If the source has waived confidentiality, why keep it confidential?

July 6, 2005

Carpetbagger regular Bubba alerted me to today’s AP story on the Plame grand jury that included an interesting tidbit.

In a high-stakes battle over press freedom, two reporters face jail, possibly as early as Wednesday, for refusing to divulge their sources to a prosecutor investigating the Bush administration’s leak of a CIA officer’s identity.

“Journalists are not entitled to promise complete confidentiality — no one in America is,” Special Counsel Patrick Fitzgerald told a judge.

In court papers, Fitzgerald said the source of Matthew Cooper of Time magazine and Judith Miller of The New York Times has waived confidentiality, giving the reporters permission to reveal where they got their information.

The prosecutor did not identify the reporters’ source, nor did he specify whether the source of each reporter was the same person…. Without elaboration, Fitzgerald said Miller’s source “has been identified and has waived confidentiality.”

Unless I’ve missed it, this is the first time this little piece of information has been published and acknowledged by Fitzgerald.

But it also makes the story even more bizarre. Rove has reportedly signed a waiver authorizing reporters to testify about their conversations with him. For that matter, Lewis “Scooter” Libby, Dick Cheney’s chief of staff and another key figure in this scandal, has also signed a waiver releasing reporters from keeping confidential any disclosures about Plame.

Why, then, refuse to testify? If someone has an explanation for this, I’m all ears.

Update: Cooper has agreed to testify.

“I went to bed ready to accept the sanctions” for not testifying, Cooper said. But he told the judge that not long before his early afternoon appearance, he had received “in somewhat dramatic fashion” a direct personal communication from his source freeing him from his commitment to keep the source’s identity secret.

Why, then, refuse to testify?

Seems to me, you could just as easily ask the reverse: If the source has waived confidentiality (and thus, presumably, is cooperating with the prosecutor), then why would the prosecutor continue to pursue notes of their meeting with a third party?

As for the reporters, I guess they’re standing on principle. To me, it seems very much like the familiar old gambit, “If you really are loyal, why not sign our nifty loyalty oath?

  • I guess my question would be this. If Fitzgerald knows who the source is, then why does he need the reporters to testify? Isn’t the purpose of the investigation to identify the source of the leaked information and then prosecute the person responsible???
    Has this become an attack on the press vs. an investigation into White House leaks of confidetial information?

  • Maybe they don’t want to testify about what the source said rather than who the source is. Like: “The president has informed me that…” or “This coms straight from the president…”.

  • Three pertinent points:

    A. A federal perjury charge against Rove or any other “senior administration officials” requires corroboration by two people, which I assume would be Miller and Cooper (and/or Novak if he sang like the scum pond bird he is). Their notes are not sufficient, nor are the waivers by Rove and Libby. Fitzgerald needs actual testimony to make out perjury and/or obstruction of justice charges against the leakers and cover-up-ers.

    B. Miller and/or Cooper may themselves be “subjects” of the Fitzgeral investigation, and of course needs them to testify, should they choose to do so, to get their side of the story.

    C. As to why Miller and Cooper might continue to refuse to testify in spite of the sources’ waivers of confidentiality, it has nothing to do with upholding journalistic standards, and EVERYTHING to do with their criminal culpability in (1) facilitating the outing of Plame; (2) facilitating the cover-up of whomever outed Plame; and/or (3) they have a lot of “relevant skeletons” in their closets that would be fair game to the prosecutor when Miller and Cooper get sworn in. And IF they choose to answer even one question before the grand jury, they waive their 5th Amendment rights against self-incrimination as to ALL questions — which would open them up to all sorts of legal do-do that they likely want to be left in the dark.

    I suspect that, when all is said and done, at least Miller and Novak, and likely Cooper, too, will be indicted along with some “officials” inside the White House. Rove and Libby offering their waivers of confidentiality are empty gestures, since they know that Miller and Cooper can only place themselves in more jeopardy by testifying than they do by maintaining their silence.

  • On Kos folks speculated that reporters don’t consider a signed waiver the be real if it was ordered by the boss. The theory being, presidents could shut down leaks forever simply by compelling everybody in a sensitive position to sign a waiver or lose their job. I suppose it could be argued that Scooter’s waiver ‘smelled’ voluntary while everybody else’s did not.

  • Good question. I disagree with Strain: there is no principle to defend if the source has waved confidentiality. Gridlock has another good question, though: why does Fitz need their testimony, then? I have a question of my own: why doesn’t Bush just pardon Karl? I mean, he’s already shown he’s divorced from reality and that there’s no crime other than disloyalty.

  • Maybe it’s not Rove they’re protecting at all. My money’s still on John Bolton.

  • There is one issue people seem to forget.

    It is very unlikely that the White House would even know the name of a CIA operative. So the real question is “who told the White House about Plame in the first place”? Has any looked into who had access to the names of operatives and who had something to gain? Can anyone say Bolton, maybe?

  • “in somewhat dramatic fashion”

    Wow. Makes you long for the days when the Monica investigation leaked like a sieve.

  • It is very unlikely that the White House would even know the name of a CIA operative. So the real question is “who told the White House about Plame in the first place”? Has any looked into who had access to the names of operatives and who had something to gain? Can anyone say Bolton, maybe?

    WOW good point. Maybe that’s the info the WH wouldn’t turn over during the confirmation phase (that was, if I remember, specifically related to Bolton looking into other governmental intelligence agencies).

    And IF they choose to answer even one question before the grand jury, they waive their 5th Amendment rights against self-incrimination as to ALL questions — which would open them up to all sorts of legal do-do that they likely want to be left in the dark.

    AL, what is your source for this? I may be wrong, but I was under the impression that you could invoke the 5th amendment anytime, for selective questions, even. And you technically still answer every question, but your answer is essentially “I refuse because it would incriminate me.�

  • Normally I would say they wouldn’t know the name of an individual operation. But Wilson had been doing work on the nuke/uranium/WMD arena for a while and he would have gone though background checks or at least looks at his resume – both of which would be likely to reveal at least who his wife worked for if not anything more specific. I think they got her identity though his work and not her own.

  • A. A federal perjury charge against Rove or any other “senior administration officials” requires corroboration by two people, which I assume would be Miller and Cooper (and/or Novak if he sang like the scum pond bird he is). Their notes are not sufficient, nor are the waivers by Rove and Libby. Fitzgerald needs actual testimony to make out perjury and/or obstruction of justice charges against the leakers and cover-up-ers.

    [….]

    Thank you Analytical Liberal

    I think that clears up the mystery of why Fitz is still after Cooper and Miller very neatly – one can only hope.

  • Peter, Eadie, i believe that the “original source,” (“patient zero,” if you will) is the real fitzgerald target, followed by conspiracy and/or perjury for those who took the “source’s” info and passed it along. I also believe that they didn’t know that plame was undercover when they did it (assuming she was just a desk jockey), but that given the kind of people they are, rather than acknowledge, they lied about the whole background, which would prompt considerations of perjury.

    what i don’t think, in the end, is that rove will go down for this from a legal standpoint. Since the fallback position is that rove devoted a bunch of his time entirely to try and discredit joe wilson, in a better world, bush would demand his resignation, but we live now in the kind of world nixon lived in with respect to haldeman and ehrlichman.

  • Miller received the original leak while Cooper received priviledged information while investigating a follow-up story on the leak. It seems likely that Fitzgerald wants them for two completely different things.

    In my heart of hearts I dream that on Cooper hangs a perjury conviction while on Miller’s testimony, treason.

  • I read, I think on TalkLeft, the point about needing two witnesses to prove perjury. iirc, though, they said that there had to be two witnesses to the perjurious statement, which made no sense, since the actual lie would presumably have been told in front of the entire grand jury. So I’m not sure I get this one.

    I did hear Cooper, on the news, say that there had been government-ordered blanket waivers, which he did not take seriously. But his source contacted him independently, and specifically told him that he waived his right to confidentiality, at which point he (Cooper) agreed to testify.

  • hilzoy,

    Yes, the lie would have been told before the entire grand jury, but it is only a “lie” because the “senior administration official” actually told two reporters something else. E.g., the “senior administration official” tells reporters 1 and 2 that Plame was a NOC agent with the CIA, but tells the grand jury that he did not tell that to the two reporters. Without reporter 1 and 2 telling the grand jury the truth, then the prosecutor can’t prove that “senior administration official” lied to the grand jury.

    Does that clear it up?

  • What if…

    There is probably more than one source and I think Fitzgerald (look at his background) doesn’t mind “burning” the press, quite enjoys it! Oh, and I think Bolton is indeed tied into this and have written about it. After all, B. was at those Rome meetings and was tied into the process of creating casus belli for Bush, along with Ledeen and Larry Franklin and Libby and Rhodes and others from the Office of Special Plans at the Pentagon. It’s possible that B. and/or Ledeen were directly involved in creating the forged document in Italy about yellowcake and Plame knew.

    And Wilson knew. It was his declaration that the yellow cake was a big nothing that ruined yet another attempt of the administration to justify preemptive action. Awkward! Both Tenet and Goss probably knew precisely what Plame’s job was, knew about the yellow cake set-up. So an authoritative leak from “high administration officials” was engineered and Plame is out. If she were to talk later (unlikely for a CIA analyst, but if) she is pre-discredited as a malcontent along with her husband.

    Miller’s relationship to this?! Given her earlier relationship with Chalabi, who knows! She may have known nothing about Plame but a lot about Bolton and yellow cake. I bet the reason why some Senators are so passionate about stopping Bolton is that they know too.

    All speculation.

  • “Journalists are not entitled to promise complete confidentiality — no one in America is” But of course, Bush and Cheney testifying together to the 911 Commission behind closed doors with no audio or video or notes of any kind recorded are awarded just that. Cheney’s energy task force is awarded just that. Bob Novak – the only know criminal in the entire Plame Game – is awarded just that.

    • Comments are closed.