October 23, 2005 | National Review Online

Phoney Baloney

Miller and Cooper talk the talk, while walking over source confidentiality.

Is there anyone more full of malarkey than the ineffable mainstream media? It’s hard to believe they could top themselves on the hypocrisy meter, but in the Valerie Plame leak investigation, they’ve managed to do just that.

I refer not to their precious wailing over the refusal of the special prosecutor, in a leak investigation, to leak to them–which has, even more than usual, reduced them to loading 24/7 news cycles with their hopes and dreams for a Bush calamity. Nor is this even about reporters pretending to be dispassionate raconteurs when, in fact, they are actors on the stage: participants who testify about their role in events one day and then merrily report on those same events the next–quite aware that they’d be screaming “conflict of interest” if such flim-flam were attempted by anyone else.

Yes, those and other thoughtless embarrassments could fill a book. But today’s topic, instead, is the Fourth Estate’s vainglorious paeans to source confidentiality and their own transcendent heroism in preserving it.

And did they mention, by the way, that it is a selfless heroism? So vital to our democracy, to our liberties, yea, to our very lives is the principle that a reporter must be able to conceal the identity of a source that nothing can supersede it. No subpoena, no public-safety urgency, no cry for justice. The lips of these titans are sealed.

Unless, of course, it makes for a good story. Then all bets are off.

Naturally, they won't tell you that. After all, it's not a very becoming posture for First Amendment martyrs. But for divas like Judith Miller, Matthew Cooper, and their respective employers, the New York Times and Time, it's exactly where they're coming from. Better to prattle on about confidential sources as “the life's blood of journalism,” as Miller told the Senate Judiciary Committee last week. That way, readers may not notice that the king has no clothes.

Unless you've been living under a rock, you now know that Scooter Libby, Vice President Cheney's chief of staff, was Miller's source that Plame worked at the CIA. And you know that Karl Rove, President Bush's top political adviser, was a source who confirmed that fact for Cooper.

But how do you know?

You don't know it from the special prosecutor, Patrick Fitzgerald. He has a confidentiality commitment too — except his, unlike the one claimed by the media, is actually recognized by the law. And it is one he has honored, much to the chagrin of the journalists he is depriving of all that life's blood.

You also don't know it from Libby and Rove. As we are now informed, they spoke to reporters on condition that they not be publicly identified by name. Indeed, Libby is said to have gone so far as insisting that Miller refer to him as a “former Hill staffer” rather than a “senior administration official” to make extra sure his words would never come back to bite him you know where.

Note that at the time Libby insisted on this nom de leak — which is to say, insisted on that oh-so-solemn promise of confidentiality to which the Millers and Coopers and editorialists from coast-to-coast have effused about their unflinching dedication — there was no special prosecutor. Pat Fitzgerald was still in Chicago, minding his own business (or, at least, minding al Qaeda's business).

No, the promise Libby and Rove were seeking, and that Miller and Cooper purported to give, had nothing to do with any grand jury. It was that the sources' names would never be revealed to the public.

Yet, you are the public, and you do know their sources. Why?

You know them because the journalists decided to tell you. Miller and Cooper both made certain that the public knew every syllable uttered by the sources they've sanctimoniously told us, again and again, they made commitments to shield. And they did it in the worst possible way: in hyper-hyped, autobiographical, self-adulating accounts of their valiant struggle to withhold information from a grand jury despite that nagging inconvenience the rest of us know as the law. Miller, in fact, is planning to cash in with a book about the whole thing, while the previously obscure Cooper has become America's latest fifteen-minute celebrity (whose clock, we can hope, is nearing its last ticks).

But, as these reporters and their publications well know, they didn't have to do it.

If their principle was what they purported it to be, if they were as committed to it as they feigned, you wouldn't know anything. Their sources would remain confidential — perhaps forever. In the chain of charades begun by the charlatan Joseph Wilson, the phoniest of all may be that the special counsel, rather than mendacious media themselves, outed confidential sources.

Federal law makes grand-jury proceedings secret — prosecutors, grand jurors, and stenographers are obliged to keep what is said there confidential. Miller and Cooper ultimately had to comply with the law that requires each person to disclose his evidence to the grand jury. That law does not, however, require revelation to anyone else. The reporters could easily have told the grand jury what they knew but maintained their silence as to the rest of the world.

But wouldn't the sources have been revealed anyway? Possibly, but not necessarily — and there's a very good chance that they wouldn't have. Much of grand-jury proceedings ends up disclosed if an indictment is returned. But Fitzgerald may decide not to bring any charges. In that event, the matter could be closed without any need to reveal publicly who said what to whom — the limited disclosure would have died with the grand jury to whom it was made, leaving the sources protected.

Further, even the filing of charges would not have led inexorably to exposure of sources. There is no requirement that indictments detail every aspect of the evidence — they need only generally alert an accused of what statute he is alleged to have violated, where, and when. To be sure, if it looked like the case was ultimately headed for a jury trial, there would probably be a more expansive indictment, and trial testimony would no doubt let the cat out of the bag. But over 90 percent of criminal cases are disposed of by guilty plea. In that scenario, there would almost surely have been no need for public revelation of all reporter-source communications.

It's worth remembering the now ancient history of this affair. Matters got kicked off over two years ago when Robert Novak wrote a column recounting what two Bush administration officials told him about Plame.

Who were Novak's confidential sources? We don't know.

It's fair to assume Novak has told the grand jury who they were. The law gave him no choice. But having promised to shield his sources from the public, he evidently did not regard a narrow legal compulsion to provide evidence in a secret proceeding as license to expose those sources for the entire universe to see and snicker at. And if the investigation ends without charges or with guilty pleas, you won't know anymore about Novak's sources tomorrow than you do today.

Yet, in the inverted world of media morality, it's Judith Miller and Matthew Cooper who are the polar stars of integrity. Go figure.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.