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Welcome to the hall of jagged mirrors, where society’s main truth-seeking institutions turn on each other. Prosecutors and defense lawyers slash at journalism’s sources and methods, while reporter-witnesses, virtually live from the grand jury room, wreak havoc on the criminal justice system. All brought to you courtesy of the upcoming I. Lewis “Scooter” Libby trial and the ongoing Valerie Plame leak investigation. As someone who has witnessed firsthand how both journalism and criminal justice work, I worry about the long-term impact of this battle. As a former reporter, I’ve seen firsthand the necessity of off-the-record sources in developing important stories. As a former federal prosecutor, I appreciate the vital need to search out reliable information that may bolster potential criminal charges. For both reporters and prosecutors, success hinges upon their ability to determine the whole truth. Now that the prosecution has moved beyond investigation in the Plame matter, at least as to Libby, the clash between the courtroom and the newsroom in that case only promises to escalate. Joining the battle is yet another fighting force — the Libby defense team, whose reverence for First Amendment values is likely to be far less than that shown by the prosecution. Indeed, from the defense’s vantage point, the reluctance of reporters to discuss their sources is simply an opportunity to shake up the prosecution’s case by pitting the government against the Fourth Estate. All sides will be bloodied, whoever wins that battle. LIVE FROM THE GRAND JURY In the Plame investigation, reporters have struck the latest blow, turning the notion of grand jury secrecy on its head with you-are-there reportage. Prosecutors are prohibited by explicit federal rule from disclosing what goes on inside the grand jury room. Witnesses are not similarly bound. But prosecutors typically urge them to refrain from disclosing their testimony, and witnesses frequently keep quiet about what they were asked and what they said.
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Not in this case. Not only have journalists in the Plame investigation chosen to talk about their grand jury experiences, but they have published accounts of their testimony in national news media. Viveca Novak of Time most recently joined her colleague Matthew Cooper and former New York Times reporter Judith Miller in going public. This investigation-by-expos� approach spells trouble for the prosecution. Extra-judicial statements made by reporter-witnesses can be used later by defense lawyers as fodder for cross-examination at trial. Reporter-witnesses’ loose lips could also expose others involved in the investigation to the type of premature public scrutiny that the grand jury process is supposed to prevent. At least in theory, unless someone is charged with a crime, most of the details of the government’s investigation are supposed to remain secret. While in this instance the collateral damage to third parties may be minimal — given the extraordinary level of publicity separate from the grand jury “leaks” — it is not hard to envision another type of investigation in which leaks by witnesses could cause serious damage to the reputation of innocent (or, at least, never proven guilty) people. YOU WILL TALK Certainly, building a criminal case largely on the relationships between journalists and their sources was fraught with pitfalls from the start. In 1972, the Supreme Court in Branzburg v. Hayes held that reporters, like all other citizens, have a duty when brought before a grand jury to disclose any information relevant to an ongoing criminal investigation. But reporters have nonetheless resisted discussing their sources. And in practice, prosecutors have not been unsympathetic, generally seeking to avoid First Amendment confrontations by gathering evidence from all other available sources before, as a last resort, issuing subpoenas to reporters. In the Plame case, however, the conflict was unavoidable.

• A Pardon for Libby? (December 19, 2005)• Libby’s List: Scooter Adds to His Defense Team (December 12, 2005)• Bringing the Hammer (November 7, 2005)• After Charges, Fitzgerald Team Presses On (October 31, 2005)• Fitzgerald’s Arsenal: An Indictment Primer (October 24, 2005)

Only after protracted negotiations — and in the case of Miller, 85 days in jail — did journalists provide information to special prosecutor Patrick Fitzgerald. Then Bob Woodward of The Washington Post belatedly revealed that he, too, had learned of Plame’s CIA connection, perhaps even before Libby allegedly tipped off other reporters. Woodward’s revelation highlights the difficulty inherent in a prosecution that turns on nailing down the exact timing and source of leaked information inside the Beltway. The reluctance of Washington reporters to cooperate is explained not just by respect for the First Amendment, but by the need to protect their livelihood, which relies on leaks. Just as evidence is the building block for prosecutors, information is the lifeblood for journalists. The difference is that prosecutors can generally control the decision to disclose the identities of their informants if the interests of justice so demand. Journalists cannot make the same promise to confidential sources. The judgment of when the interests of justice trump the interests of the free press is ultimately not the reporters’ to make. At this point in the Plame case, the real question is whether the forced disclosure of sources and information will have any long-term impact on journalists’ ability to gather information for important stories in the future. Certainly, a reporter’s promise of confidentiality seems less secure, and sources who may be putting their jobs at risk might think twice before talking. ENTER THE DEFENSE Many journalists thought and said and wrote that Fitzgerald’s grand jury was trouble. Wait until they see the trial. The charges of perjury, false statements, and obstruction against Libby are based almost entirely on the testimony of journalists. And while Fitzgerald has tried to dance gingerly around the First Amendment issues, Libby’s defense team has clearly signaled a take-no-prisoners approach. Already, Libby’s attorneys, including prominent criminal defense attorney Ted Wells, have made clear that a key issue will be whether journalists will be compelled to testify at trial. To the extent that Fitzgerald tried to minimize intrusions into the reporter-source relationship, Libby’s lawyers now have every reason to exploit it. Expect them to go after not only conversations that reporters had with Libby, but conversations those reporters had with other sources and with other reporters. The fact is that whatever uneasy alliance may have been struck between the prosecutors and the press in the interests of long-term justice for all, Libby’s lawyers are under no obligation to honor it. Their mission is to point out the weaknesses in the prosecution’s case and, if necessary, present a defense. If either goal can be accomplished by running roughshod over the relationship between reporters and their sources, count on the defense to do so. TRUTH AND CIRCUSES And don’t count on the press to hold back either. Despite Fitzgerald’s best efforts, any trial may end up looking something like the Department of Justice equivalent to reality TV. Will we see real-time media accounts from the reporter-witnesses fresh off the witness stand? Can we expect commentary from the reporter-witnesses as to whose recollection is more accurate? Will they evaluate their own cross-examination the next day? Who knows. This probably will not seriously jeopardize the government’s case. But it does run the risk of creating a circus-like atmosphere — even worse than the circus-like atmosphere surrounding other high-profile cases — as two trials play out simultaneously, one inside the courtroom and one on the courtroom steps. The underlying problem is that prosecutors and reporters each have an important societal mission in searching for the truth, but they accomplish that end in different and potentially conflicting ways. Prosecutors can compel testimony through the issuance of grand jury and trial subpoenas, within limits set by the Constitution and judicial rulings. In contrast, journalists must rely on other means to coax people to talk. The relationships between reporters and their sources are more symbiotic, especially in Washington, where sources frequently have their own agendas. The contracts defining these journalistic transactions have always been implied, but often involve a pledge of confidentiality in exchange for accurate information. Fortunately, head-on collisions between the prosecutor’s pursuit of truth and the reporter’s pursuit of truth have been rare because both sides have made efforts to skirt confrontation. But defense lawyers only choose to skirt confrontation if it advances the interests of their client. Good defense lawyers — and Libby’s lawyers are very good — exploit tension between the government and its witnesses. The rest of us can only sit back and watch how journalism survives its close encounter with the justice system.

Robert A. Mintz, who has been both a reporter and a federal prosecutor, heads the securities litigation and white-collar criminal defense practice at McCarter & English, based in the Newark, N.J., office.

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