Plame Game - The Defense Calls the MSM

Even though the left had their bone crushed by the fizzle of Fitzmas, they are still trying to spin how the Scooter indictment is going to turn into the trial of the century as it would cause the White House team to have to testify.

Well, maybe, but if anyone has anything to worry about, it out to be the MSM:

WSJ Opinion Journal: Fitzgerald's Eight Pages: Let's unseal the reason he put Miss Run Amok in jail.

"Apart from Scooter Libby, the biggest loser by far in the Patrick Fitzgerald probe has been the press. The "leak" investigation that every liberal editorial board demanded has already sent one reporter to jail, and the damage is only going to get worse.

Thanks to the disastrous New York Times legal strategy, the D.C. Circuit of Appeals dealt a major blow to a reporter's ability to protect his sources. Prosecutors everywhere will now be more inclined to call reporters to testify, under threat of prison time. And if Mr. Libby's case goes to trial, at least three reporters will be called as witnesses for the prosecution. Just wait until defense counsel starts examining their memories and reporting habits, not to mention the dominant political leanings in the newsrooms of NBC, Time magazine and the New York Times. "Meet the Press," indeed.

Rather than join this parade of masochism, we thought we'd try to speed things along, as well as end one of the remaining mysteries in the probe. That's why Dow Jones & Co., this newspaper's parent company, filed a motion late Wednesday requesting that the federal district court unseal eight pages of redacted information that Mr. Fitzgerald used to justify throwing Judith Miller of the New York Times in the slammer.

The pages were part of Judge David Tatel's concurring opinion in the ruling against Ms. Miller and Time magazine's Matthew Cooper. Judge Tatel said the eight pages showed that, with his "voluminous classified filings," Mr. Fitzgerald had "met his burden of demonstrating that the information [sought from the reporters] is both critical and unobtainable from any other source."

The pages remain sealed, but now that Mr. Fitzgerald has indicted Mr. Libby and said "the substantial bulk" of his probe is "completed," there's no reason to keep those pages secret. The indictment itself discloses the nature and "major focus" of Mr. Fitzgerald's grand jury probe, including the fact that Valerie Plame worked for the CIA. The special counsel's own extensive public discussion of the facts in the case should also have vitiated any protection from disclosure under grand jury rule of evidence 6(e). Future prosecutors and judges trying to decide whether to throw a reporter in jail should be able to inspect the evidence in this case, which will be an influential precedent.

Unsealing the eight pages would also help put to rest the wilder "conspiracy" claims that continue to circulate about the case. Residents of the Internet fever swamps can now point to the sealed pages and say, aha!, dark secrets are being covered up. As the Dow Jones motion notes, the D.C. Circuit has ruled in an earlier case that "contemporaneous access" to information is vital "to the public's role as overseer of the criminal justice process."

Beyond this motion, we think Mr. Fitzgerald also has a broader duty, as well as some self-interest, in wrapping his probe up quickly. By keeping the case open even though his grand jury has been shut down, he keeps a cloud over the Bush Administration and hampers its ability to function. If after two years of digging he hasn't found any other crimes, he has an obligation to close up shop.

As for his own self-interest, Mr. Fitzgerald is going to have a hard enough time proving that Mr. Libby lied based largely on the testimony of three journalists. This is something all libel lawyers understand, and they get to spend weeks preparing reporters under the cloak of attorney-client privilege. Rest assured that Ms. Miller's evocative self-description, "Miss Run Amok," will surface on cross-examination.

At his arraignment yesterday, Mr. Libby pleaded not guilty and his newly hired defense attorney said Mr. Libby wants a jury trial to "clear his good name." Sounds like Mr. Fitzgerald has a fight on his hands."

Well, as a member of the "fever swamp" I look forward to looking under the hood if we get the chance. However, more important, when this goes to trial Libby's defense team will no doubt subpoena all the key journalists involved in the story. Judy Miller, Matthew Cooper, Tim Russert, Pincus, Kristof, Corn, Novak and others will all once again have to appear before a jury. Not a Grand Jury, but a regular Jury of Mr. Libby's peers. A different ball game. This time any attempt to limit their testimony will be hampered by their previous motion to excuse themselves. They shot themselves in the foot. Additionally we won't just read statements from Tim, he'll have appear in person and be subjected to cross examination.

Additionally, other witnesses related to the journalist may be called as well. Can't wait!

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