Fitzgerald's Cover-Up ~ Editorial

The Wall Street Journal

REVIEW & OUTLOOK

Fitzgerald's Cover-Up
April 4, 2007; Page A14

For a prosecutor who claims to be a truth-seeker, Patrick Fitzgerald sure can be secretive. Even now that the Scooter Libby trial is over and his "leak" investigation is all but closed, the unaccountable special counsel wants to keep his arguments for creating a Constitutional showdown over reporters and their sources under lock and key.

Mr. Fitzgerald is fighting release of the affidavits he filed with the D.C. Circuit Court of Appeals to justify compelling two reporters to testify about their conversations with Mr. Libby, and to throw one of them in jail for 85 days until she did so. Also under court seal are eight pages of a redacted 2005 D.C. Circuit opinion by Judge David Tatel that explained the court's decision to support Mr. Fitzgerald's pursuit of the reporters.

In January, Dow Jones -- which publishes this newspaper -- and the Associated Press requested that the D.C. Circuit release this material now that the case is wrapped up. 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. At a minimum, prosecutors and reporters deserve to know what evidence the D.C. Circuit found so compelling so we can all avoid such future collisions. Congress also has an interest now that it is contemplating a "shield law" to protect media sources.

In his reply to the DJ-AP motion, Mr. Fitzgerald tries to hide behind rule 6(e) of grand jury secrecy. He claims the integrity of grand juries will be compromised by the release. But much of the material was already disclosed during the Libby trial, if not leaked earlier. And the far larger risk to grand jury integrity would be if Mr. Fitzgerald misled the courts about what he knew and when he knew it in order to coerce the two reporters to testify.

As a "special counsel" appointed by his good friend and former Deputy Attorney General James Comey, Mr. Fitzgerald operated essentially without Justice Department supervision. He once said himself that he "serve[d] as the functional equivalent of the Attorney General." Now he wants the D.C. Circuit to give him a free pass as well.

The Dow Jones-AP request is about holding Mr. Fitzgerald accountable for what he told the courts. If it is the same as what he told the public, then the prosecutor should have nothing to fear from the release of the affidavits or Judge Tatel's redacted opinion.

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