Libby Trial: Politics Central, Facts Secondary

I’m live in the media room at the Prettyman Federal Courthouse awaiting the resumption of voir dire in the Scooter Libby trial.

AP’s Michael Sniffen reports that the jury selection should end today, although the problems that have plagued it remain.

Libby’s lawyers, Theodore Wells and William Jeffress, have labored to keep opponents of the Iraq war and the administration off the jury. Libby, a former aide to President Bush and Vice President Dick Cheney’s former chief of staff, is the highest-ranking member of the current Republican administration to face criminal charges. The potential jurors are drawn from a city where registered Democrats outnumber Republicans by more than 9-to-1.

Defense lawyers asked every juror whether the administration lied about intelligence to push the nation into war in Iraq and whether administration officials are believable, particularly Cheney. He is to be a defense witness. Special Prosecutor Patrick Fitzgerald objected repeatedly during the first three days that Wells and Jeffress were portraying this as a trial about politics and the war. Fitzgerald argued that “the jury will not be asked to render a verdict on the war or what they think of the war.” Defense questions were so political that one juror even volunteered that she had voted for Bush, Fitzgerald complained to the judge.

Unfortunately, this trial is inextricably linked to the most controversial political issues of our time. Libby’s attorneys are rightly concerned about that, given the political tenor of the town. Fitzgerald, too, has an interest in ensuring the jury isn’t packed with rabid Bush supporters. Given the pool, though, Wells and Jeffress have the odds stacked against them.

Neil Lewis of the NYT says the relationship between the press and its sources is at stake, too.

[A] handful of reporters for major news organizations will testify for the prosecution. They will be asked to recount conversations they had in 2003 with Mr. Libby, then Vice President Dick Cheney’s chief of staff, that were undertaken with some understanding that they were confidential.

The highly unusual spectacle of journalists giving testimony at a criminal trial about their reporting is a result of the intense investigation into the disclosure of the identity of a Central Intelligence Agency operative. Previous leak investigations typically ended in failure as reporters were able to fend off prosecutors’ efforts to delve into what they learned from government sources. But in trying to determine how Valerie Wilson, who was known by her maiden name, Valerie Plame, came to be identified as a C.I.A. operative in a newspaper column in July 2003, the prosecutor, Patrick J. Fitzgerald, successfully pressed reporters to testify before a grand jury, threatening jail if they refused. In the case of one, Judith Miller, formerly of The New York Times, Mr. Fitzgerald, with the backing of the courts, succeeded in having her jailed for 85 days until she relented.

Rodney A. Smolla, the dean of the University of Richmond Law School and an authority on the First Amendment, said the Libby investigation had made clear that any promise of confidentiality from a reporter now comes with an asterisk. “This has undercut the assumptions that existed for several decades that a reporter’s promise of confidentiality is not only sacrosanct as a matter of journalistic ethics but relatively secure as a matter of law,” Dr. Smolla said. “Now it’s clear that the legal system will try to break that promise, and the sources and reporter appear much more vulnerable, at least in the federal system, than was thought to be just a short time ago.”

Prosecutors and the courts should certainly make every reasonable effort to avoid compromising reporter-source confidentiality. In cases where the issue is illegal leaks of classified information to the press, however, the press is obviously going to have to testify. Reporters have an important role in our society and should be protected; they are, however, members of society first.

FILED UNDER: General, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.