The False First Amendment of the Dow Jones and AP

by emptywheel

Back when Dow Jones and the AP renewed their bid to unseal the materials relating to Judy's and Cooper's subpoenas, they asserted--apparently based on self-serving public comments by Novak, Rove, and Armitage and on Victoria Toensing's self-declared omniscience in all things Plame--that Fitzgerald's pursuit of the journalists' testimony was unnecessary.

Recently, the public learned that the Special Counsel's pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's name to Robert Novak, the columnist who had first published it.  The public now knows that the Special Counsel knew the identity of that leaker -- Richard Armitage, the former Deputy Secretary of State -- from the very beginning of his investigation. [my emphasis]

Their bid to unseal these materials went on in highfalutin' language about the public's right to know, the importance of explaining to the public why Fitzgerald thought he needed Miller's and Cooper's testimony.

Unsealing the redacted portions of Jude Tatel's opinion and the Special Counsel's affidavits will enable the public to scrutinize the basis for this Court's ruling that any common law reporter's privilege was overcome.  Furthermore, it will help the public understand the basis for the appointment of the Special Counsel and the Special Counsel's determination and argument that, notwithstanding Mr. Armitage's revelation in October 2003, he viewed it necessary to compel testimony from Ms. Miller and Mr. Cooper -- and force the imprisonment of Ms. Miller -- to fulfill his investigatory mandate.

Now, you'd think, what with all that language about the importance of helping the public to scrutinize the Court's decisions and to understand Fitzgerald's thinking, that'd be what Dow Jones and the AP would focus on when enough of those documents were unsealed to answer their questions, right? You'd think that, given that the affidavits clearly explained that Fitzgerald was still considering charges against Armitage in connection with the Novak leak--and that stories of Rove, Libby, and Armitage were all tied together in a knot of half truths--the news organizations would waste no time in either making those affidavits available to the public they care so much about, or at least reporting on those questions they claimed were so important and pressing that they should overcome grand jury rules. You'd think that, at the very least, those news organizations would rush out and admit they were wrong when they accused Fitzgerald of subpoenaing journalists for no reason.

But that's not what happened.

Here's Matt Apuzzo's description of the unsealed documents for the AP. Now, Apuzzo repeats the accusation the AP and Dow Jones made in their motions to unseal--only he conveniently places that accusation in the voice of Libby's supporters, not in the voice of the AP and Dow Jones (though just a reminder, Toensing was effectively on both of these teams, working the press for Libby and the Courts for the Dow Jones/AP motion).

Libby's allies have called for a pardon, largely because Libby was not the source for the 2003 newspaper article outing CIA operative Valerie Plame. They accuse Fitzgerald of running amok and using the leak investigation to trap Libby into a perjury case.

Rather than following that accusation with the logical follow-up--revealing that the unsealed documents in fact proved these accusations to be false--Apuzzo lapses into the media's favorite position, the lukewarm ambiguity of two sides.

The documents unsealed Friday cut both ways.

Upon which Apuzzo goes on to repeat some vague, literalist understanding of what was unsealed, rather than reporting about the abundant evidence that everyone was lying, specifically as it relates to the Novak leak.

And in the article, Apuzzo never answers the question his employer thought was so pressing that it merited a court challenge: why Fitzgerald and the Courts thought it necessary to subpoena journalists.

Now, there are several possible explanations for why Apuzzo didn't answer the question his employer claimed was such a pressing question. Most charitably, perhaps he just didn't have enough space or time to report that the unsealed documents showed that Fitzgerald was still pursuing Armitage--I actually saw that happen to the AP journalists covering the trial on a number of occasions. Or perhaps Apuzzo didn't read the documents closely enough to understand what he read--that description of the intertwined lies (including Libby's lies) tied directly to the Novak leak.

But there are two other possible explanations for Apuzzo's silence about the Armitage revelations. Perhaps the AP doesn't like to have to admit it is wrong--that its accusations that Fitzgerald was a runaway prosecutor, launched in court documents and the public, was wrong. Which would suggest that the AP's concern for public scrutiny takes a clear back seat to its concern about its own reputation. Or rather, that the AP's invocation of the public right to know was just a convenient legal prop, one the AP only supports when in certain convenient situations.

Finally, though, there's the distinct possibility that the AP and Dow Jones didn't want to publicize that their attempt to unseal these documents was just a tactic, a Victoria Toensing-led tactic designed to support the larger media narrative that Fitzgerald's investigation was illegitimate. They apparently don't actually care what the content of the affidavits is (in fact, by their silence about that, I presume they'd prefer that the content remains unpublicized). They care only that the motion to unseal the affidavits gave them a legal forum in which to insinuate that Fitzgerald's investigation was out of control, regardless of (indeed, in direct contradiction to) the content of those affidavits.

In either case, the AP silence on this evidence (I'm still trying to find out if the WSJ said anything on the subject) is just one more example of how the media establishment wields the First Amendment as a cynical tool to support their preferred narrative. But not, actually, to support revealing the truth.

Update: DemFromCT was kind enough to email me all the WSJ stories on Libby from the time period:

07/13/07
Black Trial: Bora Bora Kosher, Non-Compete Payments Not
Law Blog

07/09/07
Libby Has a Chance to Clear His Name
Your July 3 editorial "Bush and Libby" may have missed a significant point: Had President Bush pardoned Mr. Libby (something he can still do before leaving office, by the way), it would have rendered Mr. Libby's appeal of his conviction moot. The commutation allows Mr. Libby to continue to pursue his vindication in court. Given the egregious behavior of the prosecutor, Patrick Fitzgerald, and the questionable rulings on evidence and witnesses by the trial judge, it seems Mr. Libby may well succeed in his appeal and actually clear his name.
WSJ

07/03/07
Sparing Libby Cuts Two Ways
Bush commuted Libby's 2½-year prison term, calling it "excessive." The decision is likely to irk critics on the left, but also may hurt some Republican presidential candidates. (Bush's statement)
WSJ

07/03/07
Bush Won't Rule Out Pardon for Libby
The White House refused to rule out the possibility of an eventual pardon for former aide Libby. Bush commuted his 2½-year prison term, calling it "excessive." (Bush's statement)
WSJ

07/03/07
The Morning Brief
President Bush's decision to commute the prison sentence of former White House aide I. "Scooter" Libby has been condemned by Democrats and cheered by many conservatives, but ultimately may reflect an attitude within the administration that it has little left to lose.
WSJ

07/03/07
Bush and Libby
Libby deserved better from the President than a commutation.
WSJ

07/02/07
Bush Statement on Libby Order
President Bush's statement on Monday in sparing former White House aide I. Lewis "Scooter" Libby from a 2 1/2-year prison term.
WSJ

06/22/07
A Tale of Two Prosecutors
Law Blog

In other words: calling Fitzgerald a runaway prosecutor is sufficiently important to make an Appeals case out of, but actually reporting that the WSJ was wrong about that fact isn't worth a mention.

Comments

[William Ockham]

Although, as far as I know the AP hasn't called for a Libby pardon, the most logical way to read the article is that the AP is tacitly admitting to being among "Libby's allies".

[Ishmael]

EW - While on the subject of the media establishment and that mean Patrick Fitzgerald - WOOHOOO! On the second day of Fitzmas.... Former Press Baron, Former Canadian Citizen, Conrad Black was convicted by Team Fitz of three counts of mail fraud and one count of obstruction of justice!!! He faces a maximum of 35 years in prison. The trial coverage of Black, which I followed zealously, was very slanted against the prosecution, with the insinuation being that the prosecution had a "weak case", and that Fitzgerald was "criminalizing" big business practices. Any connection to Conrad Black's status as a neocon warmonger in the Daily Telegraph, Chicago Sun-Times, the National Post (Toronto), and his payment of "consulting" fees for one day of meetings a year to the likes of David Frum and George Will is, of course, coincidental. Now excuse me while I Snoopy dance - Black has been ripping off shareholders, unions, taxpayers and pensioners for decades in Canada and around the world, and I have to say, I think I take more personal satisfaction from this than Scooter. I doubt the Commuter will do much for Lord Voldim... I mean Lord Black.

[emptywheel]

Yes, indeedy--though they only got convictions on some of the charges, it does look like Conrad Black will be hoping for some Libby Leniency from Bush.

[Ishmael]

The irony is, the most serious charge he was convicted of was the obstruction charge (20 yrs max) for branzenly removing, while being videotaped on security cameras, with his own hands and into his own car, 13 boxes of records from his offices that had been impounded by court order in the fraud investigation. I can't help but think that this unbelieveably arrogant and stupid act by Black had a real effect on the jury's determination of his consciousness of guilt - and yes, he was acquitted on some of the charges, but one was the RICO charge, which was really a stretch in this context.

[Ishmael]

EW - Perhaps the Conrad Black story would be a good book for Vaster - Anatomy of Conceit, perhaps? There have been lots of gossipy books about Black, but none that really exposed him and the corrupt practices of his cronies - sounds perfect for you! I really think you could use this story to show the intersection of the corruption of the big business, media and political worlds. Black was at the crossroads of the neocon infiltration into all three areas - the Boards of Directors and consultants of his companies included the likes of Perle, Kissinger, Margaret Thatcher, the Kohlberg Kravis gang, all the people who have been at the heart of the madness, madness, madness of the past two decades.

[Sparkles the Iguana]

Robert Novak—Prince of Darkness
By Patrick J. Buchanan

"Come here," Richard Nixon whispered.

I did—as Nixon peeled the curtain back to reveal a group of reporters gathered for his press briefing.

"There," Nixon nodded. "That is the enemy."

Nixon had directed my attention to a swarthy fellow seated in the front row, separate from the rest, who seemed to be scowling, but at no one in particular. It was Robert Novak.

[Sparkles the Iguana]

Conrad Black can hope all he wants for some Libby leniency, but he's a formerly-Canadian Brit, and his biographies of FDR and Nixon didn't have any lyrically written bear-on-human scenes.

[Sparkles the Iguana]

more from Pat Buchanan:

"At the party in his Pennsylvania Avenue apartment to celebrate his baptism as a Catholic, Pat Moynihan said to me, among others, "Pat, now that we have made Novak a Catholic, do you think we can make him a Christian?"

If the late senator were still with us, one would have to inform him that this remains a work in progress."

[William Ockham]

Slightly off-topic, but I've been trying to come up with good suggestions for Judge Walton for additional terms of Libby's supervised release. These terms need to be related to the crime that was committed. So, when Kevin Mitnick was convicted of computer hacking, he got saddled with a whole host of terms that prohibited him from using computers. So, I'm thinking that, since Libby's crimes involved lying about his discussions with reporters, one term of his supervised release should be a prohibition on talking to reporters.

[HenryFTP]

EW:

I don't doubt that Icky Toensing was pushing her preferred narrative in coaching AP and DJ, but I think the real reason they were pushing is the agenda of most of the major news organizations, most notably the Times in its casting Judy Miller as martyr for press freedom -- namely, to scupper an investigation that threatened the heart of the cozy, convenient "informed-but-never-named sources" journalistic practice. In their eyes, Fitzgerald was persecuting roguish latter-day bootleggers who were simply supplying the customers with liquid refreshment.

They are as wilfully blind to the inherent corruption as were the citizens of Chicago in the 1920s.

[JEP]

Years ago, while on a fishing trip to Minnesota, a friend of mine performed a prank that reminds me of this Armitage-Novak-Russert shell-game.

It "reeks" of gamesmanship.

Knowing one of his relatives would be moving into the remote cabin we occupied in a couple days, my friend left a fresh (at that moment) perch carcass wrapped in a newspaper in a drawer in the kitchen.

But that little fish was just a FRONT! My pal also put a bigger sack full of walleye carcasses in the potato bin under the old fridge.

The idea was simple. When his relatives moved into the cabin for their share of the family summer-vacation time, they would surely smell fish, (in the less-than-fresh state it would be two days later) and go looking for it.

And. he admitted, they would probably suspect who put it there. Something about an ongoing prank vendetta...

Anyway, his logic was, when they find the perch, (which was not very well hidden for SOME reason,) they'll think they beat the stink problem.

But the smell will linger, because the REAL dirty trick was the big sack of walleye carcasses in the potato bin.

Armitage is the Perch.
Rove, Libby, and Cheney are the Walleyes.

We need to keep looking for those hidden fish skeletons, because something still stinks in Washington...

[prostratedragon]

Excellent analogy JEP, illuminating one of the canonical ploys in their toolchest. One thing that has made the leak affair so fascinating is the clear view it gives of GOP/Rove con methods.