Peter: Arguably, there would be a reporters’ privilege under the First Amendment, but there isn’t and the Supremes have held just that in the proceedings regarding the Fitzgerald investigation. I don’t agree that there’s only one problem. There are two. One is a reporter’s privilege that could be clearly drawn to protect private conversations with sources but not the disclosure of classified information such as troop positions, etc.
You do raise the other good point from the Olson piece. There is no longer any excuse for unlimited, persecutorial discretion (and I use the term advisedly). Fitzgerald should have been required to report findings of whether there was a crime committed in the leak of Plame’s name. Given its absence, he should also have been required to end his investigation.
Special prosecutors such as Fitzgerald (who may yet prove to be another Walsh, but so far has not been) are unlimited in their discretion because of what happened to Archibald Cox. By firing him, Nixon created the problem. The remaining problem is not in the Executive Branch. Congress — if it weren’t seeking pork and headlines as its primary goals — could conduct in-depth investigations such as Fitzgerald’s itself. If the Executive Branch can’t be trusted (which, perforce, it cannot when Democrats are in power), the Congress can stand up on its hind legs and do for the Executive what Norm Coleman is doing for the UN. But they have neither the patience nor the intestinal fortitude to do so. We should end the era of special prosecutors, and get Congress to do its job.
I know, I know. Faint hope.