Dow Jones and the Associated Press have requested the release of the affidavits Patrick Fitzgerald filed with the D.C. Circuit Court of Appeals arguing that reporters be compelled to testify about their conversations with Scooter Libby or face jail time. Judith Miller spend 85 days in jail before she finally testified. Fitzgerald is fighting the release.
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.
Comments