Free Scooter Libby!

By Michael Kinsley

There is no holier icon in the church of the First Amendment than the anonymous leak. Ever since columnist Robert Novak published the identity of a CIA officer nearly four years ago, voices of journalism have delivered sermon after sermon about the centrality of leaks not just to journalism but to democracy itself: We need leaks to keep the government honest.

In order to encourage leaks, it follows, reporters must be able to guarantee anonymity to their sources. And in order to protect that anonymity, journalists must be excused from the ordinary duties of citizenship, such as testifying in a criminal investigation.

It has been a comically rococo story, hard to follow, with a changing cast of characters (including a reporter for TIME), each of whom does a star turn and then bows out. The star of the moment is I. Lewis (Scooter) Libby, who was the Vice President's chief of staff, and is now on trial for perjury.

The specific facts of this saga have not been friendly to the press's arguments. Far from keeping the government honest, the leaks or intended leaks in this tale were all part of a dizzy spin campaign in the Vice President's office. What's more, everyone involved seems to have overlooked the fact that a leak of the identity of an undercover officer can be against the law. This is a law that even most journalists think is reasonable. This law cannot be enforced if one of the parties to an illegal conversation is protected by the Fifth Amendment's right against self-incrimination and the other party, as journalists wish, is protected by a reporter's First Amendment immunity from testifying. Journalists have secrets, and government intelligence agencies have secrets. Journalists seem to be saying that their secrets are always more important and always get to win.

But even Bob Woodward can't create a leak all by himself. It takes two. You need someone else with inside knowledge of the evildoing in question. And here is what's strange: the gospel of the leak has nothing to say about sources except that the reporter won't blab about who they are. If the boss finds out who the leakers are in some other way and fires them, or if they find themselves the subject of a gargantuan federal prosecution, they should not look to the press for sympathy.

The coverage of the Scooter Libby trial has been jaunty to the point of slapstick--quite different from the cathedral solemnity when journalists are in the dock. There have been no self-righteous editorials from the New York Times or the Washington Post with titles like "Press Freedom on the Precipice" or "Showdown for Press Freedom" (both real examples from the Times). This isn't hard to explain: I have been loving Scootergate myself and devouring the coverage. It's great to see the ham-handed machinations of the Bush Administration exposed. Yet Libby faces the possibility of years in prison and the certainty of hundreds of thousands of dollars in legal bills--all because he allegedly tried to help journalists produce this sacred object, a leak.

But when journalists are threatened, the voices of journalism make no such distinction between good leaks and bad ones. If they did, this one would certainly qualify as a bad leak. The secret it revealed, a U.S. intelligence officer's identity, should have stayed secret. Nor did anyone ever suggest that New York Times reporter Judy Miller should not qualify for protection because she never used the stuff Scooter leaked to her.

Libby is charged with perjury, not with the leak itself. But some might recall that perjury, and not illicit sex, was the charge in the impeachment trial of Bill Clinton a few years ago. And many people--including me--felt that prosecutor Ken Starr had set Clinton up: perjury is not good, but there had been a fundamental unfairness in forcing Clinton to choose between committing perjury and revealing information he should never have been asked for. Libby's case is similar, isn't it? That is, it is similar if you hold to all the theology about the importance of leaks. If leaks are good and must be protected and if we make no distinction between good leaks and bad ones, unofficial leaks and official ones, true leaks and false ones (and the theology makes no such distinctions: all leaks must be protected), then Libby should not have had to testify about whether he had leaked the Plame identity to anyone. And if he had not been asked, he would not now be accused of lying.

If leaks are vital to the freedom of the press, then surely both of the people needed to create a leak--the reporter and the source--deserve protection. If Judy Miller is a martyr of press freedom, then so is Scooter Libby.