The Corner

Re: Fitznifong

A bunch of readers can’t get past the firewall. They clamor for a fair-use except. Here you go:

Dow Jones, which owns this newspaper, and the AP are also requesting that the court now release all of the redacted parts of Judge David Tatel’s 2005 concurring opinion in the D.C. Circuit ruling that compelled the reporters to testify. Responding to an earlier DJ-AP motion, the court released part of the redacted eight pages in early 2006. But it held back the rest, as well as Mr. Fitzgerald’s affidavits in the case, because the prosecutor insisted his investigation was continuing.

That was a stretch even then, but it’s certainly no longer true. Mr. Fitzgerald months ago told the lawyer for Karl Rove that the senior White House aide will not be indicted. And more to the point of Mr. Fitzgerald’s wild newspaper source chase, we learned last summer that neither Mr. Libby nor Mr. Rove was the original source of the leak of CIA analyst Valerie Plame’s name to columnist Robert Novak. As the Dow Jones-AP motion points out, “The public now knows that the Special Counsel [Mr. Fitzgerald] knew the identity of that leaker — Richard Armitage, the former Deputy Secretary of State — from the very beginning of his investigation.”

Finding the leaker was Mr. Fitzgerald’s main charge from the Justice Department, so why did he keep pursuing reporters with such hyper-zeal for another two years? His pursuit led to a constitutional showdown over the media’s right to protect sources, going all the way to the Supreme Court. And the precedent — a bad one for the press — may well encourage a wave of attempts by prosecutors across the country to force journalists to betray their sources. The press and public both have a right to know what evidence was so compelling that Judge Tatel and Mr. Fitzgerald thought it warranted such a legal collision. All the more so now that Congress is also debating a “shield” law to protect media sources.

A wiser prosecutor than Mr. Fitzgerald would have ended his probe the minute he discovered that Mr. Armitage was the leaker. Instead, he told Mr. Armitage to keep quiet and let the public believe for two years that someone high up in the White House might have leaked for nefarious political purposes. In the end, Mr. Fitzgerald’s case has been distilled to a perjury charge that, while serious as a matter of law, appears to come down to different memories about conversations Mr. Libby had with three journalists. (And, as we all know, journalists never get anything wrong.)

Whether or not Mr. Fitzgerald ever discloses a motive for a seasoned lawyer like Mr. Libby to have lied, the unsealing of the affidavits and Judge Tatel’s redacted pages will help us better understand the prosecutor’s motives for his troubling zeal.

Jonah Goldberg, a senior editor of National Review and the author of Suicide of the West, holds the Asness Chair in Applied Liberty at the American Enterprise Institute.

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