Tuesday, August 10, 2004

Novak and Pincus, Come On Down 

According to the Washington Post, Time magazine is appealing the court order that "confines" reporter Matthew Cooper -- and fines him a K a day -- until he agrees to testify before the Plame grand jury. (NBC's Tim Russert ducked contempt charges by answering "limited questions" from special prosecutor Patrick Fitzgerald this past weekend.) But today's big news is that:
Lawyers involved in the case said it appears that Fitzgerald is now armed with a strong and unambiguous court ruling to demand the testimony of two journalists -- syndicated columnist Robert D. Novak, who first disclosed the CIA officer's name, and Washington Post reporter Walter Pincus, who has written that a Post reporter received information about her from a Bush administration official.

Pincus was served with a subpoena yesterday after Hogan's order was unsealed.

In their statement, NBC officials said [Tim] Russert agreed to the interview after first resisting on First Amendment grounds. NBC lawyers reached an accommodation with the prosecutor in which Russert "was not required to appear before the grand jury and was not asked questions that would have required him to disclose information provided to him in confidence."

Washington Post reporter Glenn Kessler agreed to a similar interview with Fitzgerald's office earlier this summer. In both Kessler's case and Russert's, prosecutors' questions concerned conversations the reporters had in early July 2003 with Lewis I. "Scooter" Libby, chief of staff for Vice President Cheney. Both reporters have said they told Fitzgerald's staff that Libby did not disclose the identity of the CIA employee, Valerie Plame, to them.

Fitzgerald has shown a continuing interest in Libby, witnesses have said, but it now appears that his reasons may be more complex than was first apparent. Libby has signed a waiver allowing reporters to tell the prosecutor whether he disclosed Plame's name to them. Prosecutors have e-mails and phone records showing his contacts with reporters, and witnesses have said they are interested in a story Cooper wrote last summer in which Libby was interviewed.
We are sure you join us in wondering why every member of the White House staff has not yet followed Mr. Libby's excellent example by volunteering to sign a confidentiality waiver -- especially considering the President's frequently-expressed desire to "get to the bottom of this."

UPDATE: Billmon gets Byzantine as only Billmon can:
But, if Libby also waived confidentiality for his little chat with Russert, why did Big Tim have to be threatened with contempt to force him to appear before the grand jury? Why all the talk about "avoiding a protracted court fight"?

Did Time and Cooper also receive a confidentiality waiver from Libby - but decide to fight the subpoena anyway, on the general principle that reporters don't talk to prosecutors about their sources? If so, then the Supreme Court may soon have a chance to clarify its muddled 1972 ruling on journalistic privilege (a limited version of which may or may not exist, depending on the circumstances and the circuit.) Given the current court's general proclivities, the result isn't likely to be a glorious victory for the Fourth Estate.

Froomkin interprets the story as providing at least circumstantial evidence of Libby's innocence. Before jumping to that conclusion, however, it's seems important to know exactly what Libby claims was said during his conversations with Russert and Kessler (and, presumably, Cooper.)

Could it be that the prosecutors have already established that Cheney's chief of staff disclosed Plame's name and covert status at some point, but that Libby claims he learned that information not from a classified source, but from other reporters (in other words, that Plame's identity was already circulating on the Washington grapevine even before he got involved)?

If so, then Russert and Kessler actually may have undermined Libby by failing to corroborate his cover story - something the prosecutors may not have been at great pains to explain when they questioned the two journalists.

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