NYT: "Drag [our] reporters into court" where they can flout the law! We insist!

One of the most outrageous statements ever to appear in a newspaper was published in a New York Times editorial yesterday.

To demonstrate how outrageous, I'll cover some deep background, and then some that's more immediate.

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Of all the movies ever made about the newspaper business, Alan J. Pakula's All the President's Men in 1976 was probably the single most flattering, with Robert Redford and Dustin Hoffman playing Bob Woodward and Carl Bernstein. Among the most memorable series of scenes were those of Redford/Woodward meeting with Hal Holbrook/Deep Throat in a shadowy, gloomy, eventually quite scary parking garage. And you may or may not remember this bit, which starts off with Woodward and Bernstein bemoaning getting scooped by the WaPo's archrival, the NYT:

CUT TO:

The Times spread somewhat tentatively over a mailbox. A small headline is visible, with the words "Barker," "Liddy," and "Telephone" in some kind of order. WOODWARD and BERNSTEIN look at it the best they can.

BERNSTEIN: Goddammit —

WOODWARD: — see? —

BERNSTEIN: — I'm trying —

WOODWARD: — fifteen phone calls —

BERNSTEIN: — fifteen or more phone calls from the burglars in Miami to Gordon Liddy at CREEP —

WOODWARD: Why didn't we get that?

BERNSTEIN: Christ, and I even know somebody at the phone company —

WOODWARD: — you do? — with access to records?

As BERNSTEIN nods —

CUT TO:

A LITTLE CITY PARK. A guy shells peanuts. BERNSTEIN hurries up.

BERNSTEIN: Why couldn't you have just dialed me from the office, Irwin?

IRWIN: 'Cause I'm not calling out from the phone company anymore — (drops his voice) — I think the place is bugged.

BERNSTEIN (taking some peanuts): So tell me about the Times article.

IRWIN: What do you want to know?

BERNSTEIN: No games, Irwin; give.

IRWIN (looks at BERNSTEIN): My big civil rights buddy — (shakes his head) — boy, if John Mitchell was after your phone records, would you be screaming.

Later in the movie, Woodward and Bernstein roust the WaPo's editor, Ben Bradlee, out of bed:

CUT TO:

BRADLEE IN HIS DOORWAY IN THE MIDDLE OF THE NIGHT. It's a house with a lawn and from somewhere there is the SOUND of dogs barking.

BRADLEE: You couldn't have told me over the phone?

CUT TO:

WOODWARD and BERNSTEIN moving up the walk to BRADLEE.

WOODWARD: We can't trust the phones, not anymore. Deep Throat says so.

(Emphasis mine.) I'm guessing that somewhere less than 0.01 percent of the New York Times' reporters have not seen this movie. I'm guessing that 95 percent of them have seen it multiple times. It's a movie made from a book, and both of them are taught in journalism schools; if there is a Holy Gospel of Journalism, it's "All the President's Men." And until he self-outed himself last year, Deep Throat was undoubtedly the most famous "confidential source" in the history of journalism.

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Now I want you to imagine that you're an FBI agent. The date is either December 4th or December 14th, 2001. Your colleagues at the Bureau are still combing through ashes and body parts in lower Manhattan, and you're on your way to conduct a raid at the offices of what's ostensibly an Islamic charity organization, but which strong evidence indicates may actually be an operation to raise funds for terrorist organizations from within the United States. You're on home turf, baby — either in Chicago or Dallas, your pick. You're cinching down your body armor when a buddy hands you a copy of the late edition of the previous day's New York Times — and he points you to a story discussing the specifics of the raid you're about to make, including its target! You arrive at the raid scene to find not the startled terrorist-enablers with books and records and full-to-bursting computer hard drives still there to seize, but rather, the "charity's" lawyer calmly waiting there to greet you along with his clients, whose arms are crossed and whose faces wear the most smug, mocking expressions you've ever seen in your law enforcement career. All the wastebaskets are empty; the computers are unplugged; you see a mop propped in the corner, still dripping wet. And you wonder to yourself, "If that story had been in the morning edition today instead, would we have found these guys waiting for us with AK-47s and grenades instead of with their lawyer?"

Later that day, you sit in on a meeting between the special agent in charge of this badly compromised raid and the United States Attorney in Chicago. The phrase "obstruction of justice" has already been used frequently in the conversation, along with a variety of swear-words that would make most sailors blush. You hear a reporter's name mentioned over and over again, too — either "Judith Miller" or "Phillip Shenon," again take your pick — and your boss' coffee cup topples off the edge of the conference table as he pounds it for emphasis: "We need that reporter's butt in a witness chair before a grand jury ASAP!"

"No," explains Mr. Fitzpatrick, the U.S. Attorney, and he runs everyone in the room through the law on this one more time. Although there are some state statutes creating privileges under state law, under federal law there is no formal privilege that permits reporters to shield the names of "confidential sources" like the ones mentioned in the NYT stories. There's a U.S. Supreme Court case saying reporters have to testify just like any other citizen. But — and it's a big "but" — there are Department of Justice policies that commit the DoJ to essentially the same protections for reporters that even the most generous, most pro-media of these state shield laws create. Of course the fastest and surest way to find out who leaked to the NYT about these raids, agrees Mr. Fitzgerald, would be to pop Mr. Shenon or Ms. Miller with a grand jury subpoena and put them on the witness stand and just straight-out ask them — under subpoena, under oath, and under penalty of contempt of court if they refuse to answer — who tipped them off. But under DoJ policies, even when that information is essential, the government first has to look for "less intrusive" means to get that same information. Prosecutors can't start with the reporters themselves if they can get equivalent information somewhere else.

"Wait a minute," you interject, "Whose idea was that, that we have to use these 'less intrusive means'?"

"Why, it was the media's idea, of course!" answers Mr. Fitzpatrick. "If they've been careful, if they've met with their confidential sources in some parking garage like that 'Deep Throat' guy in the movies insisted on doing, we may be s**t-outta-luck with the phone records, in which case we'll have to subpoena the reporters directly. But first we have to subpoena the phone records — otherwise any judge will probably quash our subpoena for the reporters themselves, and I'll be in trouble with the Attorney General for violating DoJ policy."

"Now excuse me, guys," he says, "I've got to write a letter to the NYT asking for their consent to provide us with their phone records as a less intrusive means than subpoenaing their reporters directly." But then he stops, and chuckles: "Of course, as far above the law as these guys think they are, they probably did use their phones."

(Obviously I'm engaging in dramatic license here, especially with the dialog — but no more so than did the writers and makers of "All the President's Men." I don't know if there actually was a dripping mop, but there indeed was a lawyer waiting at one of the "charities," and Mr. Fitzgerald did write such a letter. The basic facts I've described are indeed accurate.)

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Back, finally, to the NYT's editorial (hat tip: Michelle Malkin), and the particularly outrageous line in it (boldface mine):

Rather than drag the reporters into court, where they could have protected their sources by refusing to testify, the prosecutor subpoenaed their phone records for 11 days in 2001. A trial court prohibited the government from obtaining the records from the phone companies, but a divided appeals court reversed that decision. Now the Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.

This is a bad outcome for the press and for the public. The phone records reveal the identities of lots of sources having nothing to do with the leaks. The appeals court’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.

Are you following what's going on here? Patrick Fitzgerald and the grand jury are voluntarily jumping through incredible hoops to get this evidence. They can't use the means that would be most direct.  They can't use the means that any other potential witnesses in the United States except for the press would have to submit to. The mainstream media has utterly failed to get either Congress or the U.S. Supreme Court to create a federal privilege for reporters to shield their confidential sources — but the DoJ has already given them that protection anyway, and in this very case it's already busy jumping through all of the hoops any conceivable reporter privilege could require.

But says the New York Times — I'm not quoting here, but the accuracy of this paraphrase is inescapable:

That's not good enough. Never mind that it was at our own insistence that you went to the phone records instead of coming directly to us. We insist on having the opportunity for our reporters to defy the law and go to jail after having been subpoenaed directly. You must not deny us our martyrdom as we show our contempt of court! Drag our reporters into court — we insist!

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Oddly enough, when it wasn't editorializing in its own pages, but was instead speaking through its lawyers to the Second Circuit, the NYT did indeed insist that the government seek the least intrusive means of getting this information — but proceeded to do everything possible to make that less intrusive means impractical. Here's the actual language from the Second Circuit's opinion that the NYT characterizes (with remarkable disrespect bordering on blog-like snark) as being "disingenuous" (footnote and case citations omitted, boldface mine):

The centrality of the reporters' evidence to the investigation is demonstrated by the Times' echoing of the district court's understandable view that some or many of the phone records sought are not material because they do not relate to the investigation and may include reporters' sources on other newsworthy matters. The Times seeks to add to that argument by stating that the government has not exhausted available non-privileged alternatives to the obtaining of the phone records.

This argument is more ironic than persuasive. Redactions of documents are commonplace where sensitive and irrelevant materials are mixed with highly relevant information. Our caselaw regarding disclosure of sources by reporters provides ample support for redacting materials that might involve confidential sources not relevant to the case at hand. In the present case, therefore, any reporters' privilege — or lesser legal protection — with regard to non-material sources can be fully accommodated by the appropriate district court's in camera supervision of redactions of phone records properly shown to be irrelevant.

However, the knowledge and testimony of the reporters does not have a reasonably available substitute in redacting the records because it is the content of the underlying conversations and/or other contacts that would determine relevancy. Redactions would therefore require the cooperation of the Times or its reporters, or both, in identifying the material to be redacted and verifying it as irrelevant, or in credibly disclosing the reporters' source(s) to the grand jury and obviating the need to view in gross the phone records.

In short, the only reasonable unavailed-of alternative that would mitigate the overbreadth of the threatened subpoena is the cooperation of the reporters and the Times. We fully understand the position taken by the Times regarding protection of its reporters' confidential communications with the source(s) of information regarding the HLF and GRF asset freezes/searches. However, the government, having unsuccessfully sought the Times ' cooperation, cannot be charged by the Times with having issued an unnecessarily overbroad subpoena. By the same token, the government, if offered cooperation that eliminates the need for the examination of the Times ' phone records in gross, cannot resist the narrowing of the information to be produced.

I love that studied understatement: "more ironic than persuasive." Boiled down, this is the Second Circuit saying to the NYT: Guys, we're already making them use the least intrusive means available, just like you demanded. Now you're complaining that by using that means (getting evidence through documents instead of direct subpoenas for the reporters' oral testimony), they'll get other, unrelated confidential information. But they're willing to forgo that extra info if you'll just sort it out of the stack, and if you won't, then that's just your own tough luck, because there's just no other, less intrusive way for them to get what they absolutely do need.

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So who's being disingenuous? Who ought to have anticipated that their phone records might be subpoenaed? Who ought to have expected that if those phone records were subpoenaed, they'd show other calls besides the ones from whoever tipped off the NYT about these two raids?

And who thinks they're so far above the law that the prosecutors and the courts owe them an opportunity to be martyrs, notwithstanding the fact that they've demanded — and already gotten the benefit of — special rules that apply to nobody else?