Rovian Replaces Orwellian: When A Waiver Is Not A Waiver

The Washington Post has the latest on Patrick Fitzgerald's continuing efforts to get testimony from Cooper & Miller. Fitzgerald gets it right when he notes that Cooper & Miller's seek a broader right to protect confidentiality than afforded lawyers, the president and law enforcement officials. He states: "Journalists are not entitled to promise complete confidentiality -- no one in America is."

But what really caught my attention is that Fitzgerald is contending that Cooper's and Miller's source(s) have waived any right to confidentiality. So why aren't they talking? I suspect its because Rove is engaging in a bit of gamesmanship. He's telling the prosecutor that he's waiving confidentiality for publicity's sake, but he is not telling Cooper & Miller he is waiving confidentiality. Part of protecting a source is not giving the source up when he or she publicly denies being the source or engages in other deceptive conduct regarding the leak. Rove would certainly know this and would know that Cooper and Miller understand these rules as well.

Bill Israel also provides a great analysis as to why this is the case to which a privilege should not apply and why, in fact, applying a privilege here actually does damage to the First Amendment.

Finally, how in the world did the Post come up with this "woe is me" hand-wringing photo of Cooper? Is Cooper intentionally striking this pose? It strikes me as all too affected.

UPDATE ON 07/06/05: It appears the NYT has confirmed my suspicions regarding Rove's gamesmanship:

Mr. Cooper's decision to drop his refusal to testify followed discussions on Wednesday morning among lawyers representing Mr. Cooper and Karl Rove, the senior White House political adviser, according to a person who has been officially briefed on the case.

Mr. Fitzgerald was also involved in the discussions, the person said.

In his statement in court, Mr. Cooper did not name Mr. Rove as the source about whom he would now testify, but the person who was briefed on the case said that he was referring to Mr. Rove and that Mr. Cooper's decision came after behind-the-scenes maneuvering by his lawyers and others in the case.

Those discussions centered on whether a legal release signed by Mr. Rove last year was meant to apply specifically to Mr. Cooper, who by its terms would be released from any pledge of confidentiality he had made to Mr. Rove, the person said.