For being swept away by Alitophoria yesterday and missing a very important piece in the Monday Wall Street Journal by former solicitor general Ted Olson. (Subscription req’d). Olson, looking at the Fitzgerald indictment of Scooter Libby, comes to the compelling conclusion no one else has articulated: that the indictment may reduce press access to government officials — in all those “on background” confidential conversations — that actually benefit the public by getting out information that the public should know, and may never otherwise. Money quotes:
“As chief of staff to the vice president, Mr. Libby participated in countless meetings and phone conversations every day, seven days a week. Talking to reporters, mostly on background, is a big part of life in these jobs. At this level, important events occur daily, one after the other. The same can be said about journalists in Washington. So many phone calls every day — some on record, some off. It is impossible to remember the details of who said what during which conversation on what day — even a week, much less years, later. So if Mr. Libby’s memory is wrong about what he said to or learned from reporters in June/July 2003, or if reporters do not recall accurately, or if phone conversations are juxtaposed, that is natural, not sinister.”
I can — having sat on both sides of that equation — testify to that truth. The impact? According to Olson:
“Even more compelling is what the Fitzgerald charges will portend for public discourse on political subjects. Officials and journalists have thousands of conversations a day about controversial matters. That is how we learn what is going on. As the Supreme Court has explained, the Constitution intends that such speech be uninhibited, even vehement and caustic. Must officials now fear that they may be prosecuted if they do not accurately recall conversations years later? And that the journalists they talk to will be witnesses for the prosecution? Should journalists caution sources that if their memories of fleeting conversations are less than fully consistent, those memories will be fodder for prosecutors years later?”
One of the greatest strengths of our democracy is its openness. If Libby committed the crimes he is charged with, he should be punished. But a clear and limited federal privilege law protecting reporters and sources is now a must. Or we risk giving up the openness of government that is one of the foundation stones of our freedom.
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