03/05/2007 07:49 pm ET Updated May 25, 2011

Patrick Fitzgerald Gets Maligned on PBS by One of the "Good Guys"

You know things are bad when Patrick Fitzgerald gets smeared in a PBS documentary produced and reported by a journalism professor. Frontline"s "News War," an otherwise excellent program reported by Lowell Bergman, Professor at the UC Berkeley Graduate School of Journalism, made four false and misleading claims about the law and about Judith Miller's case. Together, they leave the impression that Patrick Fitzgerald abused his power while Judy Miller acted out of principle. The opposite is true.

Falsehood No. 1: U.S. Attorney Guidelines preclude media subpoenas except for mattes of grave national security.

Narrator: Though there's never been a federal law establishing a reporter's privilege, the Justice Department uses a set of guidelines in its decision to subpoena journalists.
Mark Corallo: The guidelines are very clear. A media subpoena should only be sought when all other avenues of investigation have been foreclosed, and only in exigent circumstances. And exigent circumstances were explained to me to be grave national security matters.
Lowell Bergman: Emergencies.
Mark Corallo: Yeah, emergencies.
Mark Corallo Life and death.
Mark Corallo Life and death.
Narrator: Mark Corallo was working in Attorney General John Ashcroft's Justice Department when the Plame investigation began.

Mark Corallo is wrong. Nowhere in any Justice Department guidelines or regulations is there a suggestion that media subpoenas should be issued only in matters of grave national security. Instead, the guidelines merely follow the same general standards used for a qualified reporter's privilege, recognized by most States and many Federal Courts. The privilege is qualified, which means that it can be overcome if a judge is convinced that the prosecutor exhausted all other means of obtaining the requested information, which is critical to determination of the case.

Corello can't say that the guidelines are "very clear" and in the same breath give an absurd definition of "exigent circumstances" as it applies to subpoenas. "Exigent" or "exigent circumstances" means that something requires immediate action. The concept is generally used to justify a warrentless entry or seizure of evidence that might otherwise get away. In the context of a subpoena, "exigent circumstances" means that the subpoena must be served before a witness takes steps to avoid service of process. Nobody's life or death hangs on service of a subpoena, since, as Miller demonstrated, a subpoena can be litigated for months.

The regulations reference "exigent circumstances" twice. First, a media subpoena should, except under exigent circumstances, be limited to the "verification of published information." I don't know if "published information" in this context includes Grand Jury testimony, which is what Fitzgerald sought to authenticate, but to me he seems to be acting within the spirit of the regulation.

Second, a prosecutor's subpoena can bypass the normal requirement of prior approval by the Attorney General, if the AG is not available to review the request, and if there are "exigent circumstances", i.e. when time is of the essence. In other words, the "exigent circumstances" test applies only to the timing of the subpoena, not to the appropriateness of the subpoena. But in Miller's case, the Attorney General had already delegated such authority to Fitzgerald, so no pre-clearance was ever necessary.

Falsehood No. 2: Unlike Attorney General John Ashcroft, Fitzgerald did not follow Justice Department Guidelines

Narrator:Though Ashcroft was never asked to subpoena any reporters in the case, Corallo says it's unlikely that he would have. He says he never saw Ashcroft approve a subpoena of a reporter for confidential sources in the time he worked there.
Mark Corallo: We were committed to not issuing one of these subpoenas.
Lowell Bergman: For the liberals out there watching- Attorney General Ashcroft always said no?
Mark Corallo Attorney General Ashcroft always said no.
Mark Corallo: "Do not subpoena the journalists."
Mark Corallo: Correct.
Narrator:But in the Plame case, Patrick Fitzgerald was determined to get reporters to cooperate.

Corello is more than a little deceitful. John Ashcroft's Justice Department issued several subpoenas to force writers to reveal confidential sources. And none of those subpoenas touched on cases of national security. Months before 9/11, Vanessa Leggett was secretly jailed, after a hearing that was closed to the public, and neither the transcript nor the judge's name were released. Ms. Leggett's lawyer claims the government threatened him against talking about the details of the case. Ms. Leggett's offense? She was held in contempt of court for refusing to hand over notes, tape recordings and other research for her book on the 1997 killing of Doris Angleton, the wife of a millionaire Houston bookie.

In August 2004, U.S. Attorney Mary Jo White subpoenaed the records of all phone calls at the home AP reporter John Solomon, who had written about a Federal investigation concerning former Senator Robert Torricelli.

"We were committed to not issuing one of these subpoenas,"?

As for Patrick Fitzgerald, Judge David Sentelle wrote in his appellate opinion, "The District Court expressed its doubt that the DOJ guidelines were enforceable, but found that even if they were, Special Counsel had fully complied with the guidelines."

Falsehood No. 3: The Appeals Court that ruled against Miller and Cooper found that there is no reporter's privilege. Period

Narrator: U.S. Court of Appeal in re: Grand Jury Subpoena, Judith Miller, February 15, 2005: "The District Court held that neither the 1st Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation."
Floyd Abrams: That's what they said - there's no ambiguity at all - that there is no protection, the Court of Appeals in Washington said, for journalists in- in situations in which a grand jury seeks information in good faith from a journalist. Period.

False. The Court decision actually states, among other things, "[I]f any such common law privilege [for reporters] exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court."

That's right. Even if a common law privilege existed, Judith Miller was not entitled to use it.

In fact, each of the three judges sitting on the D.C. Circuit Court of Appeal wrote a different concurring opinion about a common law reporter's privilege. Judge David Sentelle ruled that there was no reporter's privilege under common law. Judge Raymond Henderson ruled there was no need to rule on the existence of a privilege, since Judith Miller could not assert it. Judge David Tatel ruled that a common law privilege did exist, but Judith Miller was not entitled to assert it.

In other words, a two-judge majority at least left the door open to the idea of a common law privilege.

Falsehood No. 4: Judith Miller, and her lawyer Floyd Abrams, acted out of principle in filing their appeals.

Judith Miller: We can't begin to say, "I'm only going to issue pledges of confidentiality when politically I agree with the source, or I think the source isn't- isn't politically motivated." I mean, almost all leaks of information are politically motivated.
Floyd Abrams, First Amendment Lawyer: The law can't and shouldn't distinguish, and I would say journalists can't and shouldn't distinguish between what, good sources and bad?
Narrator: Longtime 1st Amendment lawyer Floyd Abrams was retained by The New York Times to represent Miller.
Floyd Abrams: If we're going to have a political litmus test, then we're not talking about principle at all. Then we're just talking about, you know, is this a good way to get the Bush administration, or is this a good way to- to Narrator:The principle was protecting your source no matter what. Cooper and Miller said they were prepared to go to jail rather than testify.

If Floyd Abrams ever told The New York Times that the appeal before the Supreme Court was a "matter of principle," the Times should sue for malpractice. His petition was frivolous and his argument is bogus. Here's why. If a lower court rules against you for a reason, your petition for appeal must address that specific reason. Otherwise, it's irrelevant and dead on arrival. (For more, see "Judith Miller's Eight Bogus Arguments".)

The lower court ruled: "[I]f any such common law privilege [for reporters] exists, it is not absolute, and in this case has been overcome." Yet Abrams' petition never addressed whether a common law privilege is qualified or absolute, nor did he address the issue of whether a qualified privilege had been overcome by Fitzgerald.

Here's how Abrams framed the issue in his petition before the Supreme Court:

"Should a common law privilege be recognized under Federal Rules of Evidence 501 to provide any protection for journalists who are subpoenaed in federal criminal proceedings to reveal the identity of their confidential sources?" [underlining added]

That's not a good faith argument to overturn precedent based on any principle of free speech, because it disregards the facts before the Court. Abrams was stalling, and nothing else.

Abrams is no fool. He knew there was no Federal precedent anywhere for a reporter's privilege that was absolute. He and Judy Miller made The New York Times spend millions for the sole purpose of enabling Judy Miller to delay her day of reckoning. [Matt Cooper piggybacked onto Miller's appeals, but since he had testified before Fitzgerald prior to Miller's subpoena, he seemed an unlikely candidate to "stand on principle" by himself.]

Had Miller and Abrams declined to pursue their dilatory appeals, Patrick Fitzgerald could have issued his indictments a year earlier, probably before the November 2004 election. The indirect benefits to Scooter Libby and to The White House have been immeasurable.