The False First Amendment of the Dow Jones and AP
Back when Dow Jones and the AP renewed their bid to unseal the materials relating to Judy’s and Cooper’s subpoenas, they asserted–apparently based on self-serving public comments by Novak, Rove, and Armitage and on Victoria Toensing’s self-declared omniscience in all things Plame–that Fitzgerald’s pursuit of the journalists’ testimony was unnecessary.
Recently, the public learned that the Special Counsel’s pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame’s name to Robert Novak, the columnist who had first published it.Â The public now knows that the Special Counsel knew the identity of that leaker — Richard Armitage, the former Deputy Secretary of State — from the very beginning of his investigation. [my emphasis]
Their bid to unseal these materials went on in highfalutin’ language about the public’s right to know, the importance of explaining to the public why Fitzgerald thought he needed Miller’s and Cooper’s testimony.
Unsealing the redacted portions of Jude Tatel’s opinion and the Special Counsel’s affidavits will enable the public to scrutinize the basis for this Court’s ruling that any common law reporter’s privilege was overcome.Â Furthermore, it will help the public understand the basis for the appointment of the Special Counsel and the Special Counsel’s determination and argument that, notwithstanding Mr. Armitage’s revelation in October 2003, he viewed it necessary to compel testimony from Ms. Miller and Mr. Cooper — and force the imprisonment of Ms. Miller — to fulfill his investigatory mandate.
Now, you’d think, what with all that language about the importance of helping the public to scrutinize the Court’s decisions and to understand Fitzgerald’s thinking, that’d be what Dow Jones and the AP would focus on when enough of those documents were unsealed to answer their questions, right? You’d think that, given that the affidavits clearly explained that Fitzgerald was still considering charges against Armitage in connection with the Novak leak–and that stories of Rove, Libby, and Armitage were all tied together in a knot of half truths–the news organizations would waste no time in either making those affidavits available to the public they care so much about, or at least reporting on those questions they claimed were so important and pressing that they should overcome grand jury rules. You’d think that, at the very least, those news organizations would rush out and admit they were wrong when they accused Fitzgerald of subpoenaing journalists for no reason.
But that’s not what happened.