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Plame and Unjust Blame

By Randall D. Eliason
Wednesday, March 9, 2005; Page A21

In recent months several reporters have found themselves caught in the crossfire of a federal criminal investigation. A special prosecutor is exploring whether the disclosure of Valerie Plame's CIA employment violated a law that protects the identity of undercover intelligence agents. Plame's CIA connection allegedly was leaked by Bush administration officials as part of an effort to discredit her husband, Joseph Wilson. Although a number of journalists apparently received the leak, only one, Robert D. Novak, wrote a column "outing" Plame.

Two journalists -- Judith Miller of the New York Times and Matthew Cooper of Time magazine -- have been subpoenaed by a grand jury but have refused to testify, citing their duty to honor promises of confidentiality to their sources. As a result, they have been held in contempt and threatened with jail. Their contempt citations were recently upheld by a unanimous court of appeals.


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These developments have resulted in a torrent of criticism in the media, with editorial pages and commentators charging that the prosecutor is misguided and overzealous, a modern-day Inspector Javert.

Au contraire. Unlike the typical situation in which journalists seek to protect their sources, this case does not involve leaked information about some other misconduct. Here the leak itself is the alleged crime. It's hard to imagine how such a case could be investigated without talking to the reporters.

If someone disclosed classified information to a reporter, there are only two likely witnesses: the parties to that conversation. Even if the identity of the leaker is known, he or she almost certainly will assert a valid Fifth Amendment privilege not to testify. That leaves the reporter as the sole available witness to a possible federal crime. If the reporter can't be questioned, the alleged criminal in any such case will, in effect, be immune from prosecution, no matter how grave the potential harm.

Given these facts, the prosecutor has two options: subpoena the reporters to testify, or fold up his tents and go home. The Supreme Court has said quite clearly that a reporter has no privilege to refuse to testify in such circumstances. Congress has not enacted a reporters' privilege law. Justice Department guidelines provide that reporters may be subpoenaed under the narrow circumstances present here. So what should the prosecutor do?

This isn't even a close call. When there is critical, available, non-privileged evidence of a potential federal crime, the prosecutor's duty is to pursue that evidence. Indeed, if, under the circumstances, the prosecutor did anything less, a different chorus of critics no doubt would accuse him of shirking his responsibilities or trying to cover up for the White House.

Some question why the prosecutor is going after these two reporters and not Novak. But because of grand jury secrecy, we don't know exactly what has happened with Novak, because he's not saying. Novak may be cooperating; he may have taken the Fifth, or the prosecutor may be waiting until near the end of the investigation before seeking to question him. Regardless, it is safe to assume that Novak is not being ignored.

Others have charged that the investigation is "Orwellian" because Judith Miller is being questioned even though she never wrote a story. This also reflects a misunderstanding of the nature of the investigation. These reporters are being questioned not about anything they wrote or didn't write but about who was doing the leaking. The leak is the potential crime, and any reporters who received the leak have critical evidence, whether or not they wrote about it.

Finally, critics complain that reporters are being threatened with jail for simply "doing their jobs." This has a nice rhetorical ring to it, but it isn't true. Nobody's job description includes disobeying lawful court orders. The reporters have been found in contempt not for any news-gathering or reporting but for refusing to testify without a recognized legal excuse.

So, please -- give the prosecutor a break. He really is only doing his job.

The author is former chief of the Public Corruption/Government Fraud Section of the D.C. U.S. attorney's office and teaches courses on white-collar crime at American and George Washington universities. He will take questions today at 2 p.m. on www.washingtonpost.com.


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