Special Pleading

Earlier this week, some commentators ridiculed David Brooks -- and rightly so -- for using his New York Times opinion column to promote his worst-seller, On Remainder Tables On Paradise Drive. At least Brooks was upfront about his shameless -- and probably fruitless -- self-promotion.

Yet, the following day, another Times columnist engaged in some self-interested writing without disclosing his apparent conflict of interest. And he hasn't been called on it.

In a column published on November 10, 2004, Nicky "Pistof" Kristof decried court rulings ordering journalists to identify confidential sources and threatening contempt sanctions for disobedience. He calls these orders "an alarming new pattern of assault on American freedom of the press." The pissy one wrote as follows:

But now similar abuses are about to unfold within the United States, part of an alarming new pattern of assault on American freedom of the press. In the last few months, three different U.S. federal judges, each appointed by President Ronald Reagan, have found a total of eight journalists in contempt of court for refusing to reveal confidential sources, and the first of them may go to prison before the year is out. Some of the rest may be in prison by spring.

Pistof takes up the cases of Judy Miller and (apparently) the New York Times reporters in the matter of Wen Ho Lee.

Then there's Patrick Fitzgerald, the overzealous special prosecutor who is the Inspector Javert of our age. Mr. Fitzgerald hasn't made any progress in punishing the White House officials believed to have leaked the identity of the C.I.A. officer Valerie Plame to Robert Novak. But Mr. Fitzgerald seems determined to imprison two reporters who committed no crime, Judith Miller of The New York Times and Matthew Cooper of Time, because they won't blab about confidential sources.

...

Then there's a third case, a civil suit between the nuclear scientist Wen Ho Lee and the government. Judge Thomas Penfield Jackson held five reporters who are not even parties to the suit in contempt for refusing to reveal confidential sources.

And Pistof mentions a third case involving the NYT.

In yet another case, the Justice Department is backing a prosecutor's effort to get a record of telephone calls made by two New York Times reporters - uncovering all their confidential sources in the fall of 2001.

Kristof's punchline: "But when reporters face jail for doing their jobs, the ultimate victim is the free flow of information, the circulatory system of any democracy."

Of course any journalist who relies on confidential sources has a self-interest in maintaining the confidentiality of sources. But Pistof may have more of an interest than most.

In July 2004, Pistof was sued by Steven Hatfill for writing columns allegedly insinuating that Hatfill had some connection to the 2001 anthrax mailings. (More here and here.) Kristof's columns were based on the allegations of "authorities" speaking "privately." Kristof doesn't name the authorities, and it's unknown whether Kristof promised them confidentiality (although the word "privately" is a bit of a hint).

Which brings us to this October 22 article in the Baltimore Sun:

Justice Department employees involved in the investigation of biological weapons expert Steven J. Hatfill will be asked to sign a form waiving any confidentiality agreements with reporters, a move proposed by his attorneys to help determine the source of government leaks identifying him as a suspect in the 2001 anthrax attacks.

U.S. District Judge Reggie B. Walton, who has criticized government officials for leaks about Hatfill, agreed to the unusual request in court yesterday.

"I am not prepared to leave this at a status quo," Walton said. "I believe Dr. Hatfill has a right to his day in court."

Hatfill's attorney, Thomas G. Connolly, would not say how he plans to proceed once the waivers are circulated, except that he hopes to narrow the list of 100 or more Justice Department officials and journalists they might want to interview. He would not say whether he plans to call journalists to testify.

Hatfill, who worked at a biological warfare lab at Fort Detrick in Frederick, has never been charged and has long denied any involvement in the anthrax mailings, which killed five people and paralyzed the Postal Service. He is suing Attorney General John Ashcroft and other government authorities who publicly named him as a "person of interest," saying his career and reputation were ruined. Hatfill also has filed a libel suit against The New York Times related to opinion pieces written by Pulitzer-Prize-winning columnist Nicholas D. Kristof.

Under Walton's order, Hatfill's attorneys will make a list of news stories that they want to question FBI and Justice Department officials about, and the government will then circulate the list among employees associated with the Hatfill case, allowing them to sign the waiver if they wish.

(The NYT reported on these waivers here, in a patently defensive news story.)

So Hatfill's case is proceeding in much the same way the Plame investigation is proceeding. Either the FBI/Justice officials agree to talk about their "private" discussions with journalists such as Kristof, or they refuse to sign the waiver and Hatfill requests an order compelling the journalists to identify their sources. It doesn't take an Oxford education to see where this is heading. Surely Kristof knew when he wrote his column that Hatfill's attorneys are seeking to discover purportedly private communications between authorities and journalists concerning Hatfill. And surely he anticipates that Hatfill's lawyers intend to question him about his sources for his anthrax articles, either in their case against the government or in the defamation action against him. Any rational person in Kristof's place would be concerned about the possibility of being ordered to testify about his "private" conversations, and about being held in contempt for refusing to do so.

Apparently none of these facts darkened Pistof's spotless mind when he penned his stirring tribute to journalistic self-interest and exemption from the rules of law applicable to the rest of us. Otherwise, he surely would have mentioned them. Right?

(As a postscript, I have no opinion on the merits of Hatfill's claims against Pistof, or the case (if any) against Hatfill with respect to the anthrax killings. The point here is Kristof's failure to acknowledge his significant self-interest in his column about the purported "assault" on a free press.)