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Some See Indictment as 'a Devastating Day for Journalism'

October 29, 2005|James Rainey and Matea Gold | Times Staff Writers

Accustomed to telling the story rather than being at the center of it, three journalists faced the extraordinary prospect Friday of holding key information that could send a top White House operative to prison. A variety of media watchers said they found that prospect chilling.

In what promises to be an uncommonly media-centric prosecution, Special Prosecutor Patrick J. Fitzgerald charged vice presidential Chief of Staff I. Lewis "Scooter" Libby largely based on the testimony of journalists: NBC's Tim Russert, Time magazine White House correspondent Matthew Cooper and New York Times reporter Judith Miller.

They contradicted Libby under oath, exposing him to charges of obstructing justice, making false statements and perjury.

And Libby, who had been Vice President Dick Cheney's top aide until he resigned Friday, sought to use the media in his alibi -- telling investigators he had not leaked the name of CIA operative Valerie Plame but was at the end of a long chain of journalists who passed on a rumor.

On at least three occasions during his news conference Friday, Fitzgerald cautioned journalists and the public not to fear that the case would open the floodgates to prosecutors demanding testimony from journalists about their confidential sources.

"I do not think that reporters should be subpoenaed anything close to routinely," said the prosecutor. "It should be an extraordinary case. But ... what is different here is the transaction here is between a person and a reporter; they're the eyewitness to the crime."

Some media analysts said they appreciated Fitzgerald's assurances and acknowledgment of the importance of reporters protecting confidential sources. But they also worried that the prosecutor's actions could set an unfortunate precedent.

In the last year alone, more than 30 subpoenas have been issued in federal courts ordering reporters to testify, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

"I am disturbed that this is the first time I can think of that an indictment was drawn up and someone charged with felonies based pretty much on conversations an official had with reporters about a news story," Dalglish said. "I think we are on new ground here."

Robert Zelnick, chairman of Boston University's journalism department, called the release of an indictment based on testimony from reporters "a devastating day for journalism."

"As someone who covered the national security beat, we're dependent on those relationships for insightful news," said Zelnick, an ABC News correspondent for two decades. "A day like today casts a pall over the whole network of relationships."

Tom Rosenstiel, a veteran Washington reporter who heads the Project for Excellence in Journalism, said future prosecutors might not proceed with Fitzgerald's apparent restraint, calling on reporters only as a last resort.

"In my experience ... the first time you go down a road, there is a lot of care given to stay on the trail and to not foul the ecosystem," Rosenstiel said. "But once there is enough foot traffic off the trail, a lot of trashing and damage can get done."

Journalists have felt queasiness, however, about using the Plame case to argue for protecting confidential sources. Rather than a classic case of a low-level bureaucrat demanding secrecy to expose government wrongdoing, the vice president's powerful aide, if the charges prove to be true, hid behind a pledge of anonymity to attack an administration critic.

Rory Little, a criminal law professor at UC's Hasting College of Law in San Francisco, called the case "the ugly side of leaking."

"I don't know if I want to live in a world where the media protection [of anonymous sources] is being used to serve the cynical interests of government officials who want to use the media for their own purposes," Little said. "The media is going to have to think very hard about how they deal with these matters."

Although Libby gave waivers to the three reporters so that they could testify before the grand jury, Dalglish and others worried that a parade of journalists testifying against a once-confidential source might scare off those struggling with whether to come forward with important information.

But in the short term, such a chill has not been apparent, some journalists said.

Jim Kelly, Time magazine's managing editor, said that Cooper's testimony in the case had had "no negative impact" with sources. "We still have plenty of confidential sources speaking to us," Kelly said.

Time's political correspondent Karen Tumulty agreed, but said the effect could be long-term and subtle. "How can you tell about the dog who is not barking?" Tumulty asked.

The indictment presents a more immediate dilemma for the journalists involved, since Cooper continues covering the White House and Russert remains NBC's top political analyst, Washington bureau chief and moderator of the influential "Meet the Press."

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