Do You Have A Novak Exception?
Jane and I caught a fantastic Charlie Rose show last night, a replay of a discussion between First Amendment Badass Lawyer Floyd Abrams, NYT reporter/harlot Judith Miller, the Washington Post’s Richard Cohen, and Dorsey & Whitney partner and former prosecutor Zachary Carter.
The discussion was about the recent actions of courts, judges and prosecutors to threaten reporters with jail time for not revealing their sources, with an emphasis on Robert Novak’s role in the Valerie Plame/Joe Wilson Affair. Also, Judith Miller is facing jail time due to a judge’s demand that she reveal her sources.
I’ll admit that my view of this case was blinded by my complete contempt for Novak and the people for whom he was fronting, most likely higher-ups in the Bush Administration (Dick Cheney, Karl Rove) and their lackeys (Lewis Libby). Before the election, I was less concerned with the fundamental role of the press than I was with finding and punishing those who used the press to dole out political retribution for people who made them look bad.
Now of clearer mind, I have changed my view of whether Novak (or any other reporter) should be threatened with jail time in order to compel them to reveal their sources. Generally speaking, the press simply can’t perform their role if they can’t get people to talk to them. If sources didn’t believe reporters were going to protect them, they wouldn’t talk. It’s that simple. The end product of that system is to transform the American media into something resembling TASS in the old Soviet Union. And we see how well the Soviet Union was served by people not having insight into their government’s workings.
But the Novak case is different in one important respect: The Leaker (arguably) broke the law. And quite likely, there are only two people who can help law enforcement bring justice to the law-breaker: the Leaker and the reporter. Presumably, the Leaker won’t be calling up the Department of Justice and volunteering themselves for questioning, leaving the reporter as the only avenue to justice.
Zachary Carter argued that if reporters aren’t compelled to offer their sources in instances where the Leaker was breaking the law, then that is tantamount to giving leakers carte blanche to break the law. Carter, of course, is a former prosecutor, which may explain his take on the matter. But it’s still a valid consideration, in my mind. Most leakers are spilling beans about the organization for which they work. Some have good motives, some bad. Some leaks don’t have substance, but some do, and those that do often reveal important information that otherwise would never have been known. But the important point is that most often, the act of providing the leak is not in and of itself against the law, unlike what is purported to have happened with Novak’s leak.
I tried to think of another situation where a leaker would, by definition, be breaking the law by leaking. I’m sure there are examples out there, perhaps related to the release of confidential or classified information. If Novak is compelled to reveal his source to aid in prosecution of his particular illegal Leaker, will that chill future leakers from coming forward, leakers who may be leaking for a reason more honorable than political revenge?
It seems to me that it would. Beyond that, it seems to me that it’s just a very bad precedent to set, sending reporters to jail. Reporters don’t want to go to jail, no matter how principled. Some would, surely, but eventually the role of the investigative or watchdog press will crumble if the promise of source confidentiality isn’t widely acknowledged.
I’d love to see Novak and the people who pushed the story to him serve time, but that seems far less important when balanced against the role of the press, especially today.
Does that allow some leakers to pursue agendas through their willing media flunkies without any accountability? Yes, it does, but there’s nothing new there. That’s been going on for years, and will continue. The remedy is editorial restraint on the part of the media, in taking care to publish responsibly. Every day, news organization in this country get access to stories, facts, leaks and other information that they could run with if they chose to. Often they choose not to, because doing so jeopardizes their integrity and puts the institution of journalism at peril.
Novak chose to ignore that institution to act as a mouthpiece for people pursuing an agenda, and that is a far greater crime than any perpetrated by the Leaker. Despite that, I don’t think you can make an exception in the way we value source confidentiality for Bob Novak, and allow him to be compelled to reveal his sources.
Novak should be protected from prosecution, but soundly ridiculed and condemned by everyone in his profession. Better to condemn Bob Novak rather than the press as a whole.
7:05:01 PM 
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