Posted 9:44 AM by Robert

A Different Kind Of Conspiracy II

A helpful and knowledgeable reader e-mails with a good observation regarding the post below:

By way of counterargument, one might note that Morison is the one and only person to have been convicted of illegally disclosing classified information to the media. And he was pardoned! (in January 2001 by the outgoing President Clinton).

I completely agree that the government in its normal configuration is very reluctant to prosecute or persecute media representatives who do these things. But, despite many claims to the contrary, much of this law is pretty clear: Media representatives entering into standing agreements with government employees with the intent of inducing them to convert government confidential information are committing serious federal crimes unless the matter is covered by a "whistle blower" statute. Of course, the media reveal confidential leaks routinely - but where the leak is substantially more than a mere "dump" by the leaker the media representatives involved (and their sources) are just getting away with it. That's true of a lot of tax dodgers, too: Andrew Fastow's wife, for example, was one of very few people to serve time for what she did on her taxes. I'm not aware of a case in which a federal judge or jury has dismissed or acquitted a reporter on well supported conspiracy or aiding and abetting charges respecting theft of confidential government information - especially where the information was leaked pursuant to the reporter's agreement with a government employee who was not a sainted "whistle blower". Isn't that the kind of thing that the darkest versions of the Plame case hypothesize? On the other hand, I'm not aware of "unspecial" federal prosecutors bringing such charges. A combination of prosecutorial discretion and presidential pardons is pretty unreliable protection for the media.

So I'm not so sure that Morison being the only one nabbed so far gives much comfort. For example, Mrs. Fastow found out that the time and circumstances were right (Enron), so off she went to the pokey - despite her young children and the weak charges against her. And the law has gotten a lot stricter on disclosure of confidential government information since Deep Throat days. If the right circumstances arise (some period of national stress arising out of an act of terrorism, for example) the disclosure of confidential information situation could get very ugly very fast.

Even before such a development, things could get very nasty. An ordinary US attorney is unlikely to prosecute, but it's much more likely that an independent prosecutor or a special prosecutor (Mr. Fitzgerald, for example, is a US attorney and a special prosecutor) would do it. His decisions in the Plame case are not those of a federal prosecutor working for the government in its normal configuration. He has been deliberately made mostly unaccountable. The incentives on the now-defunct federal "independent prosecutors" were worse. I think it was largely a mixture of coincidence and strategic considerations that none of the independent prosecutors went after media representatives - but it could have got very bad.

What Mr. Fitzgerald is doing now in the Plame case is a small example. In a bizarre short-sighted political miscalculation, Democrats, the New York Times and other media outlets started howling for investigation of the Plame "leak" - even though it would obviously lead right to them. That stupidity (it's not too strong a word in this case) pretty much neutralizes the media's ability to effectively criticize Fitzgerald as he goes after those reporters. The Times efforts to do so, for example, have been risible.

Much worse than anything contemplated by Mr. Fitzgerald could have been done to the Washington Post and its reporters by an independent prosecutor even at the time of Deep Throat. It's ironic that independent prosecutors were once much beloved by the media, until a Democratic president became the target of so many independent prosecutor investigations - perhaps another example of media thanatos! Of course, another of the many ironies would have been that Nixon would have had no direct responsibility for the resulting damage to the media had that occurred.

The media have obvious mechanisms for holding an elected officer to account - especially with respect to media revelations that put such an officer (or people working for that officer) in a bad light. That's not true of independent prosecutors - perhaps the biggest threat to freedom of expression this country has seen for a while. Thank God they're gone and their threat was never realized!

Now if we could just get rid of the "special prosecutors" and get the media to hold elected politicians (the president) to account for the acts of his non-special Justice Department operatives without destroying the media's own credibility and effectiveness with transparent political agendas. But there's no perfect world. The world with the normal configuration of the government as designed by the Framers generally just seems to be the best of the lot.