Commentary Magazine

Law and Order

Did Scooter Libby write a letter to New York Times reporter Judith Miller in prison containing a coded hint that she should back up his story in court? So asks New York Times reporter Neil Lewis, referring to a curious passage in a missive Libby mailed to Miller in September 2005, ostensibly releasing her from her pledge not to reveal him as her source for the identity of CIA operative Valery Plame Wilson, but possibly suggesting something else entirely. “Out West, where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them,” Libby wrote.

Asks Lewis: “Was that phrase a simple attempt at a literary turn? Or was it a veiled plea for Ms. Miller to ‘turn’ with him and back up Mr. Libby’s account that he had not disclosed Ms. Wilson’s identity to her?”

The trial of Scooter Libby on perjury and obstruction-of-justice charges, now entering its second week, may not clear up the mystery of the clustered Aspens, if it is a mystery at all. And it may not clear up the new mystery, raised yesterday by Libby’s crack defense team, of whether their client was being sacrificed by White House operatives to protect Karl Rove. But the investigation of Libby and the Plame leak has gone a considerable distance toward resolving another conundrum that has bedeviled our legal system for decades: namely, whether newsmen are above the law. When the Supreme Court refused to hear Judith Miller’s appeal of her imprisonment on contempt charges, it stood by its own precedent set in 1972 in Branzburg v. Hayes that journalists, like all other citizens, are obliged to testify before grand juries regarding potentially criminal activities, including the criminal activities of their confidential sources. The “public . . . has a right to every man’s evidence,” ruled the Court.

A coalition of First Amendment activists and journalism associations is now lobbying Congress to overturn the Supreme Court’s decision by passing legislation that would create a “reporter’s privilege.” With the Democrats in power in Congress, the prospects for success are now better than they have been for a generation. But at a moment when the country is facing mortal threats from Islamic fanatics and the press has been publishing counterterrorism secrets with reckless abandon, we need a reporter’s privilege as badly as the New York Times needs another Jayson Blair. As I argue in the February issue of COMMENTARY, such a law would manage to damage our national security and do violence to the First Amendment in a single swoop.

To help defray the considerable costs of defending Scooter Libby, send a check payable to:

Libby Legal Defense Trust
2100 M Street, NW Suite 170-362
Washington, DC 20037-1233

To help defray the even more considerable costs of prosecuting Scooter Libby, send a check payable to:

Gifts to the United States
U.S. Department of the Treasury
Credit Accounting Branch
3700 East-West Highway, Room 6D37
Hyattsville, MD 20782

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