A prosecutor’s hunt for Bush administration leakers of classified information has produced no indictments after almost two years, and legal experts say it’s very possible the only person jailed will be a reporter who never wrote a story.
In pursuit of the officials who revealed a CIA officer’s identity to reporters, special counsel Patrick Fitzgerald has gone to the highest reaches of the White House, interviewing President Bush and Vice President Dick Cheney and their closest aides, including deputy White House chief of staff Karl Rove.
Rove’s name resurfaced in the past week, with his lawyer saying that Time magazine reporter Matthew Cooper spoke to him in the days before the name of CIA undercover operative Valerie Plame was first revealed by columnist Robert Novak. The Bush White House has denied since the issue first came up in 2003 that Rove was involved.
The outcome of Fitzgerald’s investigation could depend on what Cooper tells prosecutors, who already have the Time reporter’s notes and e-mails identifying a source.
Cooper’s employer, Time Inc., surrendered the material to Fitzgerald last week. On Wednesday, Cooper agreed to testify after saying his source had released him from his promise to stay silent about the source’s identity, while Judith Miller of The New York Times was led away to jail when she refused.
The key to a criminal case, a number of former federal prosecutors say, would seem to be Novak.
Novak refuses to say whether he is cooperating with Fitzgerald. Novak’s attorney, James Hamilton, also won’t comment.
Novak identified Plame as a CIA operative eight days after her husband, former U.S. Ambassador Joseph Wilson, wrote an opinion piece in the New York Times. Wilson’s piece suggested the Bush administration had manipulated intelligence to exaggerate the Iraqi threat on weapons of mass destruction in the run-up to the U.S. invasion.
Even if Novak has given away his sources, Fitzgerald may feel that he needs testimony from corroborating witnesses to make a prosecutable case, says Zachary Carter, a former U.S. attorney for the eastern district of New York.
The prosecutor may believe that “given the possibility of a credibility contest between the accused and the reporter, that he would need more than one reporter-witness to establish what was said and by whom,” said Carter.
If Miller doesn’t talk, she will be released in October when the grand jury investigating the matter expires. She told her newspaper about her trip to jail.
“They put shackles on my hands and my feet,” The New York Times reported Thursday, quoting Miller after her first few hours in jail. “They put you in the back of this car. I passed the Capitol and all the office buildings I used to cover. And I thought, `My God, how did it come to this?'” Miller said that the jail’s staff were professional and courteous.
Assuming Miller never agrees to testify, “is Fitzgerald going to throw up his hands? That seems unlikely,” said Carter, the former U.S. attorney in New York.
Fitzgerald would not be putting in all this effort if he thought it was something that had no potential, said Jonathan Feld, a white-collar criminal lawyer in Chicago, where Fitzgerald is U.S. attorney.
“Whether what he gets meets the appropriate level of evidence only he and his staff can say,” said Feld, a partner at the law firm of Katten Muchin Rosenman.