Leaks and the Law

The Atlantic Magazine, December 2004

Who is Patrick J. Fitzgerald, and why is the press so upset with him?

Patrick J. Fitzgerald is the United States attorney for the Northern District of Illinois, based in Chicago. He was widely regarded as an excellent prosecutor and a fine man. Late last year, however, Deputy Attorney General James B. Comey Jr. asked Fitzgerald to take on the role of special counsel in investigating the leak to the columnist Robert Novak of Valerie Plame’s status as an undercover CIA operative. Plame, you’ll recall, is the wife of the former ambassador Joseph Wilson IV, who riled the Bush Administration by publicly taking issue, after investigating the matter for the CIA, with the President’s claims about Iraqi attempts to buy uranium in Niger. Knowingly leaking an operative’s identity can be a crime, and Fitzgerald has taken his investigation seriously—far too seriously, from the press’s point of view. In the course of trying to solve the whodunit, Fitzgerald has committed the biggest no-no in any prosecutor’s relationship with the media: he has subpoenaed reporters to testify before a grand jury about their sources.

As of this writing Fitzgerald has obtained testimony from Tim Russert, of NBC; Matthew Cooper, of Time; and Glenn Kessler and Walter Pincus, of The Washington Post, about their conversations with Vice President Dick Cheney’s chief of staff, I. Lewis Libby—who has waived confidentiality and who, all reportedly said, did not disclose Plame’s identity. In addition, Pincus, after resisting the subpoena, testified concerning his conversation with a still unidentified source, after that source talked to prosecutors about the conversation and informed Pincus through counsel that he had no problem with Pincus’s doing so as well. Fitzgerald is currently after Judith Miller, of The New York Times—who investigated the matter but never actually wrote about it—and has issued a second subpoena to Cooper. Novak has not said whether he has received a subpoena.

Now William Safire has called Fitzgerald a “runaway prosecutor” who is “after the press with a vengeance and a blunderbuss.” The New York Times headlined its editorial about the Plame investigation “A Leak Probe Gone Awry.” The Wall Street Journal, upset about the whole business from the beginning, complained back in July that “the entire leak probe now looks like a familiar Beltway case of criminalizing political differences,” and urged Fitzgerald to “fold up his tent.”

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