An appeals court has ordered Judith Miller of the New York Times and Matthew Cooper of Time to describe to a grand jury how they learned the identity of outed CIA agent Valerie Plame. If they refuse, they’ll face 18 months in jail. Neither one broke the story: Robert Novak first published the leaked information in 2003 (and Miller never even wrote about it). Scads of Slate readers have e-mailed to ask: Why isn’t Novak headed up the river, too?
No one really knows. Novak’s role (or non-role) in the grand jury investigation has baffled legal observers. Since he wrote the column outing Plame, he should have been the first witness on special prosecutor Patrick Fitzgerald’s list. Indeed, it’s possible that he was. Since grand jury investigations are secret, it’s not clear whether Novak has already testified in front of the grand jury, has refused to testify, or has not been asked to testify at all. Neither he nor Fitzgerald will comment on the case.
The secrecy of grand jury investigations has its origin in common law and is intended to protect the reputations of those improperly accused of a crime. Secret grand juries also encourage witnesses to be more forthcoming and don’t tip off potential criminals.
So, Novak might have sung like a canary. The prosecutor could even have gotten a gag order to make sure he didn’t tell anyone about it. (A Supreme Court case in 1990 gave journalists the right to discuss their own testimony only after the investigation has been concluded.) But it’s hard to imagine that Novak’s testimony wouldn’t have leaked out into the press. It’s well-known, for example, that Tim Russert has testified, and that Matthew Cooper has already appeared before the jury. And if Novak had given up his sources, why would the prosecutor still be pursuing Miller and Cooper? Maybe Fitzgerald wants Miller and Cooper simply to corroborate Novak’s story. It’s not uncommon for a prosecutor to use the grand jury phase of an investigation to build an airtight criminal case.
It’s also possible that Novak received a subpoena but pleaded the Fifth, fearing that he himself would be the target of an indictment. It’s very unlikely that Novak would be charged with a crime, since all he did was report what others had knowingly told him. If he tried to plead the Fifth, Fitzgerald could have granted him immunity and forced him to testify. But if Novak refused to testify, he should be in the same boat as Miller and Cooper.
On the other hand, Novak could be the target of another, related indictment. He might have lied to investigators or helped to cover up the crime. In that case, he would not have been granted immunity and could have taken the Fifth. For what it’s worth, Novak says he’s not a target.
Another improbable scenario has Novak testifying but refusing to give names. He might have appeared before the grand jury and claimed that he didn’t learn Plame’s identity from a government source who was breaking the law. In this case, special prosecutor Fitzgerald could try to show that Novak was lying—perhaps by bringing in Miller and Cooper.
Explainer thanks Geoffrey R. Stone of the University of Chicago and Jane Kirtley of the University of Minnesota.