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Max Frankel’s Ghost


(Photo credit Bill Cunningham/The New York Times

The saddest moment of the Scooter Libby trial, for me, was when I witnessed an exchange between Max Frankel, the last Executive Editor of the NYT to treat the gray lady with the respect she once deserved, and Robert Bennett, Judy Miller's personal lawyer. Frankel had been around, on and off, for a several days, working on a story for the NYT Magazine on the role of journalists in the case. Bennett had just finished shepherding Judy through a grueling day of Jeffress' attacks. And, at one point that day, Bennett actually stood before the court to defend Fitzgerald's attempts to limit Jeffress' questions.

Let me remind you why Bennett was even there. Judy had originally been represented by the NYT's chosen lawyer, Floyd Abrams. Abrams has had a laudable career defending the First Amendment. And in this case (at one point representing both Matt Cooper and Judy Miller), Abrams argued for an absolute reporter's privilege that does not really exist in legal precedent. He–and the NYT–chose this case, the defense of Judy Miller, to stage a battle over the sanctity of the reporter's privilege that exists (at the Federal level at least) primarily in custom, not in law. But at some point, Judy realized the First Amendment martyr role no longer served her purposes, so she hired the more pragmatic Robert Bennett to represent her interests, now distinct from those of the NYT.

Anyway, on this particular day, there in the hallway of Prettyman Courthouse, Frankel, the former Executive Editor of a then-great newspaper said this to Bennett, the lawyer who had been hired by the former reporter for the no-longer-great newspaper because the interests of the paper and the former reporter had diverged.

You did a great job for us today.

How could Max Frankel, I wondered, yoke the interests of the NYT and Judy Miller so closely? Why would he so unquestionably consider Judy Miller–a reporter the NYT had finally jettisoned when her complicit role in this story became clear–to still be a member of that club? The comment made me so sad, that a once-great figure like Frankel would tie his interests so closely to Judy's.

And so it was with great interest and a good deal of trepidation that I read Frankel's story today–the end product of his time at Prettyman Courthouse.

It's a story drawing on Frankel's entire career, salted with anecdotes of powerful men leaking important information to Frankel–JFK, LBJ, Dean Rusk–and drawing on a key brief Frankel wrote about the Pentagon Papers. With the quality of his prose and the mostly nuanced understanding of the complexities of the case, Frankel demonstrates how he earned his reputation, with real reporting. As with this passage, where Frankel sums up the Armitage-Woodward leak perfectly.

That’s how it’s done, in barroom style: an official playing bureaucratic tennis, protecting his boss, Secretary of State Colin Powell; a reporter preying on the knowingness of his source.

Sure, he gets two details slightly wrong (slightly mis-representing the INR memo and not reporting the dispute between Woodward and Pincus over whether the former told the latter of Plame's CIA employ). And, as I'll show, he grossly misrepresents Judy's testimony. But compared to what the NYT offers up as journalism these days, the story offered a remarkably good narrative of the trial.  

Yet the argument Frankel offers, like all other arguments the NYT has offered in this case, is fundamentally dishonest. Frankel has, indeed, finally yoked the fate and interests of the NYT to the complicit involvement of Judy Miller.

 Let me start by agreeing with Frankel. The damage to journalism–by this whole sordid affair–has been great.

The damage to newsgathering, I believe, has been significant. Celebrity journalists like Bob Woodward and Tim Russert may not lose access to sources, but more vulnerable reporters and less-wealthy media outlets will surrender to the subpoenas and jail threats now descending on them in unprecedented numbers. Some will betray confidences; some will suppress articles whose defense would be costly. Others may avoid risky reporting altogether. Sensing danger, many investigative reporters have become highly circumspect, using what one judge sympathetically called the methods of drug dealers to protect themselves: resorting to disposable cellphones, meeting sources outdoors and avoiding e-mail and other computer communication.

But I would be very particular about the source of that damage. It was not just–perhaps not even primarily–Fitzgerald's subpoena of journalists that did that damage. The damage was done when Robert Novak and Judy Miller and the NYT made themselves willing vehicles of Administration propaganda. The damage was done when the NYT–after publishing the name of Judy's source–tried to make a SCOTUS case arguing no one should reveal that source. The damage was not done by the WaPo, which deemed this case a real instance of criminal investigation and proceeded in the way that would do the least damage to custom of reporter's privilege. It was done by the NYT launching a dishonest appeal that–they knew–served to assist someone in the obstruction of justice.

So I guess I'll start there, with a funny detail about Frankel's article. As I said, Frankel seems to have an unusually  good understanding about some nuances of this case. He realizes that Libby was the probable source of Ari's depiction of the word "boondoggle." He blames Cheney as Rove's source of Plame's CIA employ. Frankel knows that OVP was at the heart of this leak, and he defends that case using evidence introduced at trial. He even argues that Libby and Cheney,

surely also recognized the legal risk in exposing Valerie Plame’s covert status — that the Intelligence Identities Protection Act prohibits anyone with authorized access to knowledge of a covert agent to intentionally disclose the agent’s identity to persons not so authorized.

In short, though he explains that the "offense was never established," Frankel makes a case that Libby and Cheney would in fact be guilty of the IIPA, complete with foreknowledge, if they leaked Plame's identity to a journalist.

But when Frankel characterizes the crimes Libby committed, he almost never discusses obstruction of justice. Sure, he admits once that Libby "lied and obstructed to protect the misuse of secrets." But he repeatedly names perjury as the crime at issue, arguing "perjury substitut[ed] for an unreachable, perhaps even nonexistent crime," describing reporters protecting Libby's perjury, and suggesting that Fitzgerald pursued journalists' testimony so he "would at least have a perjury case." And here's how he describes the lies in question:

In fact, Libby told the F.B.I. and the grand jury that he learned about Wilson’s wife — as if for the first time — from Tim Russert on July 10 or 11. He insisted that he had totally forgotten discussing her during the preceding month with Cheney and with officials from State and the C.I.A. Libby’s recollection of how he was “taken aback” by Russert’s revelation stood at the heart of his indictment, and his meandering re-enactment of his talk with Russert would clinch the case for the jury.

The other, subsidiary counts charged that Libby lied by denying knowledge of Wilson’s wife before the Russert conversation.

This is how Frankel portrays this trial as one about lying–by mistakenly focusing on the veracity of Libby's Russert story rather than Libby's knowledge of Plame. Yet in spite of Frankel's claims, Libby's knowledge of Wilson's wife is in no way subsidiary. It is the crux of the issue, the basis of the obstruction. By lying about whether he knew of Plame's identity on July 8, Libby hid the conversations in which he leaked Plame's identity to Judy Miller. Yet Frankel portrays this crime to be about nothing more than perjury, not a deliberate and successful attempt to prevent Fitzgerald from proving the underlying crime. 

Which is why it's so funny–or pathetic, really–how Frankel refers to Judy's involvement. First, let's look at how he describes the Iraq War.

That misfired adventure, and the buyer’s remorse of a press and public that accepted the war’s pretext, lay at the root of Libby’s perjury. For it was Cheney, with Libby’s active help, who had sounded the loudest alarms about Hussein’s “reconstituted” nuclear program, about his stores of chemical and biological weapons and supposed ties to Al Qaeda. When, mere weeks into the war in 2003, no such weapons could be found, it was Cheney and Libby whose reputations and influence were imperiled as much as the president’s.

Remarkable, huh? 3000 American men and women dead, and it's just a little "misfired adventure"? And see what he does with the subjects of this paragraph? There the "press and public" are, with their buyer's remorse, positioned together on one side, with Libby and Cheney, the guilty parties, on the other side. Frankel conveniently lumps the press in with the public, unwilling dupes, but in no way actors that worked with and for Libby and Cheney to sell this war to the American public. What a fundamental misrepresentation of the press' role in this war! Of how the majority of the population opposed the war, wanted nothing to do with it, until people like Judy Miller and Michael Gordon and Patrick Tyler came along and persuaded the public that this was something they ought to buy. Frankel does, at one point, admit that Judy's pre-war reporting lent "credence to the administration’s wild alarms about Iraqi W.M.D.’s" (he makes no mention of her war reporting). But he separates that from any question of complicity on the part of the press–or the NYT in particular. In fact, in a later discussion, Frankel claims that these poor journalists (and editors) were helpless until someone else came along and offered them a leak to counter those of the Administration. 

On the path to war in Iraq, high officials of the Bush administration leaked classified but far from reliable information about W.M.D.’s, then pointed to its publication as “evidence” of its truth. When no W.M.D.’s were found, they used the same flawed secrets to justify their misrepresentations. But reporters could not expose this skullduggery until they obtained contradictory leaks from disheartened intelligence officials. 

As if anyone couldn't figure out, from simply reading closely, the stuff that the NYT was reporting was–and remains–plain old propaganda. As if the editors of the NYT don't bear any blame for printing such crap on the front page of the NYT.

Having thus absolved the NYT from exercising the most basic critical reading skills, here's how Frankel portrays Judy's involvement in the case and her testimony at the trial:

On Tuesday, July 8, in what his normally detailed calendar listed only as a “private meeting,” Libby spent two hours at breakfast with Judith Miller to enlist her help in countering Wilson’s attack. He told the grand jury that he admired her reporting, on Al Qaeda and chemical and biological weapons, and presumably also her prewar articles lending credence to the administration’s wild alarms about Iraqi W.M.D.’s — credulous articles that The Times eventually disowned.

Miller testified that Libby brought her selected excerpts from a top-secret National Intelligence Estimate (N.I.E.) to buttress his claim that long after Wilson’s mission, the C.I.A. still endorsed reports that Saddam Hussein had “vigorously” pursued uranium in Africa. This brought back memories of my own similar encounters — of President Kennedy allowing me to copy a secret transcript to prove how the Russians lied to him about missiles in Cuba; of Secretary of State Dean Rusk confiding that the Southeast Asia Treaty, later invoked in support of war in Vietnam, was “not worth the paper it’s written on”; of Henry Kissinger casually bemoaning the anti-Semitism he experienced “in the highest places.” The established Washington routine meant that such revelations could be reported, provided that they were attributed only to “senior administration officials.” But on the subject of Joe Wilson and his wife, Miller’s notes showed, Libby took the added precaution of asking to be identified as “a former Hill staffer.” Though technically true, this was a devious dodge even by Washington’s tortuous rules of engagement, and it should have led Miller to realize that the remedy for bad leaks is more leaks.

Miller said that she had gone to breakfast eager to learn why the intelligence reports she had swallowed had been so wrong but that she found Libby too much concerned with the 16 Words, with “who said what to whom, what I call inside baseball in Washington.” The editor in me cringed at this justification for her not writing anything out of this interview. She could have been the first to recognize that the White House’s denigration of the Wilsons betrayed a bitter feud during which Cheney was angrily pressuring Tenet to take sole responsibility for the bungled intelligence. By following the trail of Libby’s leak back to C.I.A. informants, she could have produced a pretty good yarn.

Now let me remind you–on the general scope of the trial, Frankel did a reasonably good job. In particular, he did a meticulous job with Ari's testimony, noting the content and the secrecy of Libby's conversation with Ari, and claiming that "the sharpest contradiction [to Libby's grand jury testimony] was delivered by Ari Fleischer." How then–besides willful misrepresentation–should we understand his portrayal of Judy's testimony? Had you not followed the liveblog, you'd have thought Judy testified first and foremost about the purported NIE leak, which by my count constituted less than ten minutes out of about six hours of testimony and related arguments (and the liveblog, at least, does not support the assertion that "Libby brought her selected excerpts from a top-secret National Intelligence Estimate"). As to Plame? "But on the subject of Wilson and his wife." What!?!?! What, Max, what about the subject of Wilson and his wife?!?!?

In 7800 words, Frankel never once brings himself to admit that Judy testified that, on two occasions, Libby leaked Valerie Wilson's identity to her.

[Note, too, that Frankel falsely implies that Judy testified that she didn't write an article about Plame because it was too inside-baseball, rather than because Jill Abramson told her no.] 

And this is precisely the problem. The detail that Libby twice leaked Plame's identity to Judy is just as contradictory as Ari's testimony, and a hell of a lot more incriminating. Indeed, it is the crime the investigation of which Libby obstructed when he claimed to have learned of Plame's identity on July 10 from Tim Russert. Max Frankel wants to describe this as a trial about perjury–a lie about a conversation with Russert–when in fact the trial is about Scooter Libby, with the help of the NYT, hiding the fact that Libby leaked Valerie Wilson's identity to Judy Miller. If Libby did it with the foreknowledge and deliberation Frankel describes, then it was a criminal leak, precisely the thing Patrick Fitzgerald subpoenaed the journalists to find out.

And so the great reporter and last good Executive Editor joins in the NYT's obstruction, its willingness to shill for the Administration, to misrepresent the Administration's crimes. in so doing, he repeats the mistake the NYT made in the first place, when they argued that no one should reveal Libby's name even while they had already revealed it themselves. Frankel uses a cry for press freedom to cover up the NYT's complicity in this case.

You see, Max, it's not that we liberals have lost patience for reporters privilege. And our eagerness to have Judy testify came not just from a desire to see Cheney and Libby exposed.

Liberals were so eager to see Cheney and Libby exposed that they lost patience for reporters’ claims of privilege. 

Rather, it comes from a desire to see you exposed. It is time that the NYT stops pretending that it stands on the side of the public, as passive unwilling dupes of this Administration. It is time that the NYT stops laughing off the role of Miller and Gordon and Tyler and Raines and Keller and now Frankel in bringing this country to war on a pack of lies. It is time the NYT stops claiming these were leaks, rather than willful cooperation in the publication of propaganda.

And so, Max Frankel piles propaganda on top of propaganda, arguing the NYT's tired plea they were wronged in this case. 

It may sound cynical to conclude that tolerating abusive leaks by government is the price that society has to pay for the benefit of receiving essential leaks about government. But that awkward condition has long served to protect the most vital secrets while dislodging the many the public deserves to know.

As Justice Potter Stewart wrote after studying the unending contest between the government and the press during the cold war:

So far as the Constitution goes … the press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. … The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. The Constitution, in other words, establishes the contest, not its resolution. … For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.

In loose translation: Prosecutors of the realm, let this back-alley market flourish. Attorneys general and others armed with subpoena power, please leave well enough alone. Back off. Butt out.

No, Mr. Frankel. It's not a matter of tolerating abusive leaks. It's a matter of not tolerating shitty journalism and irresponsible editing. And the day you yoked your fate to Judy Miller's, you endorsed all that shitty journalism and irresponsible editing. Certainly, the day you write a 7800-word article that willfully hides the fact that Scooter Libby intended to launder a deliberate leak of Plame's identity through Judy Miller and the NYT, you lose your right to lecture us about reporters privilege and the public's interests in leaks.

Clean up your own house, first, before you start telling us about what is or is not in our best interest.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.