Mr. Libby's attorneys should have some fun with Fitz on this issue. According to the article:
Negotiations between Fitzgerald and the Post resulted in a three-page agreement that listed questions the prosecutor could not ask. In short, the agreement walled off questions about the actual conversations and allowed the reporters to keep their notes—and their promises to not reveal their sources. By September 2004, the Post had reached an agreement with the special prosecutor, and its reporters had complied with Fitzgerald’s requests without revealing sources or violating confidentiality.
Doesn't it just warm the cockles of your heart to know that the fearless prosecutor in this case was able to reach an accomodation with the poor little WaPo in order to allow them to protect the 'anonymous' sources that we've all come to love? The only teeny, tiny problem with the accomodationist position is that it is antithetical to an investigation whose purported purpose is the discovery of all facts surrounding the incident being investigated.
Mr. Libby has also engaged some very sharp and competent attorneys. They are undoubtedly sharp enough to produce briefs concerning discovery issues that are going to bring the Sixth and the First Amendment into sharp conflict. Fitzgerald's accomodation with the WaPo bends over backwards with regard to the First Amendment.
We'll see what the court thinks about his contortions having abrogated the defendants Sixth Amendment rights. How in the world can it be determined that the WaPo agreement may not have prevented discovery of exculpatory material concerning Mr. Libbt? And how in the world can a claim be made that Fitzgerald is prosecuting in good faith when he has kowtowed in this manner to the press?
An investigation that excludes questioning the press about leaking to the press - and especially Pincus - is simply ridiculous.
*Exculpatory authors note: Since IANAL all references to Rights are based upon plain text reading. I lack the necessary training to discern the penumbras of any emanations from either amendment.