Fitzgerald's Cover-Up: It's time to hold the special prosecutor accountable: Editorial, WSJ | April 4, 2007 at 05:48 pm | 116 views | add comment

Special Prosecutor Patrick Fitzgerald...

An expressionless Fitzgerald (third from left)...
by war on terrr
updated 84 wks ago | 291 viewsIt's time to hold the special prosecutor accountable.

Wednesday, April 4, 2007 12:01 a.m. EDT

For a prosecutor who claims to be a truth-seeker, Patrick Fitzgerald sure can be secretive. Even now that the Scooter Libby trial is over and his "leak" investigation is all but closed, the unaccountable special counsel wants to keep his arguments for creating a Constitutional showdown over reporters and their sources under lock and key.

Mr. Fitzgerald is fighting release of the affidavits he filed with the D.C. Circuit Court of Appeals to justify compelling two reporters to testify about their conversations with Mr. Libby, and to throw one of them in jail for 85 days until she did so. Also under court seal are eight pages of a redacted 2005 D.C. Circuit opinion by Judge David Tatel that explained the court's decision to support Mr. Fitzgerald's pursuit of the reporters.

In January, Dow Jones--which publishes this newspaper--and the Associated Press requested that the D.C. Circuit release this material now that the case is wrapped up. By demanding that the reporters betray their sources, Mr. Fitzgerald caused a legal collision that went all the way to the Supreme Court. The public, the press and other prosecutors all have what the Dow Jones-AP motion calls "an undeniable and overwhelming public interest" in knowing the arguments and information that Mr. Fitzgerald made to the court.

His demand and the D.C. Circuit ruling set a precedent that may well encourage other prosecutors to force journalists to betray their sources too. His effort also appeared, at least to us, to violate long-standing Justice Department guidelines concerning such pursuit of journalists. His pursuit is all the more puzzling in retrospect because we now know that Mr. Fitzgerald already knew--at the time he was demanding that the reporters betray their sources--that the real leaker was Richard Armitage, not Mr. Libby.

The two reporters he subpoenaed and their lawyers did not know this at the time, however, and if they had it might have changed their arguments or decisions. At a minimum, prosecutors and reporters deserve to know what evidence the D.C. Circuit found so compelling so we can all avoid such future collisions. Congress also has an interest now that it is contemplating a "shield law" to protect media sources.


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