Libby Trial Prompts Scrutiny on Media
Tuesday, March 6, 2007; 6:25 PM
WASHINGTON -- The Libby conviction, based on journalists' testimony, is forcing the rapidly changing media to re-examine how they can gather news without getting hauled into court.
White House aide I. Lewis "Scooter" Libby was found guilty Tuesday on four felony counts of lying about his role in exposing undercover CIA officer Valerie Plame. He could face up to 25 years in prison.
The case was hard on the news media, too.
"The trial has demystified the priestly practices of Washington journalism," said Roy Peter Clark, a senior scholar at the Poynter Institute, a school and resource center for working journalists. "I think we'll see prosecutors going after journalists more often."
Nearly a dozen of Washington's best-known journalists took the stand during the five-week trial to recount confidential interviews. Most of them testified unwillingly, under court order. Only 13 media subpoenas had been granted in the previous 15 years involving confidential sources, according to the Justice Department.
Special Prosecutor Patrick Fitzgerald obtained waivers from several government officials that released journalists from their confidentiality promises, a tactic that media advocates say is coercive and chilling on potential whistleblowers.
After the verdict Tuesday, Fitzgerald defended his decision to subpoena journalists, saying it was necessary because Libby was falsely claiming that he had learned about Plame from reporters. Fitzgerald also suggested that prosecutors wouldn't hesitate to order reporters into court again.
"Questioning reporters should be a last resort in a very unusual case, but what people should realize is that we never take that off the table," he said.
"This was a case where that was appropriate," Fitzgerald said. "Talking to reporters proved a lie."
News organizations are considering dramatic steps. In a time of declining print advertising revenue, newspapers are confronting the prospect of million-dollar fines, hefty legal fees and jail time if they resist subpoenas.
For example, reporters might be asked not to store sensitive notes on company computers and to use disposable phones if necessary to protect a source.
There are limits. Jane Kirtley, a media ethics professor at the University of Minnesota, said reporters should have flexibility to negotiate deals with sources regarding "background" and "off-the-record" discussions _ or risk not getting information at all.
Spelling out explicit terms with sources beforehand could scare off whistleblowers, she said, if reporters are essentially forced to issue a "Miranda warning _ that anything you say I may need to cough up so I won't go to jail."
Media advocates say what may be needed is a federal shield law protecting journalists from disclosing confidential information in court. Thirty-two states and the District of Columbia have such laws, but there is no federal protection.
Until then, the Poynter Institute's Clark said reporters will simply have to find ways to survive.
"However bad we may look on a particular day, once the gears of the sausage machine are revealed, I hope people realize that journalists don't have to be perfect in order to be responsible," he said.