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Inquiry as Exacting As Special Counsel Is

Special counsel Patrick J. Fitzgerald has been lauded for his nonpolitical investigation of the CIA leak case.
Special counsel Patrick J. Fitzgerald has been lauded for his nonpolitical investigation of the CIA leak case. (By Joshua Roberts -- Getty Images)

At least five other reporters -- Miller, Cooper, NBC newsman Tim Russert and Washington Post reporters Walter Pincus and Glenn Kessler -- produced testimony. Members of the media high and low were none too happy to see Fitzgerald demand information from conversations intended to stay private. They also worried that, in his methods, he was setting a dangerous precedent that would make sources less likely to speak up about wrongdoing.

While Cooper and Miller initially refused to cooperate, Fitzgerald made pragmatic accommodations with the others. In the case of Pincus, Fitzgerald structured the testimony to allow him to avoid revealing the name of his source, even though Fitzgerald and the grand jury already knew it. That preserved the reporter's ability to say he had not broken his promise. The name has never been made public.

"The basic thing is he was enormously fair," said Pincus, a veteran national security reporter whose sources waived confidentiality. "There were no threats, just a discussion of how to solve this dilemma. He understood. He never pressured me."

By October 2004, Fitzgerald announced he was "for all practical purposes" finished. The final pieces he wanted were the testimony of Miller and Cooper, who had each discussed Plame with either Rove or Libby. Using a provision that allowed the submission of evidence in secret, Fitzgerald persuaded U.S. District Judge Thomas F. Hogan, a Reagan appointee, to order the reporters to testify or face jail for contempt.

Miller and Cooper appealed, but three judges of the U.S. Court of Appeals backed Hogan, including Clinton appointee David S. Tatel, considered one of the most liberal voices on the court. Public copies of Tatel's opinion included blank pages where the judge discussed the secret evidence. He called Fitzgerald's investigation "exhaustive" and said the testimony of the two reporters "appears essential to remedying a serious breach of public trust."

Cooper testified after losing the appeal and receiving a confidentiality release from Rove. When Fitzgerald rejected a compromise that would have kept Cooper from facing the grand jury, he insisted that he was not out to get reporters or dismantle the First Amendment, despite accusations from some constitutional lawyers and editorial writers that he was doing just that.

"It's not personal," Fitzgerald said, according to Sauber. "It's my job."

Miller chose jail, setting the stage for the last piece of Fitzgerald stagecraft. Periodically calling lawyers, he eventually learned from Miller attorney Robert S. Bennett that she might relent if she received a clear and personal waiver from Libby.

In three single-spaced pages, the special counsel wrote Libby attorney Joseph A. Tate that it would be seen as "cooperation with the investigation" if Libby reiterated the confidentiality release he had previously given Miller.

But in a twist apparently designed to get Libby's attention, Fitzgerald said twice that he suspected Libby may have preferred Miller to keep quiet about their talks.

Libby, after months of silence, quickly wrote Miller. He told her she was missed. He declared that he would be better off if she testified, and he made clear he was freeing her from her pledge.

Miller testified, and Fitzgerald prepared to wrap up his inquiry, but not without a final surprise.

A lawyer familiar with Miller's grand jury testimony said the special counsel asked her to discuss all relevant conversations she had with Libby before Novak published Plame's name. When Miller detailed two July 2003 discussions and said she could not remember any others, Fitzgerald begged to differ.

He showed her a page from a White House logbook that recorded a June 23 visit by Miller to Libby at the Old Executive Office Building. Miller corrected herself and soon produced for the grand jury her notes from that meeting.

Soon after, Fitzgerald called it a day.

Leonnig and research editor Lucy Shackelford reported from Washington.


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