The Libby Trial's Implications for the Media

Lucy Dalglish
Executive Director, Reporters Committee for Freedom of the Press
Tuesday, February 13, 2007; 2:00 PM

The defense team in ex-Cheney aide I. Lewis "Scooter" Libby's perjury trial has opened its case by calling D.C. reporters to divulge who told them about CIA agent Valerie Plame.

Executive Director Lucy Dalglish of the Reporters Committee for Freedom of the Press was online Tuesday, Feb. 13 at 2 p.m. ET to discuss the legal and ethical implications the case holds for the media. Prior to joining RCFP, Dalglish was a Minneapolis-based media lawyer; before that she spent 13 years as a reporter and editor for the St. Paul Pioneer Press.

The transcript follows.


Lucy Dalglish: Greetings everyone!

Let's get started. I'm going to focus mostly on the legal questions because that's where I have the most expertise.


Raleigh, N.C.: Given your position, I think I can predict your thoughts on the spectacle of a bunch of reporters being called in to testify in a case such as this. (You're a lil' bit freaked out, right?) Given that, what if any changes in the canon of journalistic ethics would you recommend to avoid these situations?

Lucy Dalglish: No, you're wrong -- I am super-duper freaked out. The notion that reporter after reporter can be called to testify about confidential conversations with sources horrifies me.

There are a few things we media lawyers have been advising clients to do to minimize their risk of being subpoenaed. For example, we recommend they not use their home or office telephones and use disposable phones instead. We also strongly suggest they have comprehensive conversations with their sources about the exact scope of the promises they are making.

I think the basic "canons" remain the same: Report the truth, minimize harm, keep promises and act independently.


Reading, Mass.: Is there an ethical difference for a reporter talking to the FBI about conversations with a source and a reporter talking to a federal grand jury?

Lucy Dalglish: If the source was a confidential source, I don't think there is a difference.


Burke, Va.: I care about freedom of the press but the more I watch the passel of overpaid, uncurious, played-by-the-Bush-administration weasels on the stand the more I enjoy it. I'd always kind of suspected these guys weren't the noble people trying to ferret out the truth they claimed they were. I feel bad for the Sports journalist who is being threatened with jail, but seeing Russert have to answer questions -- I love it.

Lucy Dalglish: I've not enjoyed any of it. I know most of the reporters and editors who have been forced to testify, and they are hard-working, conscientious journalists. They have very difficult jobs and most days they perform admirably.


Mobile, Ala.: Re: the ethics of Mr. Wilson's writing an Op-Ed piece and the paper those of that printed it. Mr Wilson was a CIA agent when he went to Niger (regardless of whether he worked for the CIA full-time, at that moment he was a CIA agent). How then can he legitimately disclose what he learned in Niger when, for instance, a Station Chief in Niger, undoubtedly would be prosecuted or at least fired for making a similar disclosure in The New York Times?

Lucy Dalglish: That's a question I remember asking myself when the Wilson/Plame story first broke. I don't know what his obligations were. Perhaps because he went there not as an employee but as a favor to the CIA he did not have a legal obligations to keep silent about what he found out.


Albany, N.Y.: I realize that reporters need to protect sources, but in creating the false impression that they did not know who leaked Plame's name, weren't these reporters essentially lying to the public, and isn't that a more important issue than protecting these administration sources?

Lucy Dalglish: I don't recall reporters saying they don't know who leaked the name (except for, perhaps, Tm Russert). My recollection is that most of them said they had sources they were not willing to identify.

Having been a reporter (many years ago), I know that often, at the time you make a promise of confidentiality, you have no idea whether the information is going to take you to a blockbuster story or into a black hole. One thing I have always believed, however, is that when you made a promise to a source, you keep it.


Monroeville, Pa.: A prosecutor being able to jail anyone who won't answer any or all specific questions on a topic he chooses, to incarcerate that person for the 18-month duration of the grand jury, is a travesty of justice. And then he can continue that person's time behind bars if he wants to impanel another 18-month grand jury attempting to force the person to answer the same or other questions, and if he still does not have the cooperation of the now-jailbird at the end of that grand jury, he can continue impaneling 18-month grand juries indefinitely. The 1972 Supreme Court decision that allowed this modus operandi to exist for prosecutors is a repudiation of our Constitution's First Amendment rights, and a flagrant corruption of the unique justice system for protection of civil rights that was so carefully defined and scripted by our forefathers.

Lucy Dalglish: You won't get any argument from me.


New York: The Libby trial has affirmed the insular establishment-protecting reputation of the national media. While reporters appear one after the other in the courtroom and on the chat shows we (the public) are receiving stunted legalistic versions of what happened here. Everyone who follows the case knows that it really is about the management of information and the shameless attempt by the administration to obstruct the truth. They got a lot of help from reporters who decided their access was more important than our right to know. These same reporters shortly will be selling us a new war -- should we expect to rely on their judgment of what truths to protect and what lies to let slide?

Lucy Dalglish: In the aftermath of 9/11, I also was disappointed in the timidity of the news media. Those of us who were out there pushing reporters to be more aggressive in covering the administration's pursuit of government secrecy often got hate mail and death threats. But I believe most reporters have learned an important lesson in the past few years and will continue to improve in their role as watchdogs. I'm seeing evidence of the pendulum swinging back every day.


Arlington, Va.: Frankly, I am disgusted with the Washington Press Corpse. The testimony at the Libby trial yesterday just underscored my opinion. They are more concerned with being invited to the right cocktail parties, and hobnobbing with the right White House insiders, than in comforting the afflicted and afflicting the comfortable. The White House lies to them, they know they are being lied to but continue to parrot the White House meme. Stop trying to be the cool kids and do some real work for a change.

Lucy Dalglish: Quite honestly the reporters I work with in Washington usually don't have time to hit cocktail parties. There are a few egomaniacs, but most reporters got into the business because they have enormous respect and reverence for democracy and believe they have an important role in protecting it.


Ashland, Mo.: If revealing a CIA agent's name is a crime, why isn't a reporter an aider and abetter if he or she repeats what they have been told or refuses to identify the leaker? How is this any different from a member of the public hiding a robber in his or her house?

Lucy Dalglish: There are several aspects of your question that should be addressed:

First of all, I think it has been demonstrated conclusively that identifying Valerie Plame's name in this particular case was not a crime.

Secondly, if the intelligence identities act is violated, it specifically exempts journalists from being charged with a crime.

Third, journalists have very good reasons for refusing to identify sources. We can talk more about that later, if you'd like.


San Francisco: Do you think academic training and work experience in actual journalism would have helped Tim Russert from getting into such a bind? The idea that conversations with government officials are "off-the-record" unless he explicitly asks for and receives permission seems so contrary to how people imagine journalists behaving. Is is wise for media >outlets to hire political spokespersons to become journalists?

Lucy Dalglish: We don't have licensing of journalists in this country. Anyone can become a journalist by doing journalism. They don't have to go to school to prepare for it.

I think Tim Russert (who is a valued member of the steering committee of the Reporters Committee for Freedom of the Press) established his bona fides as a journalist a long time ago.


San Francisco: Can you explain why no Traditional Media outlet is providing live-blogging of the trial of Lewis Libby? Seems to me that if TradMed and its reporters were interested in redeeming themselves for their compliant role in the run-up to War on Iraq, live-blogging the trial might be one place to start.

Lucy Dalglish: Interesting question. I happen to know that the access to the trial by media bloggers was negotiated during a two-year period by Robert Cox of the Media Bloggers Association. I think Cox just thought of it before anyone else, and he passionately worked to get his members accredited.

If this blogging experience works well, my guess is that we'll see more traditional media doing it in future trials. I think it has been very interesting to read the blogs.


Columbus, Ohio: Do you draw a distinction between anonymous sources ... for instance, you could be protecting a whistleblower from repercussions by not revealing their identity. In the Plame case, this was turned on its head. The government itself was discrediting a whistle-blower by anonymously leaking information to reporters.

Lucy Dalglish: Now you know why I was quoted in the Wall Street Journal last week describing watching this messy case as "being on the floor of a sausage factory."

Again, I think reporters have learned in the past couple of years to be far more discriminating about who they offer confidentiality to and under what conditions they offer it. I get interviewed by the press all the time and have noted that reporters have become much more precise about the terms of the confidentiality agreements they make. Obviously whistleblowers deserve the utmost protection.


Baltimore: What legal strategy led Libby's team to allow Judith Miller to be jailed for weeks, only to allow her release later?

Lucy Dalglish: I wasn't privy to the conversations Libby's team had with Judy Miller. Certainly they could have come forward on their own to say Libby was a source and spared her the jail time. I recall having conversations with her two years ago in which she said she was not going to ask her source for a waiver because she strongly believed that would be unethical. Perhaps her personal legal counsel persuaded her to change her mind once she spent time in jail.


Columbus, Ohio: "First of all, I think it has been demonstrated conclusively that identifying Valerie Plame's name in this particular case was not a crime." That is not true. The CIA referred this case to the Justice Department as an Intelligence Identities Protection Act investigation. That is all we know about whether the IIPA was violated.

Lucy Dalglish: That may have been what the referral was about, but I believe Fitzgerald's investigation concluded releasing her name (while stupid and possibly unethical) was not a crime under these circumstances.


Baton Rouge, La.: From Ari Fleischer's testimony, we know that David Gregory was leaked Plame info. Add that to Andrea Mitchell's "Everybody knew" statement and how likely is it that Tim Russert's "it was impossible for me to know" holds up? Wouldn't Mitchell and Gregory have shared info on what was at the time the biggest news story?

Lucy Dalglish: Aha. You probably have never worked in a newsroom. Journalists are very protective of their sources and stories. In addition to these competitive reasons, these folks are traveling a lot and preoccupied with their own assignments. While it may seem logical to you that Mitchell and Gregory would have shared the information, it doesn't surprise me that it wasn't.


New York: I am struck by your repetition of reference to professional standards and high ideals, but no discussion at all of the extent to which reporters should be careful not to be used by administration reps. This was an obvious case of same, but the response of the press is a shrug: "We get the story in whatever form we can; the rest is the public's problem." In this case was not "the story" the attempt to cast doubt on the Ambassador's credentials?

Lucy Dalglish: You are stating the obvious -- of course reporters should be careful not to be "used" by the administration. At the end of this very troubling case, I'm still not sure what "the story" is going to turn out to be.


Boston: The Libby trial reads like a witch hunt, something this country has seen before and looks back upon with the question of why did it happen? As a citizen I wonder, why did the Justice Department let Fitzgerald continue after Armitage admitted he was the source? Do you believe Libby's "lies" are worthy of criminal prosecution whereas other "lies" from reporters and government officials are equal but not charged? Do you think with this liability of a witch hunt, trial and persecution, that it will detrimentally effect willingness of a reporter to go after an unpopular story -- David against a Goliath? Will David stop trying because he can't afford the attorney fees and trial? Should there be public funds available to defend the reporters?

Lucy Dalglish: I'll answer your last question first -- under no circumstances should public funds be available to defend reporters. Yuck!

I don't know a lot about the inner working of the Justice Department but I believe Fitzgerald was tasked with investigating the leak and other "related" crimes. Keep in mind that once he was given the case as a special prosecutor, the Justice Department gave him enormous discretion to pursue things as he saw fit. Prosecutors have enormous discretion and I personally believe that once Armitage identified himself as the original source, the case should have been dropped.

Is this case having a chilling effect? Absolutely. We know that some sources are drying up and some newsrooms (particularly smaller ones) are dropping important investigative stories because they are concerned about winding up in court (which ain't cheap).


Cache Valley, Utah: Hello Ms. Dalglish -- thanks for the chat! Over at the CNN web site there is a "news alert" proclaiming that Cheney and Libby will not testify. Do you have any thoughts on this development?

Lucy Dalglish: Very interesting ... that doesn't surprise me at all. Putting Libby and Cheney on the stand would have been an extremely risky move, but if I were a juror I have to believe I'd want to hear from Libby himself. I'd want to judge for myself whether this man had as bad a memory as his lawyers claim.


Lucy Dalglish: I'm told it's time to end our chat. Thanks for the thought-provoking questions, folks.


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