By David Corn
July 07, 2005
David Corn writes The Loyal Opposition twice a month for TomPaine.com. Corn is also the Washington editor of The Nation and is the author of The Lies of George W. Bush: Mastering the Politics of Deception (Crown Publishers).
As Judith Miller of The New York Times sits in jail for refusing to reveal a source to Patrick Fitzgerald, the special prosecutor investigating the Bush administration leak that identified CIA officer Valerie Wilson (nee Plame), the question remains, why is Robert Novak, the conservative columnist who published the original leak, enjoying his freedom?
Not that Novak should be a target for prosecution. Under U.S. law—particularly the Intelligence Identities Protection Act—only U.S. government officials who intentionally disclose the identity of an American intelligence official are fair game for a prosecutor. The journalist to whom they leak cannot be prosecuted. This is a good thing. We do not want reporters being tossed into the hoosegow for publishing secrets obtained from the government. England has an official secrets act; we former colonists do not. (I wish more people understood the legal distinction between Novak's leakers and Novak. I receive loads of e-mails from people who indignantly ask why Fitzgerald hasn't charged Novak with a crime.) But the issue is this: While other reporters have resolved to be imprisoned to protect their sources—whether these sources deserve protection or not—what has Novak done? The obvious answer: He has squealed.
To be fair, we don't know for sure. Novak has declined to answer any questions about the investigation and his interactions with Fitzgerald. But here are two pretty solid assumptions.
Fitzgerald wants to know the name of the two unidentified Bush "senior administration officials" Novak cited in his July 14, 2003, column that outed Valerie Wilson, the wife of former Ambassador Joseph Wilson, a White House critic. That's the whole point of his investigation.
Fitzgerald at some point must have asked Novak to name names. After all, he requested that Matt Cooper of Time and Miller reveal their sources. (Cooper narrowly avoided going to prison on Wednesday when his source—Karl Rove?—gave him permission to testify before Fitzgerald's grand jury. Previously, Time magazine turned over his notes and e-mails to Fitzgerald. )
Fitzgerald has not slapped Novak with a subpoena. Thus, Novak in some manner, shape or form cooperated with Fitzgerald. Otherwise, he would be in the same—or similar—legal quicksand as Miller.
Novak owes it to his fellow journalists—and to his readers—to explain how he has escaped the powerful claws of prosecutor Fitzgerald. In fact, had Novak offered such an explanation prior to the final actions in the Cooper and Miller cases, it might have strengthened their legal position. But Novak elected to remain silent and adopt a protect-my-backside crouch. He has said he will "reveal all" only when the leak case is completed.
With that stance, he leaves the door wide open for speculation. So let's accept the invitation.
We've established it's likely that Novak somehow cooperated with Fitzgerald. That would mean that he disclosed to Fitzgerald the identity of these two senior Bush administration officials. Would Fitzgerald accept anything less? And that would present two possibilities: Novak either burned his sources, or he named them with their permission. (White House aides, such as Karl Rove and Lewis "Scooter" Libby, have signed waivers allowing reporters to testify about their conversations with them.) My guess is that it was more of the latter. I've known Novak for years; I co-hosted Crossfire with him several times. He does fancy himself a newsman, and I don't think he would be a complete rat (or risk becoming known as a complete rat) regarding the protection of sources.
So the odds are that Novak talked with the approval of his sources. Which leads us to the next question: What did he say? Fitzgerald obviously would not be satisfied with merely the names of the sources. He would want to know what these people told Novak. It's theoretically possible that Novak hung them out to dry and said something like, They told me quite clearly that Valerie Plame was an undercover CIA official, and the knew they were blowing her cover . Such a statement would place Novak's sources in legal jeopardy. But would Novak, a conservative ideologue, cooperate with Fitzgerald—with the permission of his sources—knowing that he could be sending senior Bush officials to the slammer? His standing as a hero in the conservative world would certainly be diminished if that occurred. Consequently, I find such a scenario hard to believe.
That brings me to my best guess of what did happen: Novak told Fitzgerald a story that helps his sources. It went something like this:
Yes, Mr. Fitzgerald, Bush Aide X and Bush Aide Y both told me that Valerie Plame worked at the CIA and that they suspected she had sent Joseph Wilson on his now-infamous trip to Niger where he determined it was highly unlikely that Iraq had been shopping there for uranium to be used in a nuclear weapons program. But neither one of these two fine Americans told me that she was an undercover operative at the CIA. If you will again look at what I wrote, I referred to her as an "Agency operative on weapons of mass destruction." I never reported she was in a secret position. In fact, the use of the word "operative"—which I suppose could connote a clandestine position but does not necessarily do so—was mine alone. These sources merely said to me she was employed at the CIA. As a newspaper columnist, I used the most evocative term I could think of at the time. I take full responsibility for that.
And to make everything neat and tidy, Bush Aide X and Bush Aide Y each essentially said the same thing to Fitzgerald:
I heard hallway chatter that Valerie Plame was at the CIA and that she had something to do with Wilson's trip to Niger. I passed this on to Novak and Time magazine. I was never aware that she was working undercover or that by sharing this gossip I would be disclosing confidential information that identified a covert official. After all, as you know, Mr. Fitzgerald, not every CIA employee is a clandestine official.
Voila. No crime. A thuggish act of political retribution that destroyed a CIA officer's career and undermined national security, yes. But no crime. The relevant law—the Intelligence Identities Protection Act of 1982—says that an offender has to "intentionally" disclose information "knowing that the information disclosed so identifies [a] covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States." Ignorance can be a defense under this act. A person indicted by Fitzgerald could argue that he (or she) didn't know that Valerie Wilson was working undercover. Case in point: After Rove was recently named in media reports as one of Cooper's source, his lawyer said Rove, who has appeared before Fitzgerald's grand jury, "never knowingly disclosed classified information" (my emphasis) and that "he did not tell any reporter that Valerie Plame worked for the CIA."
If the above scenario is how things played out (or close enough), Novak could indeed defend himself by saying he was protecting his sources—protecting them from prosecution. But in such a situation, Fitzgerald would have to ask himself, are Novak and his sources telling me the truth? And how could he answer that question? Novak's notes—if there are any—might confirm or undermine their joint account. But imagine if phone logs show there were calls between Novak and these sources after the investigation had begun. There well could be innocent explanations for these contacts. But Fitzgerald might be suspicious.
In this (imaginary though possible) scenario, if Fitzgerald doubted what Novak and these officials had told him, discovering what Novak's sources told other reporters, such as Cooper and Miller, would be essential for him. It wouldn't matter that Miller had not written a story on the Wilson business. If Fitzgerald had phone logs indicating one of Novak's sources had also spoken to Miller in the relevant timeframe, he'd be damn curious to know what had been said. Regarding Cooper's case, Fitzgerald does know that Time reported three days after Novak's column appeared that "government officials" had told the newsmagazine that "Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction." (Again, there is no clear indication that these "officials" had explicitly informed Time that Plame was an undercover CIA employee.) Squeezing information out of Cooper and Time could help Fitzgerald determine if Novak and his sources were being honest with him. And if he uncovered information contradicting their accounts he might even be in a position to contemplate perjury or obstruction of justice charges. (I'm not defending Fitzgerald's pursuit of Cooper and Miller and his destruction of reporter-source confidentiality. I'm merely exploring why he has chased after them in Javert-like fashion.)
Of course, I'm just supposin' here. Perhaps what occurred was completely different than the above-detailed scenario, maybe even unimaginable. But Novak gives us no other choice than to guess. And he cannot blame anyone for wondering how he has avoided the dilemma confronted by Cooper and Miller. He could come clean and share what he told Fitzgerald. He could at least describe in general terms his apparent cooperation. But as another reporter faces jail time for defying a prosecutor investigating a leak that Novak made public, Novak sticks to his mum's-the-word position. Miller is in prison to protect a right that Novak appears to have finagled.