One defense lawyer involved in the case said the judge's ruling gives Fitzgerald significant leverage to compel testimony from Novak and Pincus. "This is now open season on these reporters," the lawyer said. The court's ruling establishes unequivocally that "in a grand jury context, reporters don't have a privilege," the lawyer said.
It can be a felony to intentionally disclose an undercover CIA officer's identity.
Media lawyers involved in the case have sought to avoid a showdown in the court of appeals because their chances of winning appear remote. Citing a 1972 Supreme Court case, Branzberg v. Hayes, Hogan wrote in his opinion that the high court has found that "there is no First Amendment privilege exempting members of the press from appearing before grand juries upon issuance of a valid subpoena."
Hogan cited language from the Branzberg decision in which the justices wrote that "we cannot accept the argument that the public interest in possible future news about crime . . . must take precedence over the public interest in pursuing and prosecuting those crimes."
He wrote that the information the prosecutor is seeking from Cooper and Russert "is very limited, all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt."
Time Managing Editor Jim Kelly said reporters must be able to protect confidential sources. His magazine will file an appeal today, he said, and pursue it "if it means taking it all the way up to the Supreme Court."
NBC News President Neal Shapiro said: "Compelling reporters to reveal their newsgathering to government investigators is, in our view, contrary to the First Amendment's guarantee of a free press."
NBC has said previously that Russert was "not a recipient" of Plame's name. A statement from the network yesterday said "the Special Prosecutor's questions addressed a telephone conversation initiated by Mr. Libby and focused on what Mr. Russert said during that conversation. Mr. Libby had previously told the FBI about the conversation and had formally requested that the conversation be disclosed."
NBC officials said that at the time of the conversation Russert "did not know Ms. Plame's name or that she was a CIA operative" and "he did not provide that information to Mr. Libby." Network representatives would not elaborate on Fitzgerald's interest in learning whether Russert disclosed information to Libby.
William K. Marimow, managing editor of National Public Radio News, said he would counsel reporters to keep commitments to confidential sources, even if they are likely to spend time in jail.
"I would say to them: When you make a promise, you keep it," he said. "Keep your promise and we will do everything humanly possible to protect your right to do that."
Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, said Hogan's ruling is troubling because it allows prosecutors to make their case by trying force reporters to violate confidentiality commitments, rather than by extracting answers from administration officials.
"You just can't tell me none of the people appearing before the grand jury knows who the leaker was," she said.