Tim Russert Claims First Amendment Protection for Cocktail Weenies

by emptywheel

I'm going to rehash some old ground with this post (and then I'm going to promptly copy most of the post into my next installment of the Anatomy of a White House Smear). But we talked a lot about cocktail weenies at Yearly Kos this weekend. There was a great deal of self-reflection how Mark Warner's cocktail weenies would affect our response to him. And Matt Bai, valiantly serving as the one MSM voice on a panel on the problems with political reporting, complained that he's not getting invited to many cocktail parties. So I thought it worth examining in detail Tim Russert's attempts to quash his subpoena in the Plame case. He is, quite literally, trying to assert First Amendment protection for his cocktail weenies.

Russert, if you recall, had a problem in asserting First Amendment protection in this case at all. After all, he was in no way reporting on a story when he spoke with Scooter Libby on July 10, 2003. Rather, he was listening to Libby bitch and moan that Tweety was picking on him. Russert was acting in a managerial role, not a journalistic one. So Russert cites the "realities of newsgathering" to claim that he can't be forced to reveal the content of a conversation that had nothing to do with newsgathering.

A conversation between a prominent journalist and a senior government official cannot be artificially parsed or surgically removed from the realities of newsgathering, as the Special Prosecutor apparently contends.

[snip]

And there is no basis for the Special Prosecutor's suggestion that the purpose for which a source contacts a journalist somehow governs whether their subsequent communications implicate the newsgathering function. To the contrary, the full-time occupation of a journalist such as Mr. Russert is to uncover newsworthy information from his sources, whether he encounters them in a formal interview, at a cocktail reception, or in a phone call initiated by one of them to complain about news coverage.

There is much to ponder (or gag) on in this passage. Russert doesn't consider the implications of the detail that the "source" contacted him rather than vice versa. And he claims his "full-time" occupation is that of a journalist, even though, in addition to Washington Bureau Chief, he also holds the title of Senior Vice President of NBC News. Sure sounds like he's a part-time journalist to me. I'm also curious that Russert would refer, specifically, to cocktail weenies parties. Did he have a particular cocktail party in mind, one that he wanted to protect? I don't know of any cocktail parties Russert was invited to (see Matt, you're not alone), in connection with this case. But I do suspect NBC reporter Mrs. Alan Greenspan's attendance may have been one of the reasons Fitzgerald subpoenaed the invitation list for Gerald Ford's July 16, 2003 birthday party, at which Mr. Greenspan was feted. Or did Russert just mention the cocktail weenies party because he anticipated that Jane Hamsher would turn the cocktail party into a sign of all that's wrong with DC access journalism? Because this passage captures, as well as Jane's cocktail weenie metaphor does, everything that's wrong with the culture of political journalism in this country.

In any case, Fitzgerald doesn't appear to have much patience for Russert's cocktail weenie legal theories.

The movant's claims that the subpoena impinges on his "right to maintain confidential relationships with sources," and could have adverse effects on his newsgathering efforts in the future, are highly generalized and particularly speculative given the particular facts of this case. The conversations at issue, which were initiated by Libby, related to Libby's complaint about coverage by another broadcast journalist, as well to information allegedly imparted by movant to Libby, rather than the reverse. However broadly the movant wishes to define "newsgathering," it is far from clear that the compelled disclosure of the information required by the instant subpoena reasonably could be expected to have an adverse impact on the movant's future newsgathering efforts, much less on the efforts of other journalists.

Fitzgerald goes on to note,

Movant's broad definition of communications implicating movant's "newsgathering" activities, i.e., every single contact with a government employee, whether "in a formal interview, a cocktail reception, or a phone call initiated by one of them to complain about news coverage, is not supported by the case law.

Sorry Russert. There's no precedent protecting your cocktail weenies. The ever-dogged journalist Russert tries once more, this time appealing to how important he is.

In addition, an order from this Court compelling a nationally prominent journalist to testify before a grand jury in a matter that has already become a subject of intense public concern will inevitably have a substantial chilling effect on other journalists and their sources. To be sure, Mr. Russert is entitled to no special protection from compelled disclosure, but it would blink reality to ignore the fact that an order compelling this journalist to testify against his will would inevitably have a profound impact on the free flow of information about matters of public concern.

Keep in mind, when Russert's lawyers submitted this memorandum in June 2004, Bush had already lawyered up and Cheney had already been interviewed in this case. But still Russert boldly insists that "compelling this journalist to testify against his will would have a profound impact on the free flow of information about matters of public concern." Russert appears to believe he is the cornerstone for the free flow of information in Washington DC.

Finally, though, Russert must accept the courts would laugh he and his weenies out of court, because he comes to an arrangement with Fitzgerald. Perhaps in the same way the news organizations
wanted to avoid any precedents impinging on their ability to propagate smear campaigns when they settled the Wen Ho Lee case, Russert may want to preserve the fantasy that cocktail weenies are protected under the First Amendment.

Or perhaps he just wants to preserve the fantasy that an addiction to cocktail weenies is somehow a noble trait.

Comments

[Mimikatz]

Good points. And may I take this opportunity to once again link to Trapper John's piece on Russert, one of the best take-downs of Russert, from someone who doesn't post here enough. Anyone who hasn't read it should do so. It really accurately encapsulates what happened in the '80s (and Trapper was barely alive then!)

In some ways this is what happened to many Boomers as well, people who had been radical or somewhat radical in the '60s, and then as they settled into suburban existence, found it harder and harder to really identify with the underdogs. Or even identify with principle, as had the Democratic establishment in the '40s, '50s and most of the '60s, right up to the point when the war split the party.

[Meteor Blades]

Wow. You have to give Russert and his attorneys some credit for innovativeness. In my days as a full-time journalist and later as editor/publisher in a medium-sized city, I never thought to include as protected every single conversation with every public official I had, whether or not there were hors d'oeuvres making the rounds.

There were instances in which a public official flying three sheets to the wind would ask at such a function whether I was working or just partying as a means of trying to ascertain whether his or her inebriated comments were "off the record" for the evening. Even if I wasn't working, however, and said so, none was so stupid as to tell me about a crime s/he wished me to engage in or to conceal.

But then, obviously, I was never as well-connected as weenie Russert.

[Jeff]

Old ground, but also probably timely. There's a status hearing in the Libby case in about an hour, and one of the topics bears on the possible need for early trial subpoenas in anticipation of fights over claims of testimonial privilege. My initial thought was that this had to do with Cheney, with Fitzgerald having to make clear whether he intended to call VP as a witness or not. But a lawyer friend of mine pointed out the only kind of privilege Cheney would likely be able to claim would be executive privelege, and that is a separate topic the judge put on the agenda for today (and we should be hearing whether there are going to be any executive privilege fights over the PDBs, as the last time I checked - though the schedule may have been adjusted since - any such claims of executive privilege were going to have to be entered by the special prosecutor by tomorrow). So my lawyer friend's guess was that the testimonial privilege issue has to do with journalists being called in the case.

I don't quite understand how all this works, but I think it's safe to say that the defense will want to call or at least talk to Andrea Mitchell and pretty much anyone else they can get their hands on at NBC; Kristof; Dickerson, Calabresi and Novak from TIME; and some others.

[emptywheel]

Jeff

Isn't the central point to assess the status of the ongoing investigation so Walton can determine whether it's fair to make Libby wait any further for more details on Mr. X or Rove?

[landreau]

I don't give Russert credit for anything creative. He chases dollars, and his first loyalty will be to his ability to continue to chase dollars. Hence the Senior V.P. title to which you referred.

By the way, I think the "cocktail weenie" phrase began with Mr. Wolcott, though its provenance could be elsewhere. (As Jean Shepherd used to say, there's little new under the sun.)

[Kagro X]

How is it that the "unitary executive" can exercise "inherent powers" to instruct entire cabinet-level departments to execute the law in a fashion contrary to the expressed intent of the law, but does not have the power to effectively insist that his closest advisors waive confidentiality in order to cooperate with a federal investigation?

And I have to ask as I have before, why is there any privilege for government sources who anonymously promote the government's message? What need has the government to ensure the free flow of its information to the media? Under what threat might the government find itself for disseminating its own information?

[William Ockham]

Brilliant.

[Jeff]

emptywheel

Could be; that sure would make it interesting. The judge's order identified four topics the parties had to be ready to discuss, among other things: the status of discovery; whether additional motions besides motions in limine will be filed; whether the government will be asserting any claims of executive privilege; and whether the parties think there have to be early returnable trial subpoenas to resolve anticipated claims of testimonial privilege. Presumably the Armitage and, especially, Rove business would fall under the status of discovery discussion. I hadn't heard anything about the judge's particular interest today in finding out when Fitzgerald was going to wrap up the investigation, though the issue did come up in the May 5 hearing, and more than a month having passed, it would make sense that the judge might want to press on Fitzgerald to make sure Libby wasn't denied access to usable information by a perpetually deferred end of the investigation.

[ArthurKC]

EW:

Did anyone ever confirm the assertion a couple of weeks ago that a confidential action captioned Sealed v. Sealed was filed with the same court that supervises the Grand Jury? There was speculation that the administration, the DOJ particularly, was trying to quash an indictment Fitgerald had obtained or was trying to obtain. Do you know if there is an action called Sealed v. Sealed? And, if so, what it may relate to?

BTW, last night I watched the C-SPAN tape of the Plame Panel at YearlyKos...great job by you, excellent panel all around.

[emptypockets]

To me the chutzpah award (also known as the HUDSPA award) should not be given to Russert's claiming privilege on cocktail party conversation. I don't see any reason interviews can only happen in an office, although obviously he is being silly when he says that his entire life is one big newsgathering operation, and therefore perpetually privileged.

But for me the really remarkable part is that he's claiming privileged conversation to avoid giving out what HE told the INTERVIEWEE.

The conversations at issue... related to... information allegedly imparted by movant to Libby, rather than the reverse.

Did I get that right? Forget the cocktail weenies for a moment (sorry, I just can't disparage those delicious little pigs in blankets). He's saying that what the reporter tells the interviewee is privileged? Is Libby going to replace Katie Couric and I haven't heard about it?

[emptywheel]

Arthur

I don't know any way of pursuing those speculations. If they're sealed, then I suspect we would have to wait for DOJ to tell us.

[Chefrad]

Russert isn't shy about asserting priviliges of all kinds. A while back he sought to move heaven an earth to close a public road that ran past his house in Rock Creek Park (DC).

[Swopa]

As Jean Shepherd used to say, there's little new under the sun.

The phrase goes back to Ecclesiastes, which I suppose proves the point.

[ArthurKC]

EW:

If they are sealed, of course we cannot know the contents of the sealed documents but we can confirm that sealed pleadings exist, right? Has that been done? Is it being done? For example, check the sequential file numbers assigned to cases during the relevant period. Are any of them skipped? If so, ask the clerk to see the case files to which the skipped number is assigned to. Oh, it's sealed; I see.

If it is confirmed that they exist, instead of waiting for the Justice Department to tell us what is in them -- likely a very long wait -- we should go looking for sources, especially if the traditional media do not. This was one point of the Plame Panel at YearlyKos: only Murray Waas is working the beat and, with knowledge so dispersed, getting important information out may well require a lot of people chasing after it in a lot of different places.

[obsessed]

ArthurKC: As per the ... errr ... indefatigable Mr. Leopold:

The case number is "06 cr 128." On the federal court's electronic database, "06 cr 128" is listed along with a succinct summary: "No further information is available."

[obsessed]

By the way, is today's Libby court appearance likely to yield anything of interest?

And EW - you were fabulous on the Kos panel. You should do more of that type of thing.

[ArthurKC]

Obsessed:

Thanks..."indefatigable", true; but reliable?

Assuming he is right about the case number and the sealed proceeding, it seems to me that this slender lead should be pursued. For starters, Tony Snow should be asked if the White House or the DOJ has taken any steps to limit the scope or nature or targets of Fitzpatrick's investigation. Someone should ask Gold-Bars himself...he is always good for a hint, especially clearing his client. From 1,500 miles away, it is hard to know how this investigation should be done but wiser heads can surely come up with something. [Maybe Spector could write a polite letter asking.]

[Canuck Stuck in Muck]

Dear emptywheel,
I see that you're now getting a whiff of Jason Leopold's latest addition, regarding Sealed vs. Sealed. Why do I think this is reminiscent of Spy vs. Spy vs. Spy? Sealed vs. Sealed! It's quite incredible. I hope that Jason understands why you and the other bloggers are being so wary of his claims. If true, this latest suggests that his sources are underlings, and not throughly briefed on the details. Otherwise, they'd have known from the beginning that the original 'indictment' was sealed at both ends, precluding any speedy resolution. Given that the protracted proceedings, which have created this skepticism of Leopold on your part, maybe it's time for Murray to ask some pointed questions of his own sources.
Keep fighting the good fight.

[JohnLopresti]

It seems to me the entire dispute is taking place in exactly the arena in which the most regressive interests in administration policymaking circles desire: setting moderate Republicans against the press. In writing part-IV of the WH smear, I would look for ways to avoid a Russert showdown. Doubtless, Libby's crew have scrutinized the ways in which to utilize this controversy in this stage of the pretrial processes to help repress media; Fitzgerald already has been backed into a corner over two reporters' notes in this regard. And, as a sidelight by which to illuminate the context, just last week, while saving the reputation of WHLee in a respectful manner, negotiators nonetheless managed to afford news fodder for the likes of the usually astute OnTheMedia at that now Republican dominated news outlet NPR, which in yesterday's (audio) edition characterized the out of court settlements as tribute paid by media for the right to newsgather.

[ArthurKC]

Apologies....

I did not know where this Sealed v. Sealed stuff had come from, just remembered something about it from a couple of weeks ago. I had never heard of Leopold until listening to YearlyKos this weekend and recall his name being mentioned as though it were a synonym for billingsgate. Now I see above that the two are somehow related, so I apologize for putting anyone through this, apparently, again.

[tryggth]

ew -

Do you believe sealed vrs. sealed story? Oddly I do.

[John Casper]

ArthurKC, Not a problem as far as I am concerned.
If you are interested in some reliable background, DHinMI's most recent post is entitled Jason Leopold, Sockpuppet extrordinaire"

[skippy]

hi emptywheel, this is off topic, but wanted to say nice job at the plame panel at ykos, one of the many that i liveblogged.

[lemondloulou54]

Rove has flipped? http://www.nytimes.com/2006/06/13/washington/13cnd-leak.html?hp&ex=11502576

[lemondloulou54]

WaPo quotes Luskin: In a brief phone interview, Luskin said that Rove was "delighted, obviously. . . . We've always said he [Rove] did everything he could to cooperate"

Everything he could to cooperate?

[kim]

Is Russert really a journalist? I'd say he's a manager, a former political operative, and a celebrity.

[Tom Maguire]

Isn't the central point to assess the status of the ongoing investigation so Walton can determine whether it's fair to make Libby wait any further for more details on Mr. X or Rove?

Eerily prescient.

From the Times, linked above as "Rove has flipped?"

The prosecutor in the C.I.A. leak case on Monday advised Karl Rove, the senior White House adviser, that he would not be charged with any wrongdoing, effectively ending the nearly three-year criminal investigation that had at times focused intensely on Mr. Rove.

Flipped for joy, maybe.

[Hostile]

I will never forgive the weenie sucker for asking Kerry if he still has nightmares about Vietnam and NOT asking the President if he still craves drink.

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