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Will Reporters Talk in the Plame Case?

By Jeralyn, Section Valerie Plame Leak Case
Posted on Fri Jan 02, 2004 at 04:46:39 PM EST
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Via Atrios who got it from Time:

FBI investigators looking into the criminal leak of a CIA agent's identity have asked Bush Administration officials including senior political adviser Karl Rove to release reporters from any confidentiality agreements regarding conversations about the agent. If signed, the single-page requests made over the last week would give investigators new ammunition for questioning reporters who have so far, according to those familiar with the case, not disclosed the names of administration officials who divulged that Valerie Plame, wife of former ambassador Joe Wilson, worked for the CIA.

We're glad to see this issue brought up. The investigation may not get too far if it's just based on interviews and emails of White House officials. And we think that's what the White House is counting on. We doubt we'll see the White House encourage reporters to come forward. From the October 5, 2003 Washington Post (available on Lexis.com):

Victoria Toensing, who as an aide to the late senator Barry Goldwater helped write the 1982 law banning the disclosure of covert operatives' names, said journalists were exempted because they, unlike federal officials, don't have clearances for classified information. The only exception is if a journalist engages in a "pattern" of naming operatives, inspired in part by CIA agent-turned-author Philip Agee, who repeatedly tried to expose agency personnel around the world.

Asked about the possibility of subpoenaing journalists in this case, Toensing, a former federal prosecutor, said: "I don't think it's ever a good idea. You're just going to make a hero out of the reporters, who can raise their book prices. It's like calling a lawyer to talk about attorney-client privileged information. You're not going to get it."

Lucy Dalglish, executive director of the Reporters' Committee for Freedom of the Press, said journalists -- like doctors, lawyers, therapists and the clergy -- deserve to be shielded from having to testify. But if Novak were dragged into court, she said, "you think he wouldn't gladly face contempt? This is the kind of thing that young journalists dream of. They love to go to jail."

Maybe, maybe not. But subpoenas in leaks probes have been tried before--usually unsuccessfully. The Clarence Thomas-Anita Hill case is one example:

[from the same Washington Post article]

Timothy Phelps, one of two Newsday reporters cited last week in a White House counsel's order not to destroy documents or phone records in the Wilson case, went through such an ordeal in 1991. When he and National Public Radio's Nina Totenberg broke the story of Anita Hill's sexual harassment allegations against Supreme Court nominee Clarence Thomas, the reporters became the subject of a Senate leak investigation. Phelps was hit with a subpoena for his home and office phone records, which was blocked when a Senate committee refused to enforce it. And his government sources came under investigative scrutiny.

"It was very difficult to get any reporting done when they're under this kind of order to produce any records relating to any contact with me," Phelps said. "And that is also the case today. I'm not getting my phone calls returned."

Attorney General John Ashcroft must approve any subpoena of a journalist under his department's restrictive guidelines, which is why it happens so rarely. "The essential guiding principle is that subpoenaing a journalist should be the last resort," said Justice Department spokesman Mark Corallo. "We should do everything we can to avoid the chilling effect on the press."

The guidelines say: "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media. . . . In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation."

Law enforcement sources familiar with the CIA case say subpoenas have basically been ruled out but reporters may be asked to submit to voluntary interviews. "It would be improper for the FBI not to call and say, 'Are you willing to sit down for an interview?' " said one official who asked not to be identified because of the case's sensitivity. "When the reporter says no, that would probably be the end of it."

We don't see any incentive for the White House to back the FBI's request for voluntary releases. Most likely, the FBI request will be an empty gesture.

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