Plame Game Enters Bottom of 9th Inning

By: William E. Jackson, Jr. On Wednesday, reports emerged that special prosecutor Patrick J.
Fitzgerald--who has been investigating whether officials in the executive office of the president revealed the identity of covert CIA operative Valerie Plame--claims in a court document to have finished his investigation months ago, except for questioning two reporters who have refused to testify.

This information suggests that syndicated columnist Robert D. Novak, whofirst published the name of the CIA officer in July of 2003, has already spoken to investigators or the federal grand jury about his sources for that report. Legal sources have speculated--as reported in E&P of March 23 ("Plame Case May End With Criminal Going Free and 'Witnesses' Jailed")--that no crime will be proven and no criminals indicted in the executive office of the president, under the Intelligence Identities Protection Act.

However, "witnesses" to the alleged crime, such as Time magazine's Matthew Cooper (who wrote about Plame) and Judith Miller of The New York Times (who did not) may be made to serve their jail sentences for contempt of court for refusing to divulge their confidential sources. Of course, it's possible that Fitzgerald believes that they can still provide corroborating evidence of a
crime having been committed by government officials under investigation that, in turn, would allow him to finally charge someone--at least with perjury for giving conflicting information to the special prosecutor.

One of the first reporters to be subpoenaed in the case said to me today: "I do not believe it means things are over since whatever is
finallly said by Miller or Cooper could create leads elsewhere."
That assumes they will testify to avoid jail.

As argued by Victoria Toensing and Bruce Sanford in a brief filed with the district court, the 1982 Intelligence Identities Protection Act was specifically crafted to be used in limited circumstances, because Congress wanted to "exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government" would be chilled.

The alleged proof of the respective roles of Cooper and Miller in the Plame case presumably is found in the eight redacted pages of an appeals court document. This secrecy may actually be protecting Miller from exposure of her actions in an extra-journalistic capacity. It also provides joint counsel Floyd Abrams with a legitimate "denial of due process" argument on appeal, which may be more convincing--and successful--than arguing "reporter's privilege," in this case.

In reality, did Miller actually plan to write about Valerie Plame in the summer of 2003 or later, based on her own confidential sources? It is my contention, based on conversatons with legal sources, that she basically was a "carrier," around Washington, of the rumor about Plame's real identity, but not a reporter actively covering a story. She was, in this view, both a source for, and a witness to, disclosure by sources of Plame's identity. This would explain why Fitzgerald reeled her in with the last subpoena issued to a reporter.

It is a perfect illustration of the comparison offered by Jay Rosen, the academic/media critic, in a note sent to me: "You are trying to identify 'journalist' by what someone is doing. Miller and Abrams think 'journalist' is who Judy Miller is."