Following the Libby verdict Special Counsel Fitzgerald offered some bold words about the importance of truth in the American judicial system:
"The truth is what drives our judicial system. If people don’t come forward and tell the truth, we have no hope of making the judicial system work.”
Inspirational! Yet, surprisingly for a man who claims to place such a premium on the truth, Mr. Fitzgerald demonstrates an inconstant relationship with the truth in his own conduct. Let's take a few examples of his own chicanery and deceit from these very proceedings against I. Lewis Libby.
Fitzgerald's cozying of Tim Russert, a key witness against Libby, provides one example. Tim Russert cooperated with the FBI in the fall of 2003 when they had questions about Libby's testimony. In 2004 Fitzgerald wanted Russert to reprise his cooperation and tell the grand jury what he had told the FBI.
Russert and the NBC lawyers negotiated for a bit with Fitzgerald (see p. 30 of Fitzgerald's filing) and then (presumably) decided that in order to maintain appearances it would be better if Russert testified under a court order. But let's note the phony and misleading affidavit signed by Tim Russert - he explains the importance of maintaining source confidentiality as part of a dynamic free press, and then tells the judge (paragraph six) that he cannot even confirm to the government whether he had in fact spoken at all with the government official in question.
My goodness - don't you suppose the judge would have been intrigued to learn that Russert had already confirmed the fact of the conversation, as well as its content, with the FBI? And surely a prosecutor as devoted to the truth as Mr. Fitzgerald would not allow this sort of lie by omission to be left uncorrected in front of a Federal judge?
In fact, Fitzgerald would let this go uncorrected (and stop calling him "Shirley"). But beyond that, Fitzgerald actually made no mention of Russert's previous cooperation is his own filing - he made the point that Russert had, on other occasions, unilaterally waived source confidentiality, but did not cite Russert's extremely on-point waiver in the current instance (see the Richard Clarke footnote on p. 33).
I can't imagine that the two sides thought they could keep Russert's cooperation a secret in the event of a trial, but in the summer of 2004 it was hard to predict where all this was headed. And preserving Russert's secret allowed him later to claim to have taken the high road when he belabored reporters such as Robert Novak for caving in to investigators. This is classic:
Russert asked why it took so long for [Novak] to say anything about his testimony.
"When I was subpoenaed, we announced it," said Russert. "When I testified before Patrick Fitzgerald, we announced that in what I had said and so, too, with Time Magazine and The New York Times.
"Why did you wait almost three years to tell the public that you had been subpoenaed and what you said?" Russert asked.
Ah, well, who knew?
Patrick Fitzgerald continued his dancing with the NBC stars in the matter of David Gregory. Former press secretary Ari Fleischer, testifying under a grant of "use immunity", said that he had disclosed information about Valerie Plame to John Dickerson (then of TIME, now with Slate) and David Gregory of NBC News on July 11 while on the President's trip to Africa.
Fitzgerald never called either of these reporters to confirm or reject this allegation (hey, dude, where's my leak investigation?) but he did note the allegation in a letter to the defense while negotiating disclosure with them. But wait! Did I say he noted the allegation? Let's see what he wrote (Exhibit C starts on p. 10; points 12-16 are on p. 13) - he told the defense that, he was "not aware" of any reporters who knew about Ms. Plame other than Bob Woodward, Bob Novak, Judy Miller, Matt Cooper, and Walter Pincus. That's correct in a Clintonian sense - since Fitzgerald had not vexed himself to call Dickerson or Gregory, one might say he did not "know" whether they had received a leak, although he was certainly "aware" of the possibility.
However, Fitzgerald then added this:
We also advise you that we understand that reporter John Dickerson of Time magazine discussed the trip by Mr. Wilson with government officials at some time on July 11 or after, subsequent to Mr. Cooper learning about Mr. Wilson's wife. Any conversations involving Mr. Dickerson likely took place in Africa and occurred after July 11.
The date is wrong - it was the morning of July 11 - and where is David Gregory in this story? Ari Fleischer's trial testimony was clear (1, 2, 3)- if his grand jury testimony was different, the defense would have highlighted that as yet one more example of his dubious memory.
So why the half-disclosure by Fitzgerald in December 2005? Why the attempt to delay the disclosure that Gregory may have received a leak (much closer to the trial date the defense got Fleischer's grand jury testimony)? Hard to guess - obviously, Gregory's actual story (if he ever tells it) will either discredit Fleischer or Russert, two key witnesses for the prosecution. But knowing Fitzgerald's commitment to the truth, that couldn't be the reason he lied by omission in his letter to the defense.
Let's just wrap up by introducing one more mystery that may be resolved soon. Judy Miller fought her grand jury subpoena; as part of the legal battle, Fitzgerald submitted a sealed affidavit to the court explaining the importance of her testimony. What did he submit? We still don't know, although Dow Jones and the AP are battling to find out.
But echoes of his filing reverberate in the court decision that ultimately sent Judy Miller to jail for 85 days - there is this, for example from Henderson:
Because my colleagues and I agree that any federal common-law reporter’s privilege that may exist is not absolute and that the Special Counsel’s evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.
Or this from Tatel:
Because I agree that the balance in this case, which involves the alleged exposure of a covert agent, favors compelling the reporters’ testimony, I join the judgment of the court. I write separately, however, because I find Branzburg v. Hayes, 408 U.S. 665 (1972), more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia—and even the Department of Justice—would require us to protect reporters’ sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy.
So what was in that evidentiary proffer? We may find out one day, but let me predict what we will not find:
an affidavit telling the justices that Armitage and Rove had been identified as the leakers to Novak, but no charges were planned against either of them for that leak;
that Ari Fleischer had confessed to leaking to John Dickerson and David Gregory, but there was no plan to call those two reporter to confirm that;
that Libby had confessed to leaking to Judy Miller on July 12, but he may also have leaked to her on July 8 and Fitzgerald was looking for a perjury charge;
and that Libby had confessed to leaking to Matt Cooper, but again, a perjury charge was in the works.
I'm only guessing, but the judges may have been less convinced of the wisdom of jailing Ms. Miller in that context.
Of course it goes without saying that, given his devotion to truth in the judicial process, Fitzgerald may have disclosed exactly that.
ERRATA: Here is the site for related filings in the Russert subpoena.
In Miller, Sentelle concurred without agreeing that a reporter privilege exists; Henderson concurred but ducked the existence of a reporter privilege, arguing (as excerpted above) that the facts on offer trump any plausible privilege, as did Tatel, also excerpted above.
SHORTER JANE HAMSHER: Lacking a coherent response I will invoke Ken Starr and trust my readers to boo, skip the link, and avoid unpleasant facts.