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To
bring charges under the Intelligence Identities Protection Act, investigators
must prove that the accused intentionally revealed the name of an undercover U.S.
agent, knowing that the agent was a covert officer and the officer's identity
was not disclosed earlier. For this reason,  investigators
have focused on the chain of events leading up to the leak in the Valerie Plame
case. The special
prosecutor, Patrick Fitzgerald (pictured right), has subpoenaed a number of journalists
to answer questions regarding the case, arguing in court that journalists and
their notes on conversations with administration officials are of unique importance.
The White
House Under Investigation
In late September 2003, White House counsel Alberto Gonzales directed White House
staffers to turn over all evidence relating to the investigation into the leaking
of Plame's name. White
House press secretary Scott McClellan confirmed on Oct. 1, 2003 that the Justice
Department requested all White House staff to save all materials going back to
Feb. 2, 2002 that could be directly or indirectly relevant to the investigation.
The DOJ memo specified that White House staffers must save any documents going
back to Feb. 2 related to "three reporters." The
White House Counsel's Office in October also began reviewing the information that
eventually would be turned over to the Justice Department, McClellan said during
an Oct. 7, 2003 press briefing. Sometime
during December 2003, the FBI reportedly asked some White House staffers to sign
a waiver releasing reporters they spoke with from confidentiality agreements regarding
conversations they had about the agent's husband, former Ambassador Joseph Wilson
IV, who publicly challenged President Bush's claim in his State of the Union address
that Iraq had tried to buy uranium from the African nation of Niger. In
January 2004, President Bush directed his staff to cooperate fully with investigators,
but White House officials did not comment on whether the president asked staffers
to release reporters from confidentiality agreements.  Also
that month, the grand jury issued subpoenas to the White House requesting it turn
over two years of records of any conversations relevant to the case with reporters,
including some 25 journalists listed by name, as Newsday first reported in early
March 2004. One subpoena specifically requested the telephone records from Air
Force One, suggesting the investigation was pointing toward someone of high rank
in the Bush administration.
By
February 2004, investigators had interviewed more than three dozen Bush administration
officials, including McClellan. Investigators were reportedly interested in information
dating back to at least early June 2003, or about a month before the leak occurred,
according to an Oct. 12, 2003 article in the Washington Post. By
early June, President Bush and Vice President Dick Cheney had consulted independent
lawyers and later that month, on June 24, prosecutors interviewed President Bush
for more than an hour regarding the case. Cheney was reportedly interviewed sometime
earlier that month. Tracing
Journalists' Interviews and Sources
In spring of 2004, the prosecutors began to subpoena journalists for information
regarding the case. Typically,
journalists resist subpoenas on the grounds they violate reporters' privilege
embodied in the First Amendment to protect confidential sources and, if possible,
refer to state "shield laws" that permit reporters to decline to identify
sources in civil cases and sometimes in criminal cases, unless the information
is deemed vital to the prosecution and unavailable elsewhere. In
the CIA leaks case, there does not exist a specific federal protection for reporters'
confidentiality of sources. The Supreme Court dealt with the issue once in the
1972 Branzburg v. Hayes case, in which the justices ruled: "the First Amendment
does not relieve a newspaper reporter of the obligation that all citizens have
to respond to a grand jury subpoena and answer questions relevant to a criminal
investigation." At the same time, the court also recognized that reporters
are "not without First Amendment protections," but left it to state
and lower courts to interpret when and how those protections should apply. Since
then, 41 states have passed shield laws, but the Branzburg v. Hayes case continues
to serve as the de facto federal law on reporters' privilege and protections.
For this reason,
the special prosecutors may have requested White House staffers sign the waivers
in late 2003 to circumvent any First Amendment protections and confidentiality
privileges that could otherwise shield reporters from having to testify, and persuade
reporters to disclose their confidential sources upon consent from those sources.
These waivers specifically stated that "no member of the news media assert
any privilege or refuse to answer any questions from federal law enforcement authorities
on my behalf or for my benefit." Harvard
media analyst Alex Jones said in a Sept. 9, 2004 USA Today article that the White
House waiver represented a compromise from both sides, "a way for everyone
to behave honorably and to rationalize two conflicting but legitimate values:
the journalistic value and the investigative value that goes with checking into
a leak of this kind." But,
other media analysts expressed concerns about the waivers. "The
privilege is the reporter's alone, not some kind of contract that the source can
let him out of," Earl Caldwell, a professor at Hampton University in Virginia,
said in the same USA Today article. "Once you begin negotiating about it,
and a court sees that you're willing to do that, the question arises: Is the privilege
going to be there the next time you need it?" Caldwell is a former national
correspondent for The New York Times whose subpoena was in part the subject of
the 1972 Supreme Court case. Indeed,
a number of journalists ordered to testify have refused to reveal their sources
to investigators in the CIA leaks case. Their lawyers have claimed protection
from the law under the First Amendment guaranteeing freedom of speech.
But
Thomas Hogan, the chief judge of the Federal District Court for D.C., has consistently
denied journalists' appeals against the prosecution's subpoenas, citing Branzburg
v. Hayes, and has ordered them to answer questions before a grand jury or face
a punishment of up to 18 months in jail and fines.
After Time magazine's
Matthew Cooper became the first journalist to defy the judge's July 20 order,
Hogan held him in contempt of court on Aug. 6, sentencing Cooper to jail and fining
Time magazine $1,000 for each day until Cooper appeared before the grand jury.
Cooper was released on bond pending his appeal and Hogan suspended the fine.
 By
late August, the judge dismissed the contempt order -- including the jail time
and fines -- when Cooper gave a deposition to Fitzgerald's team. Cooper agreed
to the interview "because the one source specifically asked about by the
special counsel, I. Lewis "Scooter" Libby, the vice president's chief
of staff (pictured right), gave a personal waiver of confidentiality for Cooper
to testify," according to a press statement from Time magazine.
On
Sept. 16, 2004, the Washington Post confirmed that veteran reporter Walter Pincus,
who had refused to reveal his source's name to prosecutors, provided a deposition
in the case, but did not name the administration official involved in the leaking
of Plame's identity.
Also that month, Hogan denied an appeal from New
York Times reporter Judith Miller to quash a subpoena, saying Miller must describe
any conversations she had with "a specified executive branch official."
At least two other journalists have received subpoenas. Those journalists
are Glenn Kessler of the Washington Post and Tim Russert of NBC's Meet the Press.
Syndicated columnist Robert Novak, who first printed Plame's name, has not said
whether he has been subpoenaed. Of
those journalists, four -- Kessler, Russert, Pincus and Cooper -- reportedly testified
about conversations they had with Libby, upon receiving his approval, according
to the Washington Post. They testified that Libby did not disclose Plame's name
or identity to them, according to a Sept. 16 Washington Post article.
-- Compiled by Liz Harper for the Online NewsHour
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