THE FITZGERALD BRIEF: I just read the brief filed by Patrick Fitzgerald in Judith Miller's unsuccessful bid to remain free, and I found something in it that is particularly unfortunate.

Journalists are a vexacious group, and we rarely agree on much of anything. Unfortunately, that has come back to haunt Miller. Fitzgerald contends that "a number of journalists, First Amendment scholars and opinion leaders flatly disagree with the position Miller is taking at the behest of the New York Times." He goes on to cite Norman Pearlstine's controversial decision to hand over Matt Cooper's notes.

Fitzgerald highlights the following from Columbia Journalism Review:

Though reluctant to come out and say so publicly, it is clear that many reporters and press advocates are upset that the Times has allowed the Plame case to develop into a potential seminal test of the reporter’s privilege.

The author of this article, Doug McCollam, objects to the way his article was used by Fitzgerald. He explains that "most journalists I spoke with didn't so much disagree with Miller's privilege claim as thought that the facts in the Plame case were unfavorable and unlikely to result in a legal victory for journalism (this proved correct). Given the unfavorable terrain, they thought it wiser for Miller and the Times to try and work something out with Fitzgerald rather than risk establishing a bad precedent on reporter's privilege."

He's right. It was not a great case for a number of reasons, and it's a shame the Times couldn't have figured out a way of resolving it. Fitzgerald has my permission to stick the preceding sentence into one of his briefs, but only if he includes the following sentence, which I used on my website: "The special prosecutor who is handling this case, Patrick Fitzgerald, has acted like a damn fool."