Time magazine reporter Matthew Cooper was held in contempt of court a second time yesterday for refusing to reveal confidential source information sought by a federal grand jury investigating the leak of a covert CIA employee's identity.
Chief U.S. District Judge Thomas F. Hogan ordered Cooper jailed for as long as 18 months, but stayed his order until after the case is heard by the U.S. Court of Appeals. Hogan found Time magazine in civil contempt for failing to produce documents and imposed a $1,000-a-day fine on the publication, suspended until after the appeal.
Last week, New York Times reporter Judith Miller was found in contempt of court in the same investigation. Cooper and Time will join her appeal.
It was the second contempt finding for Cooper in the investigation of whether someone in the government illegally disclosed the name and identity of CIA officer Valerie Plame to members of the media.
"As Yogi Berra says, 'It's deja vu all over again,' " Hogan said as he greeted the parties at yesterday's hearing.
The first contempt citation against Cooper was vacated after he agreed in August to provide limited testimony about conversations he had with I. Lewis Libby, Vice President Cheney's chief of staff. Cooper did so at Libby's "personal, unambiguous and unequivocal" urging, said attorney Floyd Abrams, who represents Cooper, Time and Miller. Reporters for The Washington Post and NBC News have also provided limited depositions with Libby's consent after receiving subpoenas.
Cooper told reporters yesterday that he had tried to accommodate special counsel Patrick J. Fitzgerald in agreeing to be deposed about his conversations with Libby, but that Fitzgerald "came back a few days later and asked for everything in my notebook." He and Abrams said Fitzgerald is seeking to question him about other conversations he had in preparing the July 17 article.
During the hearing, Assistant U.S. Attorney James Fleissner told Hogan that prosecutors decided they needed a second subpoena for information because of a new topic that emerged during the first deposition. Prosecutors, he said, have been "deferential" to the media, agreeing to limit questioning to narrow areas.
"It doesn't exactly represent deference to the media to seek to put journalists in jail," Abrams said.
Hogan said the prosecutor has shown him grand jury material that has convinced him of the need to question Cooper further. Hogan has previously cited a 1972 Supreme Court case, Branzberg v. Hayes, in ruling that reporters have no First Amendment protection against appearing before grand juries.
Cooper wrote in a July 17, 2003, online story that government officials had revealed Plame's employment in seeking to cast doubt on the findings of her husband, former ambassador Joseph C. Wilson IV. Wilson, a foreign policy critic of the Bush administration, was sent by the CIA in 2002 to look into whether Iraq had tried to buy uranium from the African country of Niger for its weapons program, but he found no proof.
Plame's identity surfaced in print three days before the Time article, in a syndicated column by Robert D. Novak. Novak wrote that two administration officials told him Wilson was sent to Niger at Plame's recommendation. Neither Novak nor his lawyer has commented on whether Novak has been subpoenaed to testify.