry about Dean, says Slate's Chris Suellentrop:

"If establishment Democrats still fear Howard Dean, they ought to elect him chairman of the Democratic National Committee. Not because becoming DNC chair would make Dean, as a member of the establishment, moderate his criticisms of Washington Democrats -- though that's certainly true -- but because Dean would exert far less influence over the future of the Democratic Party as its titular head than he would as a 2008 presidential candidate.

"Ed Rendell was so frustrated with his job as DNC chairman during Al Gore's 2000 presidential campaign that he complained to the New Republic, 'I basically take orders from 27-year-old guys in Nashville who have virtually no real-life experience. All they've done is been political consultants living in an artificial world, and basically their opinion counts more than mine.' That's the cry of the DNC chair, Washington's political eunuch.

"For those looking to move the Democrats to the left or the right, it doesn't much matter who becomes DNC chair in February. The truth is that presidential candidates, not party chairmen, define the policy agendas of political parties. Steve Rosenthal, the CEO of the Democratic 527 group America Coming Together, told me the idea that the DNC chair can define the Democratic agenda was 'a crock.' In 2003 and 2004, Dean exerted more control over John Kerry's platform than Terry McAuliffe did. Likewise, the Democratic Leadership Council led a successful reinvention of the Democratic Party in the 1980s and early '90s without ever controlling the DNC apparatus."

But Progressive Editor Matthew Rothschild, writing before the party's weekend gathering in Florida, says it does matter whether Dean gets the DNC nod:

"It's a battle between the DLC on the one side and Howard Dean on the other, with several candidates in between.

"The big money guys in the party have their knives out for Dr. Dean. They don't like his liberalism, and they don't like his outspokenness.

"They want an obsequious leader who can suck up to big donors and blur the distinctions between the two parties. . . .

"If the Democrats suckerpunch Dean in Orlando, they will alienate their activist base and bruise their chances of victory in 2006 and 2008."

Wonkette has this world exclusive:

"Only in Washington are the real estate listings polluted by ideology:

"FREE MARKET APARTMENT. Dupont. $444/mo. + utils., shared bunkbed. Live w/3 libertarian & conservative males.

"What, exactly, makes this apartment more part of the free market than the others, we don't know, though we suspect it has something to do with who buys the beer each week."

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