Novak says he isn't talking "on advice of counsel," and our hat is off to him for following that advice, fundamental to any adversarial legal proceeding. On Advice of Counsel: The Media vs. Robert Novak

On New Year’s Eve, the lead national section article of The New York Times was about a fellow journalist: Robert Novak, the veteran newspaper columnist and television commentator.

Specifically, the story focused on Novak’s silence in the aftermath of his naming Valerie Plame as the CIA officer who recommended that her husband, former Ambassador Joseph C. Wilson IV, be sent to Niger to investigate an alleged sale of nuclear bomb-making stuff to Iraq. Big flap, Novak’s story caused, still Energizer Bunnying along.

People genetically predisposed toward shock and dismay before their first morning latte were shocked at the outing of a CIA operative by Novak. They were shocked at the leak by anonymous "administration officials." They were shocked that the President could possibly give credence to allegations made by British intelligence that Wilson’s foray had "disproved."

Wilson, who had savaged the administration in a Times op-ed, became a hero of the Left. Plame, who can undoubtedly field strip weapons you can’t have, was first portrayed as a victim of secret identity disclosure, then posed as a Bondian beauty for a photo shoot in Vanity Fair.

Nasties flowed like dragon’s breath. Then the story went serious. Because it is a crime to knowingly reveal the identity of a covert CIA operative, an investigation of the leakers ensued, under the jurisdiction of Patrick J. Fitzgerald, a U.S. Attorney acting as an independent prosecutor.

In looking for the leakers, Fitzgerald started subpoenaing journalists to reveal their confidential sources, one of those big no-no’s of the reporting business. Thus Fitzgerald’s investigation got crosswise with Matthew Cooper of Time magazine and Judith Miller of The New York Times, both of whom had been told some stuff, although neither broke the story and Miller didn’t write about it at all. That has devolved into a First Amendment shootout, now winding its way through the courts, that may end with the jailing of Cooper and Miller for contempt.

But what of Novak? He broke the story, yet there is nary a word spoken about whether he has been subpoenaed, appeared before the grand jury, testified, refused to testify, etc. Prosecutor don’t say; Novak won’t say. Big mystery, inviting much speculation and more carping.

Carping about Novak was the only news, if it can be called that, in the aforementioned Times story. Here’s the crux of it: "A growing number of media ethics specialists, lawyers and journalists are criticizing Mr. Novak as failing as a journalist by not outlining for the public his dealings with the investigation." Whining and mewling and backbiting follow, voiced by various and sundry representatives of the referenced disciplines. Novak’s part of the story, but he won’t talk. Novak started this mess and doesn’t even express sympathy for Cooper and Miller. Novak this, Novak that.

Novak says he isn’t talking "on advice of counsel," and our hat is off to him for following that advice, fundamental to any adversarial legal proceeding. His silence may indeed raise some ironies of journalism, but not of law. Anything he says to anyone other than his attorney could reduce or eliminate the protections that he is entitled to under the law. He’s doing the right thing, doing it perfectly, and anyone who doesn’t like that should just shut up.

While Fitzgerald’s investigation was undoubtedly necessary in the current climate of Washington, it is exceptionally unlikely to produce successful prosecutions of the leakers, for numerous reasons, not the least of which would be proving that the leakers actually "knew" that Plame was a protected agent, if, in fact, she was, sufficient to the language of the law.

Despite the motives of the leakers, public knowledge that Wilson’s wife was largely responsible for his mission to Niger did add significant perspective to politicized activity at the spy agency that is seemingly now getting the house cleaning by Director Porter Goss that it so desperately needs.

The tension between government and journalism will never go away, and it shouldn’t. Neither has the corner on goodness or right or truth or competence or even adult conduct, and anybody who believes otherwise shouldn’t be employed by either.

Likewise, there is tension within our Constitution between the requirement that all citizens testify to knowledge of crimes and the required protections of a free press. Those tensions may also never go away, but bright line resolution is urgently required. We believe that journalists do and should have some privilege to resist the excesses of prosecutors. They must have the right not to be seconded into agentry for the government, and the confidentiality of sources is fundamental to that right.

The Center has filed a brief in support of Cooper and Miller that outlines our constitutional position. We will do so on behalf of Novak, as well as others, if that is required. The resolution may not be as desired. If it is not, then jail time for journalists may well be a routine qualification for the job … for those who recognize their awesome responsibility to accurately and courageously inform the rest of us, regardless of consequence.

January 6, 2005
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