A special prosecutor demanded yesterday that Time magazine reporter Matthew Cooper answer questions about his confidential sources and again urged a federal judge to jail him and New York Times reporter Judith Miller if they continue to refuse to comply.
In a court filing yesterday, special prosecutor Patrick J. Fitzgerald said that Cooper still must agree to cooperate with prosecutors to avoid jail, even though Time last week turned over notes and e-mails that identify his sources for an article on the disclosure of an undercover CIA operative's identity.
In unusually blunt language, Fitzgerald told Chief U.S. District Judge Thomas F. Hogan that Cooper and Miller pretend that journalists have a broader right to protect confidential sources than lawyers, presidents and law enforcement officers.
"Journalists are not entitled to promise complete confidentiality -- no one in America is," he wrote.
Fitzgerald's arguments set the stage for a historic showdown in federal court between the government and the news media this afternoon, when Hogan could order the two reporters confined for defying his October order to cooperate in the grand jury investigation.
Fitzgerald is trying to determine whether senior Bush administration officials broke the law by knowingly leaking the identity of covert CIA operative Valerie Plame to reporters as retaliation for an opinion piece written by her husband. Plame's name first appeared in a syndicated column by Robert D. Novak in July 2003, eight days after her husband, former ambassador Joseph C. Wilson IV, accused the administration of twisting intelligence to justify war with Iraq.
Responding to court filings last week by the two reporters, Fitzgerald urged Hogan to reject their requests for home detention or assignment to prison camps for white-collar criminals, and to confine them immediately for four months. Typically, that time would be spent in the D.C. jail.
Cooper and Time declined to comment yesterday on Cooper's intentions, but colleagues said he is still struggling with his decision. For practical purposes, he cannot protect his sources because his publication has already turned over notes that identify them. But if Cooper cooperates, friends say, he fears his journalistic reputation will be tarnished. Time editors have told him they will respect whatever decision he makes, they said.
Miller and the New York Times declined to comment yesterday, but she has steadfastly maintained she will go to jail rather than discuss her sources before a grand jury.
Fitzgerald's investigation has included interviews with President Bush; former secretary of state Colin L. Powell; Bush's chief political adviser, Karl Rove; Vice President Cheney's chief of staff, I. Lewis Libby; and others. Under arrangements that did not involve them identifying confidential sources, four reporters -- Walter Pincus and Glenn Kessler of The Washington Post, NBC Washington Bureau chief Tim Russert, and Cooper -- have already answered a limited number of questions from the prosecutor.
On Saturday, Rove's attorney said that Rove spoke with Cooper during the critical period in July 2003, just after Wilson's piece appeared, when reporters were calling the White House to ask questions about Wilson's assertions. But he said that Rove did not reveal Plame's identity and that Fitzgerald has assured him Rove is not a target of the investigation.
Fitzgerald may learn more details from Cooper's notes. Sources close to the investigation say there is evidence in some instances that some reporters may have told government officials -- not the other way around -- that Wilson was married to Plame, a CIA employee.
At a lunch meeting yesterday with Washington Post reporters and editors, Rove declined to answer questions about the Plame case.
It is a felony to knowingly identify a covert CIA operative. But lawyers for some media say they believe Fitzgerald has no evidence that a government official committed that crime. Time Inc. argued last week to Hogan that Fitzgerald may have evidence that an official perjured himself during the investigation, but contended that the effort to prove that does not justify jailing reporters.
In his filings yesterday, Fitzgerald used strong language to complain about the reporters' professed goal of protecting their sources. It would be "pointless" for Cooper to go to jail, he said, because Time effectively identified the source whom Fitzgerald is interested in when it turned over Cooper's notes and e-mails. Cooper's source has also waived Cooper's promise of confidentiality.
Likewise, Fitzgerald has repeatedly said he already knows the identity of Miller's source and that person has relieved Miller of her duty to protect the source's anonymity. Yesterday, he suggested Miller will likely spend time in jail thinking about "whether the interests of journalism at large, and even more broadly, the proper conduct of government, are truly served" by her continued refusal to discuss her sources.
"Miller's views may change over time," he said, if her "irresponsible martyrdom" is later viewed by her industry colleagues as hurting, rather than helping, reporters' efforts to protect their sources, he wrote.