Playing nice: President Bush gave the special counsel all he wanted--which the press, among others, may regret.

Remember protective-function privilege? Mother-daughter privilege? Bookstore-customer privilege?

In case you don't, all were novel but ultimately discredited legal defenses asserted by the Clinton White House and its allies in 1998, as the president tried to fend off a federal criminal investigation led by independent counsel Kenneth Starr. Used in conjunction with some legitimate but inappropriate-to-the-circumstances defenses, like executive privilege and lawyer-client privilege, they were part of a wall of obstruction built by the president in an effort to stop the investigation in its tracks.

Litigation over those issues dragged on for months. And while the president's lawyers tied up the investigation in court, his surrogates mounted a ferocious public-relations attack in the media. Early on, for example, one White House source told the Wall Street Journal that the Clinton forces planned to portray Starr as a "nicotine-stained tobacco lawyer." From there, things went steadily downhill.

And that wasn't all. Many of the Clinton figures questioned by Starr's grand jury formed a joint defense agreement, a tactic sometimes seen in organized-crime cases, in which they shared among themselves information from their respective testimonies--in an effort to tell prosecutors as little as possible. On every front, Clinton organized his underlings to resist the investigation.

That was then. This is now. For the past 22 months another White House, the Bush White House, has been involved in another federal criminal investigation, this one under prosecutor Patrick Fitzgerald. And what has been perhaps most remarkable about this investigation, from its inception on December 30, 2003, all the way to the indictment of top Cheney aide Lewis Libby on October 28, 2005, is the utter absence of Clinton-style defense maneuvers by the White House.

As far as we know, no administration figure has cited executive privilege, attorney-client privilege, or any nonexistent privileges. As far as we know, no one has formed a joint defense agreement. And we can say for sure that neither the president nor his surrogates have conducted a public-relations campaign against Fitzgerald.

"One thing you don't hear much about, at least with respect to President Bush, is that he has been exemplary in not attacking the prosecutor, in not making privilege claims, and in not getting credit for it," says Sol Wisenberg, a former prosecutor in the Starr office. "There is absolutely no comparison [to 1998], except to say that the Clinton White House was engaged in delaying tactics at every turn, and, from what we can tell, the Bush administration has been entirely the opposite."

While that is certainly laudable, in some Washington circles there is a nagging question being asked these days: Has the Bush White House actually cooperated too much with Fitzgerald, so much so that future administrations might be harmed?

The question is not whether Bush officials should have engaged in Clinton-style tricks; that should not have been done then, and should not be done now. Instead, the question is whether, by forcing staffers to sign waivers releasing reporters from any pledges of confidentiality regarding the CIA-leak affair, the White House has set a terrible precedent both for future presidents and for the press. The way in which George W. Bush acceded to Fitzgerald's demands virtually assures that there will be more, and perhaps increasingly intrusive, leak investigations in the years to come.

That is a real change from the way things have been. It has long been conventional wisdom in Washington that leak investigations don't work. But this one did. And the reason it worked was that Fitzgerald, with the president's cooperation, set up what was in effect a pincer operation. On one side, at Fitzgerald's request, the president told White House officials that they must sign the waivers (which were written by Fitzgerald). And on the other side, Fitzgerald told the press that, since White House officials had waived confidentiality, journalists would have to testify about their sources or face jail time.

Fitzgerald thus got inside the official-source conversations that are a staple of life in Washington. And then he leveled perjury, obstruction-of-justice, and false-statement charges against Libby, based in large part on the accounts of the reporters who testified (if the charges are accurate, Libby appears to be the only person who disregarded the president's admonition to cooperate fully with Fitzgerald). That should be enough to make a lot of people, both reporters and sources, plenty nervous.

"I think that one of the big issues that has gotten lost here is the use of these waivers," says Tom Rosenstiel, a former Los Angeles Times reporter who now directs the Project for Excellence in Journalism. "They are potentially very dangerous and coercive, and I think the notion that a special prosecutor could come into an administration and insist that people sign these waivers is really chilling--and something that citizens should be very worried about."

Of course, Fitzgerald likely couldn't have gotten the waivers without the president's assent. Should Bush have refused to order his aides to sign? "As a journalist, frankly, I wish that he had," says Rosenstiel.

It's true that there is no absolute privilege for reporters that outweighs the needs of a criminal investigation--just ask the various journalists across the country who have gone to jail. Still, in the past prosecutors in Washington have been hesitant to force the issue. In fact, Justice Department guidelines direct prosecutors to exhaust all other sources of information before turning to reporters. Usually, that has meant staying away. But not for Fitzgerald.

"Journalists' privilege has been a paper tiger, and it was shown to be a paper tiger in this case," says Stanley Brand, a well-known Washington attorney who often defends high-profile Democrats. "All Fitzgerald did was really pursue what the law already entitled him to pursue. He was hard-nosed about that. A lot of prosecutors would step back from subpoenaing the press."

No doubt some of the president's supporters might be inclined to argue that at least some journalists got what they deserved. After all, it was the New York Times that on December 31, 2003, the day after Fitzgerald was appointed, published an editorial with the headline, "The Right Thing, at Last." The paper wrote approvingly that "after an egregiously long delay," the Bush administration had finally appointed a special counsel for the CIA-leak investigation.

As the probe dragged on, even some defenders of press prerogatives expressed frustration at seeing reporters, like Judith Miller, refusing to name their confidential sources. Geneva Overholser, formerly of the Times and the Washington Post, and now of the University of Missouri journalism school, argued that the "cardinal rule" of journalism--that one should never disclose the identity of a confidential source--was "neither as wise nor as ethical" in the CIA-leak case as it was in others. The reason? The leakers in the CIA case weren't really acting in the "public interest," as Overholser defined it.

But Fitzgerald plowed ahead. And now, in an area in which there was a certain amount of deference given to journalists, there might well be none. Is that really what the guiding lights of the press wanted? "I think the notion that some people have argued that this is a different kind of leak, that this was not a whistleblower's revealing something in the administration that was inappropriate or abuse, that this was high-ranking officials using confidentiality for political reasons to retaliate against a critic--that may be true," says Rosenstiel. "But I don't believe that it's okay for journalists, from a legal standpoint, to say, well, that's a different kind of leaking, I don't like that, so I'm released from my pledge of confidentiality."

That is where things now stand. And one thing is pretty easy to predict: Someday, the precedent established by the CIA-leak case will come back to haunt another administration--and another group of journalists--in some new, completely unrelated investigation. That's what happened when the old independent-counsel law, praised by Democrats when it was used against Ronald Reagan and George H. W. Bush, ended up nearly sinking Bill Clinton. And that is what will happen with the type of "special counsel" represented by Patrick Fitzgerald. In the long run, it might have been better if George W. Bush had not been quite so accommodating.