The Futility of Chasing Leaks

By Bruce W. Sanford and Bruce D. Brown
Thursday, July 20, 2006

Almost three years to the day after he published his now-infamous "Mission to Niger" column in which he described Valerie Plame as a CIA "operative," Robert D. Novak revealed last week what he had told special prosecutor Patrick Fitzgerald about the sourcing for his article. By supplying corroboration of what has long been suspected -- that Fitzgerald knew almost immediately and on his own who Novak's three sources were -- Novak has further confirmed another truth about leak investigations: They are a huge, dangerous waste of time.

It took three years of numbing legal process, including bruising battles in the federal courts that have left the relationships between journalists and their sources more vulnerable, to get us here. And where exactly are we?

The criminal investigation into who in the government disclosed Plame's identity has essentially rendered the mission to uncover the "Mission to Niger" a mission to nowhere. A reporter was jailed for almost 90 days, but Novak's principal source, whose identity he still protects under the terms of their agreement, has not and will not be indicted under the federal law criminalizing the purposeful disclosure of truly covert agents, because the stringent requirements of that statute could not possibly be met.

But there's more futility -- and fatigue -- to come. The futility will be evident in the acquittal next year of Vice President Cheney's former chief of staff, Lewis "Scooter" Libby, on charges of perjury and obstruction of justice. The acquittal will be yet another symbol of the misuse of prosecutorial time that is the big problem with leak investigations.

Libby is charged with providing false statements to a grand jury when he testified that his contacts about Plame with Judith Miller of the New York Times and Matthew Cooper of Time consisted only of repeating a rumor about her identity that he had heard from NBC's Tim Russert. Russert, however, testified that he never spoke with Libby about Plame. Prosecutors allege that Libby learned who Plame was from Cheney and other government officials. The suggestion is that Libby sought to protect his administration colleagues by throwing investigators off the scent.

To win a perjury case, however, a prosecutor has to prove that a defendant willfully made false statements. Libby's attorneys will argue that his misstatement was an innocent mix-up by a top executive branch official who dealt daily with waves of reporters and a constant crush of domestic and international issues. It will be virtually impossible for the government to prove otherwise -- beyond a reasonable doubt -- when such a plausible defense exists and no conclusive evidence has emerged showing that his recollections of his contacts with journalists were intentionally false.

Ask any federal prosecutor, current or former, whether leak investigations are worth the effort and she'll say they are a monumental waste of time and resources. "The only reason to do them is to do them," one former prosecutor says. "Maybe they have a deterrent effect on loose lips."

But the certain cost of this elusive benefit, if any, is too high, since there are plenty of polygraphs and other devices for the government to ferret out any compromisers of its true secrets. Worse, leak inquiries end up harming the very relationships between government officials and journalists that must exist in confidence for the public to stay informed. By giving us headlines now, they all but ensure that we'll receive less real news later.

Even a conviction of Libby would not justify an investigation that has led many of Washington's finest journalists to ponder how to dumb down their files and remove traces of their contacts with sources as if they worked in the capital not of a great democracy but of Franz Kafka's or George Orwell's worst nightmare of a police state.

As for fatigue, look no further than the lawsuit filed last week by Plame and her husband, Joseph Wilson, against Libby, Cheney and Karl Rove.

Leak investigations fueled by political infighting always make a particularly poisonous combination, to be sure, but a reading of the Plame-Wilson complaint reaffirms with snapshot clarity that journalists were brought into the middle of what was and always has been a political dispute over who was to blame for the prewar intelligence failures regarding Iraq. The Plame-Wilson lawsuit is mostly a political polemic, but it nonetheless threatens to drag out for several more years the dismembering of confidential relationships between journalists and their sources.

For all their futility and misguided initiative, leak investigations and private suits seeking to use journalists as leverage against the government are likely to proliferate. Reporters will almost certainly be forced again to give up their confidential sources, go to jail or, in civil cases, look to the deep pockets of their employers to pay to protect their sources' identities, as recently occurred in the settlement of the Privacy Act lawsuit that scientist Wen Ho Lee brought against the government.

We can hope for a federal shield law. We can hope for judicial action to protect confidential sources or assess the viability of an investigation before such relationships are ruined. Better yet, what is needed is some real prosecutorial soul-searching, independence and tough-mindedness about the need to investigate so-called leaks in the first place.

The writers are partners at Baker Hostetler, practicing media law.

© 2006 The Washington Post Company