U.S. Attorney Patrick Fitzgerald could take it when he was demonized as a heartless Southern prosecutor in the movie that fictionalizes his real-life jailing of New York Times reporter Judith Miller.
What he objected to — he quipped last Saturday during our “debate” over a proposed reporters’ shield law at the American Bar Association convention — was the prissy name they gave his character, played by Matt Dillon.
“I haven’t seen ‘Nothing but the Truth,’” Fitzgerald said, “but I have to tell you: I grew up in Brooklyn. And when the . . . character . . . based upon [you] is named Patton DuBois, that really hurts. I left a message for [Miller’s defense lawyer] Floyd Abrams. I said, ‘I don’t mind you being in the movie and playing the judge and changing the facts to make it a lot more one-sided. But having to be called Patton DuBois, that really hurt.’”
Miller spent months in jail for refusing to reveal the name of a source to Fitzgerald.
And because the sentence imposed on the defendant in the case — Vice President Dick Cheney’s chief of staff, Scooter Libby — was commuted by President Bush, Miller ironically was the only person jailed in the case.
“That’s not my fault,” said the judge in the case, Reggie Walton, who also sat on Saturday’s panel with Fitzgerald and me. Walton sentenced Libby to 2 1/2 years in prison and fined him $250,000 for lying to federal officials about leaking CIA agent Valerie Plame’s identity to the press after her husband criticized the Bush administration.
Criminal cases in which prosecutors order reporters to reveal sources during “crises” of “national security” get most of the press, but Fitzgerald has never hauled a reporter into court here in Chicago.
Journalists here need a shield law because lawyers in civil suits — particularly those working for the City of Chicago — are hauling in reporters to make them give up their notes when they write about, for instance, men who had false confessions beaten out of them by the police.
Thanks to a court case called McKevitt vs. Pallasch, which, sorry, I inadvertently provoked by refusing to turn over tapes of interviews with a witness in a terrorism trial, journalists have few rights to assert when brought into federal court here. We are fine in state court, where a state shield law protects us.
The idea, I argued to Fitzgerald, is that whistleblowers should feel comfortable telling journalists about corruption in the public or private sector so that we can write investigative stories that often result in Fitzgerald’s prosecution of corrupt officials. The fastest way to dry up those valuable leaks, I said, is to send the message to sources that the reporter might later be pressured to give up their names to avoid going to jail.
Fitzgerald said he accepted that argument to a point.
“There are also cases made throughout the country, including here in Chicago, where we haven’t a clue that a crime is being committed, and we pick up the paper and we read about it and the press does a remarkable job, particularly investigative reporters, to expose things to the light of day,” he said. “Reporters are obviously trying to defend the right to know of the public and the right to encourage people to come forward and be honest. . . . At the same time, starting with prosecutors from the criminal perspective, we’d like [to ensure] the public’s right . . . to hear evidence and, if it’s in a grand jury, to know everything they need to know to make an informed decision whether to charge and to charge the right person with the right crime.”
The U.S. House of Representatives passed a version of the shield law that allows journalists to fight subpoenas dealing with both confidential and non-confidential sources. An evolving Senate version of the bill covers only confidential sources (not non-confidential sources such as the men who claimed to have been beaten by cops), and so it would be of no use to reporters in these cases.
The House and Senate versions of the bill also differ on how broadly to define “journalist.” Do bloggers count? President Obama campaigned in favor of a shield law and is expected to sign whatever version can pass both houses.
Walton said he could favor a version of the law with adequate exemptions. Fitzgerald took no stand. Here’s my stand: Rent “Nothing but the Truth.” Yes, it’s a fictionalization. But it persuasively makes the point that jailing journalists is the wrong approach.
As Alan Alda, playing a lawyer, argues before the Supreme Court in the movie: “Imprisoning journalists? That’s for other countries. That’s for countries who fear their citizens, not countries who cherish and protect them.”