Threat of Jailing Is Lifted With Reporter's Testimony

New York Times ^ | August 25, 2004 | JACQUES STEINBERG

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A federal judge in Washington yesterday lifted a contempt order and the threat of jail against a Time magazine reporter after he submitted to questioning by a special prosecutor who is investigating the disclosure of a covert C.I.A. officer's identity to the columnist Robert Novak and other journalists.

The reporter, Matthew Cooper, was questioned in a two-hour deposition about his contacts with I. Lewis Libby, chief of staff to Vice President Dick Cheney, but only after Mr. Libby's lawyer assured Mr. Cooper's lawyer that Mr. Libby had waived a confidentiality agreement with the reporter.

The deposition was given on Monday but became known only when the judge lifted the contempt order yesterday at the request of the special prosecutor, Patrick J. Fitzgerald.

On Aug. 9, the judge, Thomas F. Hogan, ordered that Mr. Cooper be jailed, and Time fined $1,000 a day, for refusing to name the government officials who might have disclosed the intelligence officer's identity to him. The judge suspended the sanctions while Time pursued an appeal.

While Mr. Cooper's deposition now relieves him of the burden of a contempt citation, many questions about the investigation of the leak remain unresolved. It is not known, for example, what role, if any, Mr. Libby may have played in identifying the C.I.A. officer, Valerie Plame, to Mr. Novak, Mr. Cooper or other journalists who wrote about her by name last summer. Disclosing the identity of a covert officer of the Central Intelligence Agency can be a crime.

Floyd Abrams, a lawyer representing both Mr. Cooper and Time, said yesterday that Mr. Libby had been "one of the sources'' for an article that Mr. Cooper co-wrote last July that mentioned Ms. Plame. But Mr. Abrams would not say precisely what material Mr. Libby had provided to Mr. Cooper and declined to say whether Mr. Libby was among those who had given Ms. Plame's name to Time.

A lawyer representing Mr. Libby, Joseph A. Tate, did not respond to two phone messages seeking comment on the case. Asked for a comment from Mr. Libby, a spokesman for Mr. Cheney, Kevin Kellems, referred a reporter's question to Mr. Fitzgerald. A spokesman for Mr. Fitzgerald, Randall Samborn, said the prosecutor had no comment on the investigation.

In his earlier ruling in the Plame matter, Judge Hogan said a Supreme Court decision from 1972 known as Branzburg required Mr. Cooper to disclose his sources. "Branzburg,'' the judge wrote, "makes clear that neither the First Amendment nor the common law protect reporters from their obligations shared by all citizens to testify before the grand jury when called to do so.''

Interviewed yesterday, Time's managing editor, Jim Kelly, said: "We continue to feel a journalist should not be compelled to give up a confidential source. In this case, the confidential source, of his own free will, completely waived his confidentiality.''

Mr. Cooper would not have cooperated with prosecutors without Mr. Libby's consent, Mr. Kelly added.

Mr. Novak is believed to be central to the investigation because it was he who first identified Ms. Plame, in a syndicated column published on July 14, 2003, when he described her as "an agency operative on weapons of mass destruction.''

He did so in the context of a column about Ms. Plame's husband, Joseph C. Wilson IV, a former diplomat sent by the C.I.A. to Africa in 2002 to investigate the possibility Iraq had tried to buy uranium from Niger. Citing "two senior administration officials'' as sources, Mr. Novak reported that it was Ms. Plame who had suggested sending her husband to Africa.

Mr. Novak's lawyer, James Hamilton, has refused to say whether the columnist has received a subpoena from the special prosecutor.

Mr. Wilson has suggested that the White House leaked his wife's name as retribution for his criticism of the administration, including an Op-Ed article published in The New York Times on July 6, 2003, eight days before Mr. Novak's column. In his article, Mr. Wilson asserted that President Bush had relied on discredited evidence when, in his 2003 State of the Union address, he said that Iraq had sought uranium from Africa.

On July 17, 2003, three days after Mr. Novak's column was published, Time published an article on its Web site - under the bylines of Mr. Cooper, Massimo Calabresi and John F. Dickerson - that explored what it described as the Bush administration's "feud'' with Mr. Wilson.

"Some government officials,'' the reporters wrote, "have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a C.I.A. official who monitors the proliferation of weapons of mass destruction.''

It is not known why the special prosecutor was so interested in questioning Mr. Cooper about Mr. Libby. Mr. Kelly, Time's managing editor, characterized the deposition on Monday as having been "all about Matt's conversations with Mr. Libby.'' But Mr. Kelly declined to answer any other questions about what Mr. Cooper had been asked, and Mr. Cooper also declined to comment.

In addition to the case involving Time, NBC said in a statement earlier this month that Tim Russert, the moderator of "Meet the Press,'' had agreed to be questioned by the special prosecutor's office about his contacts with Mr. Libby last summer. In the statement, NBC said that Mr. Russert had not been the recipient of a leak and that prosecutors had not asked him questions that would have forced him to disclose a confidential source. And The Washington Post has reported that one of its reporters, Glenn Kessler, testified in June about two conversations with Mr. Libby, telling prosecutors that in neither had Mr. Libby mentioned Ms. Plame or Mr. Wilson.

Other journalists who have received subpoenas in the investigation include another Post reporter, Walter Pincus, and Judith Miller of The Times. Mr. Abrams, who is representing Ms. Miller, said a hearing on her request to quash the subpoena was scheduled before Judge Hogan in early September.

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The author Steinberg wrote the whitewash of the Times' internal meeting that decided the fate of disgraced Times executive editor Howell Raines.

Personally, I would have like to have seen Cooper and his comrades twist in the wind a bit longer -- just long enough to reflect on the honesty and ethics among journalists today. As the Boston Globe's Oliphant implied on PBS's NewsHour on Friday, mainstream journalists today are an extension of the Kerry Campaign.