As Fitzgerald later summarized Cooper’s testimony, “Libby did not say he had heard the information from reporters,” and he “neither vouched for the accuracy of the information nor expressed doubts.” Nor did he say he didn’t know Wilson had a wife. Unknown to Cooper, and contrary to his reassurance to Libby, he had flatly contradicted Libby’s sworn account.
Cooper had indicated he had two other sources besides Libby, so Fitzgerald told Abrams he needed more testimony from Cooper as well as his notes. Cooper and his lawyers were disappointed, hoping that the Libby testimony would be the end of it. They knew that Cooper’s testimony about Rove was potentially damaging. Should Cooper approach Rove for a specific waiver, as he had Libby?
At this juncture, Cooper,
Time
, and their lawyers decided it would be inappropriate to approach Rove on grounds that to do so would be inherently coercive. Given that they’d already done so with Libby, the logic of that decision is hardly self-evident.
Time
’s lawyers argued at the time that Cooper’s Libby testimony was exculpatory, while the Rove testimony would be incriminating. But just as they had no basis for knowing if Cooper’s testimony was exculpatory for Libby, they couldn’t know if his testimony was incriminating for Rove. They weren’t privy to Rove’s prior testimony. Nonetheless,
Time
and Cooper dug in.
Having reached an impasse, on September 13 Fitzgerald issued another, broader subpoena calling for testimony and documents “between Matthew Cooper and official source(s)” related to “any affiliation between Valerie Plame Wilson and the CIA.” Time Inc. was also subpoenaed for documents.
On August 12 and 14 the grand jury issued similar subpoenas to Judith Miller of the
New York Times
(but not the
Times
itself, which said it didn’t have any relevant documents in its possession). With guidance from
Times
lawyers, Miller authorized Floyd Abrams to find out from Libby’s lawyer, Tate, the circumstances of Libby’s waiver and whether it was voluntary or coerced. As with Cooper, there seems to have been scant effort to determine from Miller what her actual promise to Libby had been. His request to be identified only as a “former Hill staffer” suggests a not-for-attribution arrangement, but not necessarily a promise of confidentiality if subpoenaed. But as with Cooper, that was Miller’s interpretation of their arrangement. She felt he’d made it clear from their earliest contacts that Miller was never to identify him as a source.
The ensuing conversation between Tate and Abrams has been the subject of bitter disagreement. Tate’s view is that he assured Abrams that the waiver was voluntary and encouraged Miller to testify. Abrams told him that Miller’s refusal to do so was based on journalistic principles that had nothing to do with Libby. But in a subsequent letter to Tate, Abrams flatly denied that account:
You did not say that Mr. Libby’s written waiver was uncoerced. In fact, you said quite the opposite. You told me the signed waiver was by its nature, coerced, and had been required as a condition for Mr. Libby’s continued employment at the White House. . . . You persuasively mocked the notion that any waiver signed under such circumstances could be deemed voluntary.
This seems odd, given that the same waiver had been deemed voluntary for purposes of Cooper’s testimony. (Abrams didn’t respond to requests for comment.)
In any event, Miller now knew that her testimony would be damaging to Libby, although she had no way of knowing how damaging. She would testify, as her notes indicated, that Libby had disclosed Wilson’s wife’s name and identity to her. She concluded that despite the language of the waiver and whatever double-talk Abrams had heard from his lawyer, Libby did not want her to testify. She would fight the subpoena, and the
Times
honored her decision.
Negotiations with Fitzgerald soon broke down. The standoff moved into the courts.
T
hat same month, James Comey announced his resignation to join defense contractor Lockheed Martin as its general counsel. At a farewell dinner at a Thai restaurant, Fitzgerald asked him to step outside on the patio at the rear. True to his word, Comey hadn’t interfered in any way with Fitzgerald’s investigation, but Fitzgerald had given him periodic briefings. Comey was startled by the looming First Amendment showdown; he hadn’t anticipated it, although perhaps he should have. He’d thought the case would be wrapped up in six months; it was going on two years.
“When are you no longer Deputy AG?” Fitzgerald asked.
“Midnight,” Comey said.
“Then this will be our last conversation [about the leak case],” Fitzgerald said.
Fitzgerald outlined the case against Armitage: He had by his own admission identified Valerie Wilson as a CIA agent to Novak. He claimed not to know she was covert or even how he knew the information, but he had read the classified INR report identifying her, which was almost certainly his source. What did Comey think?
It was a tough call. Armitage had surely violated the spirit of the protected identities act. But the letter of that law set a very high bar: knowledge of covert status and that the CIA was concealing her identity. Could that knowledge be proved beyond a reasonable doubt? Since there had never been a prosecution under the act, the standards were uncertain. And while Armitage may have been evasive in the details of his testimony, attempting to minimize his role, he had truthfully admitted telling Novak. Comey concluded that Armitage should not be charged, although subsequent developments could always change that.
R
ove had already spent two days testifying before the grand jury in February, an experience that left him, he later recalled, “mentally beaten to a pulp.” He’d largely repeated his earlier account to Eckenrode, and described the phone call from Novak and their subsequent conversations, as well as his conversation with the president. Fitzgerald had also asked if Rove had spoken to
Time
’s Matt Cooper; Rove said he didn’t recall talking to him.
That fall, Rove was again subpoenaed to the grand jury, and this time Fitzgerald told his lawyer that his status had changed. Rove was now a “subject.” After his last appearance, the White House had produced more e-mails and other documents related to Rove. Luskin was sitting on the floor of his office sifting through three or four boxes of records, trying to immerse himself in Rove’s correspondence, when he came across an e-mail dated July 11, 2003, to Stephen Hadley:
Matt Cooper called to give me a heads-up that he’s got a welfare reform story coming. When he finished his brief heads-up, he immediately launched into Niger/isn’t this damaging/hasn’t the president been hurt? I didn’t take the bait but said, if I were him, I wouldn’t get TIME far out in front on this.
This clearly meant that Rove had talked to Cooper at a critical time in the Wilson controversy–something Rove hadn’t recalled in his earlier testimony. It was, Luskin later recalled, a “holy shit moment.”
Rove testified again on October 15, and at the outset said he wanted to “correct the record.” He said he still didn’t recall speaking to Matt Cooper, but had discovered the e-mail indicating he had. Rove later wrote, “It was as if I’d detonated a bomb in the shabby little room.” Fitzgerald was evidently unaware of the e-mail (though it had been produced by the White House along with all Rove’s e-mails). The lawyers convened in the hallway, out of hearing of the grand jurors, and Fitzgerald seemed so upset that he was “quivering,” Luskin later said. But Rove still recalled nothing about his conversation with Cooper, other than the reference in the e-mail to welfare reform.
G
iven the timing of Rove’s conversation with Cooper–July 11, the day before he spoke with Libby and already knew about Wilson’s wife–it seemed likely that Rove was one of Cooper’s other sources, even though Rove claimed not to remember saying anything about Wilson’s wife. This made Cooper’s testimony even more important.
On February 15, 2005, the U.S. Court of Appeals for the District of Columbia Circuit upheld the subpoenas and contempt citations against Cooper and Miller in a sweeping victory for Fitzgerald. In many ways the opinion illustrated the gulf that had developed between many members of the press and their lawyers, with their inflated sense of their special legal status and privileges, and the judiciary, the Justice Department, legislators–just about everyone else. The media chorus egging on Cooper and Miller seemed to take an absolute position–that no one, not even a grand jury investigating a crime, could order a reporter to testify if to do so would violate a promise of confidentiality.
But did that absolutist stand really make any sense? Did a promise of “not for attribution” or “background” without being more explicit mean that reporters would defy court orders and engage in civil disobedience? Even if such agreements were deemed contracts, the law offers no protection, since contracts contrary to public policy, and specifically those that “pervert or obstruct justice,” are void and unenforceable. Otherwise every Mafia pledge of silence would stand in the way of testifying.
Reporters, of course, represent a higher, and to them, even sacred cause: the First Amendment. But even free speech has been subjected to many exceptions deemed in the public interest. (Perjury itself is, of course, a restriction on free speech.)
The appeals court judge most sympathetic to the press, Judge David S. Tatel, made short shrift of that argument: “Protection for source identities cannot be absolute. Leaks similar to the crime suspected here (exposure of a covert agent) apparently caused the deaths of several CIA operatives in the late 1970s and early 1980s, including the agency’s Athens station chief. Other leaks–the design for a top secret nuclear weapon, for example, or plans for an imminent military strike–could be even more damaging, causing harm far in excess of their news value. In such cases, the reporter privilege must give way.” The
Times
itself conceded such a privilege could not be absolute.
The issue that consumed the reporters themselves–whether the waivers were voluntary–was deemed irrelevant by all three judges. Two didn’t even address the issue, because they flatly rejected any reporters’ privilege. Judge Tatel wrote that to the extent a common-law privilege might exist, “only reporters, not sources, may waive the privilege,” explaining that “because the government could demand waivers–perhaps even before any leak occurs–as a condition of employment, a privilege subject to waiver may, again, amount to no privilege at all, even in those leak cases where protecting the confidential source is most compelling. . . . The reporter privilege safeguards public dissemination of information–the reporter’s enterprise, not the source’s.”
Tatel wrote a concurring opinion, so it may have little standing as precedent. Still, it outlines an approach that is probably as favorable to the press as any press advocate could reasonably hope for. By this logic, Cooper and Miller were free to waive the privilege, much as Novak had determined that it made no sense to protect his sources once they had identified themselves and Fitzgerald knew who they were. But if the reporters decided they could not waive the privilege, they (and their lawyers) then had to weigh the news value of the disclosure (in this case that Wilson’s wife was a CIA agent) against the importance of law enforcement. As Judge Tatel wrote:
The question in this case is whether Miller’s and Cooper’s sources released information more harmful than newsworthy. If so, then the public interest in punishing the wrongdoers–and deterring future leaks–outweighs any burden on news gathering, and no privilege covers the communication. . . .
The
New York Times
and
Time
didn’t focus on the importance of the information whose source they were seeking to protect. Had they done so, the answer surely would have been: not very. The
Times
never ran a story.
Time
ran it on its website, after Novak had already identified Plame. “The law can’t distinguish between good leaks and bad,” Floyd Abrams had told the
New York Observer
. But that’s exactly what Judge Tatel said the press itself must do. Instead the
Times
and its lawyers saw the issue strictly as a question of a reporter’s promise. As
Times
executive editor Bill Keller told the
Washington Post
, “The simple fact is that Judy made a promise to a source that she would protect his anonymity. . . . She feels that, if she breaks that pledge, she will compromise her ability to do her job in the future.”
Miller, Cooper, and Time Inc. appealed to the Supreme Court, which on June 27 declined to hear the case. Judge Hogan later said that not a single justice wanted to reconsider the ruling. Their appeals exhausted, the question now for both news organizations was whether their reporters would defy the ruling and engage in civil disobedience, punishable by jail. Time Inc. faced the prospect of a $1,000-a-day fine. (Since the
New York Times
itself didn’t receive a subpoena, it wasn’t a defendant.)
Time Inc. editor in chief Norman Pearlstine called the decision “the most difficult I have made in thirty-six years in the news business.” He replaced Floyd Abrams, whose legal advice had brought the company to this juncture, and on June 30, Time announced that it would comply with the subpoena. “The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments,” Time said. “That Time Inc. strongly disagrees with the courts provides no immunity. The innumerable Supreme Court decisions in which even presidents have followed orders with which they strongly disagreed evidences that our nation lives by the rule of law and that none of us is above it.”