Criminal Contempt Could Lengthen Reporter's Jail Stay

Matthew Cooper, a Time magazine reporter also subpoenaed in the case, avoided Miller's fate July 6 by agreeing to testify about his conversations with Rove. But three days earlier, Cooper's attorney, Richard Sauber, said in an interview yesterday, Fitzgerald told him during negotiations over Cooper's testimony that his client could well face criminal contempt charges.

Fitzgerald was playing "hardball" and "was trying to get Matt and Judy to comply with the judge's order," Sauber said, adding that he did not consider the threat "over the top."

"Fitzgerald indicated personally to me that was one of his options," Sauber said of their July 3 conversation. He quoted Fitzgerald as telling him: "I'm going to ask the judge to remind these people they risk criminal contempt and it is certainly an option for me." Sauber said he is "convinced" that Fitzgerald "still might" file criminal charges against Miller.

Abrams said he remains concerned about the same possibility but hopes it will not come to pass. "Any resort to criminal law would constitute a sad, even tragic, escalation of this controversy," he said.

Sometimes the threat of criminal contempt can be a prosecutor's strongest tool to obtain information. If Fitzgerald seeks a criminal contempt finding, the judge could order Miller held for as much as six more months and impose other penalties. Criminal contempt findings are very rare, legal experts said, because prosecutors usually seek them only in extreme circumstances or when a person engages in a pattern of defying the law.

Fitzgerald spokesman Randall Sanborn yesterday declined to comment on Fitzgerald's intentions.

Sauber said the tactic was not unexpected in light of a recent case involving Rhode Island television reporter Jim Taricani, who was convicted in December of criminal contempt for refusing to reveal the name of the person who gave him an FBI videotape in a corruption investigation.

But in this closely held investigation, federal appeals court judges of very different ideological stripes and Hogan have reviewed secret evidence and have agreed that Miller's and Cooper's claims of a right to protect their sources is outweighed by the public interest in investigating a possible breach of national security.

Legal experts who have monitored the public twists of Fitzgerald's investigation say the prosecutor has been relentless in running down every fact, an approach that may increase the chances he would seek criminal contempt.

"I think Judith Miller is in much graver danger than she might be otherwise, because this prosecutor seems to want to pursue every avenue with a vengeance," said Mary Cheh, a professor of criminal law at George Washington University. "I'd be very worried."