Monday :: Nov 28, 2005

Fitzgerald, TIME and Source Confidentiality


by eriposte

Regarding the latest news that Time magazine's Viveca Novak will be interrogated by Patrick Fitzgerald regarding her conversation(s) with Rove's lawyer Robert Luskin, in comments to a post by Emptywheel Tom Maguire asks:

Does anyone know, or care, why TIME is not arguing any source confidentiality issues? Their story is silent on that point - are they just an arm of the Fitzgerald investigation now? Will that be true of TIME on all government cases going forward?

Why should TIME argue source confidentiality when the name of the source (Robert Luskin) has been published by TIME previously? Also, unless the conversations with the source were off the record, the content of those conversations is not subject to source confidentiality either. Luskin spoke to TIME because he wanted to get a load of BS off his chest and into print. So, everything he said that was not off the record is totally NOT subject to source confidentiality.

On the same issue, Swopa says:

Whether or not there's more to Novak's testimony than is being publicly admitted, though, Plame mystery buffs can knock themselves out trying to figure out how it fits into Justice Department guidelines -- which state that reporters should only be pursued as witnesses in last-resort situations where their testimony is crucial to determining guilt or innocence. Assuming that Fitzgerald isn't getting a little casual about following those rules, what could he have uncovered so belatedly that would qualify Viveca Novak as possessing such make-or-break proof?

The same points above apply here. I don't see how the Justice Department guidelines even apply here. TIME was not affirmatively trying to protect the name of the source (Robert Luskin) because Luskin permitted them to publish his name as the source of various comments. Luskin was speaking on the record (at least as far as the comments that were published in TIME's article(s)) - so there is no issue of prosecutorial overreach. Unless Luskin said something that was off the record - and Fitzgerald was after that, there is no "last-resort" argument to be made here.

Finally, if Fitzgerald is after what Viveca Novak told Robert Luskin, then let's remember that what reporters say to their sources is not covered under "source confidentiality".

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