U.S. District Chief Judge Thomas Hogan two weeks ago ordered Cooper and Tim Russert, host of NBC's "Meet the Press," to answer questions before a grand jury on whether they knew if White House sources illegally revealed the identity of CIA officer Valerie Plame, wife of outspoken Bush administration critic Joseph Wilson, to the news media.
In an order issued July 20 but not made public until Monday, Hogan ruled that Cooper and Russert were required to testify "regarding alleged conversations they had with a specified executive branch official." The judge concluded in his decision that "Cooper and Russert have no privilege, qualified or otherwise, excusing them from testifying before the grand jury in this matter," and thereby rejected requests from media organizations to quash the subpoenas.
Cooper still refused to testify after Hogan's July 20 order, and on Aug. 6 Hogan held him in contempt of court and ordered that he go to jail. Cooper was released on bond pending an emergency appeal to the federal appeals court in Washington, D.C., the Washington Post reported. Hogan also ordered Time to pay a $1,000 fine for each day until Cooper appears before the grand jury.
The judge has suspended those penalties pending Time magazine's and Cooper's expedited appeals. If they lose those appeals, Cooper could be sent to jail for up to 18 months under Hogan's order until he agrees to testify.
Russert avoided a contempt citation after agreeing to be interviewed under oath by prosecutors on Saturday, as part of an arrangement with U.S. attorney Patrick Fitzgerald of Chicago, appointed as a special prosecutor in the leak case, NBC News said in a statement. NBC lawyers reached an agreement with Fitzgerald in which Russert "was not required to appear before the grand jury and was not asked questions that would have required him to disclose information provided to him in confidence," the Post reported.
Earlier this summer, Washington Post reporter Glenn Kessler agreed to a similar interview with Fitzgerald's office.
Time magazine and Cooper, however, have not agreed to be interviewed and intend to appeal the judge's ruling, Time's managing editor Jim Kelly said.
Stressing the importance for reporters to protect confidential sources, the magazine would pursue its appeal "if it means taking it all the way up to the Supreme Court," Kelly told the Post.
Meanwhile, the judge's order appears to strengthen Fitzgerald's efforts to demand testimony from reporters who may have information regarding the leak.
On Monday, Washington Post reporter Walter Pincus -- who has written that a Post reporter received information about Plame from a Bush administration official -- was served with a subpoena, the Post reported. Washington Post counsel Mary Ann Werner said in response: "We intend to file a motion to quash the subpoena."
First amendment experts voiced doubts that an appeals court was likely to reverse Hogan's decision.
"I think we're going to have a head-on confrontation here," Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told The New York Times. "I think Matt Cooper is going to jail."
Floyd Abrams, a lawyer representing Time magazine and Cooper, said the decision would make it harder for reporters like Cooper to do their jobs.
The leaks investigation began after syndicated columnist Robert Novak questioned the findings of Joseph Wilson, who was dispatched to Niger in 2002 to investigate claims that Iraq attempted to buy uranium there for a weapons of mass destruction program. In his column, Novak claimed that two Bush administration officials said Wilson, an outspoken critic of the Bush administration's foreign policy, was recommended for the mission by his wife, Valerie Plame, a CIA nonproliferation "operative."
Novak's attorney, James Hamilton, has declined to comment on whether his client has received a subpoena.