Libby v. The Press
If one were tempted to feel sorry at all for Scooter Libby, today would have been the day it kicked in. The morning started with the last three hours of Libby's testimony before the grand jury, which climaxed with Patrick Fitzgerald's comprehensive retelling of all the conflicting stories Scooter had managed to string together over the course of his various appearances. The absurd litany of obfuscations Libby had blurted out under the pressure of Fitgerald's relentless, detailed questioning made him seem both desperate and intellectually feeble not to have thought out his story with any more clarity. It was a harsh indictment, to say the least.
But the highlight of the day was the appearance by Tim Russert, upon whose testimony the entire case pivots. Russert hobbled in on crutches, looking like he'd rather be just about anywhere else. Fitzgerald finished with him in short order — quite simply, Russert maintains that he never told Libby about Valerie Plame's identity. Unless the Libby defense team could knock a hole in Russert's story, Scooter has serious problems, and Ted Wells began his cross-examination by asserting that it was completely implausible that Russert would not have taken the opportunity to query Libby about Wilson at a time when the story was hot. Russert claimed that Libby was rather irate when he called to complain about Chris Matthews, who had several times in the previous week asserted that Wilson had been sent to Niger at the behest of the Vice President. Russert claimed that Libby was pitching a bit of a fit and he really didn't do much but listen. As much as Wells tried to tear at the edges of Russert's story, Father Tim was low key and rather passive; he didn't give Wells anything to work with. Wells tried to bring up an incident from four years ago when a Buffalo newspaper had attacked Russert's questioning of Hillary Clinton, and Russert had admitted a memory lapse. I guess this was supposed to prove that Russert could've forgotten his conversation with Scooter as well, but the connection seemed weak and tenuous.
The real fireworks started when Wells began questioning Russert about his initial conversation with FBI agent Jack Eckenrode, and I have to admit I was rubbing my ears to make sure I was hearing things right. Remembered the high-flown first amendment language of Russert's motion to quash his subpoena?
[T]he Special Prosecutor's subpoena, which purports to compel Mr. Russert to testify before the grand jury about the contents of a communication he allegedly had with a specific Executive Branch official, infringes on Mr. Russert's right to maintain a confidential relationship with his source. The fundamental importance of a journalist's right to resist compelled disclosure of confidential communications with news sources is consistently reflected in the law of this Circuit, in the regulations governing the Department of Justice ("DOJ") when it contemplates the issuance of subpoenas to journalists, and in the District of Columbia's "shield law." Accordingly, to permit a prosecutor to compel a journalist both to identity a confidential news source and to testify about the contents of their communications before a grand jury, a reviewing court must determine that there is an overriding need for such testimony and that the information sought may not be secured through alternative means.
In this case, the Special Prosecurot was appointed to investigate and, if appropriate, prosecutor those responsible for any unlawful disclosure of Ms. Plame's identity and of her relationship with the CIA. The undisputed fact that Mr. Russert was not a recipient of such a disclosure precludes the Special Prosecutor from demonstrating that his need for such testimony overrides Mr. Russert's right to safeguard his confidential communications with his sources. As a result, the subpoena should properly be quashed because it cannot be squared with the First Amendment, federal common law, or with the applicable DOJ regulations and because it is "unreasonable and oppressive" with in the meaning of Fed. R. Crim. P. 17.
In his response to the motion to quash, Fitzgerald openly scoffed at Russert's pliant ethical standards:
It is also relevant to note that Russert has treated an asserted waiver of the reporter’s privilege quite differently when convenient. When Richard Clarke published his book Against All Enemies and testified before the National Commission on Terrorist Attacks Upon the United States (also known as the September 11 Commission), Clarke became subject to intense media scrutiny. On March 24, 2004, the White House disclosed Clarke’s identity as the "senior administration official" who gave a "background" briefing in August 2002. When Clarke appeared as a guest on Meet the Press on March 28, 2004, Russert noted the White House had been aggressive in attacking Clarke’s credibility and had identified Clarke as the source for the background briefing — without indicating any concern about the "voluntariness" of the waiver, in which Clarke apparently played no role. (Copy of the March 28, 2004, Meet the Press transcript, Exhibit 1). Russert did not hesitate to broadcast out of any concern that such disclosure might chill future background sources.
But what Fitzgerald didn't let on at the time was that the cavalier attitude Russert had taken toward Clarke had also initially been the one he applied with Libby. When Eckenrode called Russert, Father Tim sang like a choirboy. He told Eckenrode everything about the conversation, even though the deal for his eventual testimony before the grand jury only required him to reveal what he had told Libby, not what Libby had told him. The first amendment hugging was an afterthought, and where it came from is a mystery — Russert claims it was to prevent a Fitzgerald fishing expedition, but it just as easily could have come from lawyers at NBC, Tim's reticence about having his chattiness publicly known or even a request from that special someone from within the administration who seemed to find the message so easy to control on Meet the Press. Whatever fueled his change of heart, at no time did Russert seem to think he owed the public any kind of explanation for what had transpired. As a confirmed "member of the club," it was obviously the last thing that occurred to him.
Tomorrow, another member of the club whose story has been as inconsistent and shot full of holes as Russert — Andrea Mitchell — will try to quash a subpoena to appear for the defense. She'll be joined by Jill Abramson of the New York Times, who is no doubt anxious to avoid being questioned about whether Judy Miller ever pitched the Wilson story to the Times after Libby fed it to her. It was my understanding that Fitzgerald will also be filing motions to quash these tonight, and for perhaps the first time I have to say there is a side of me that hopes he does not meet with success. The only way the public is every going to get any straight answers out of these two is under oath, and the fabrications one tells so freely to Don Imus become much more risky before a judge and jury. Russert's testimony continues thereafter, so please drop by FDL for more live blogging coverage. As the trial proceeds, you never know what you're going to catch a glimpse of behind the cocktail weenie curtain.