The Leaks Investigation

RAY SUAREZ:

The search for an alleged leak from the Bush White House that exposed an undercover CIA operative recently reached the Oval Office.

President Bush was questioned for 70 minutes two weeks ago by the federal prosecutor investigating the case.

The exposed operative is the wife of former Ambassador Joseph Wilson. Wilson was sent by the CIA in February 2002 to investigate intelligence claims that Iraq had sought to buy nuclear material from the West African nation of Niger. He found the reports groundless and advised the CIA. Despite Wilson's warning, the president pointed to the alleged uranium purchase in last year's state of the union address as evidence that Iraq sought banned weapons.

PRESIDENT GEORGE W. BUSH:

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

RAY SUAREZ:

Wilson went public with his concerns last July 6 in an op-ed page piece for The New York Times, disputing the president's remarks.

On July 14, his wife was named in a syndicated column by conservative writer and CNN contributor Robert Novak. Novak reported that Wilson's wife had interceded to have her husband investigate the Niger claim. Wilson alleges that the White House revealed his wife's name in an effort to intimidate him and others who disagree with White House policy. The CIA said it tried strenuously to dissuade Novak from identifying Wilson's wife so as not to endanger her, or any agents she might have worked with. Novak disputed that characterization.

George Tenet, the departing director of Central Intelligence, asked the Department of Justice to investigate last year. Attorney general John Ashcroft recused himself from the investigation, so it was handed over to Patrick Fitzgerald, the U.S. attorney in Chicago.

The federal prosecutor convened a grand jury and subpoenaed NBC's Tim Russert and Time magazine's Matt Cooper. Both men's organizations are fighting the subpoenas. One reporter agreed to be questioned by prosecutors: Glenn Kessler of The Washington Post.

RAY SUAREZ:

Joining me now is Adam Liptak, national legal correspondent for The New York Times, who's also a former First Amendment lawyer. Adam, welcome. What was the basis that the media companies put forward for suppressing these subpoenas?

ADAM LIPTAK:

You know, I have to say that these were sealed secret hearings. We don't know for sure, but I have a pretty good idea what sorts of argument they would make.

They would say that it's a fundamental bedrock importance to journalists to be able to keep their promises to confidential sources because if they can't keep those sources' identities confidential, other people won't come forward with important information about how the government works, and as a consequence the flow of information to the public will be stifled, and we're better off with a system in which reporters are allowed to keep their promises.

RAY SUAREZ:

Even if the judge agrees with that line of reasoning, is he bound by the law at the federal level? Are there laws that give reporters that kind of protection, the ability to make conversations they have privileged?

ADAM LIPTAK:

Reporters like to think that we have that privilege, but the sad fact, particularly in the federal courts, is that it's quite limited. The Supreme Court has never endorsed a reporter's privilege based on the First Amendment or the common law, and Congress has not seen fit to pass a shield law.

So in the federal courts we have very weak protections, and these reporters are facing an uphill fight.

RAY SUAREZ:

Have reporters in other cases been successful in staying out of the grand jury chamber?

ADAM LIPTAK:

They have, and there are arguments available, but in this situation those arguments are probably at their weakest. The main arguments reporters make are either that the information they have is not central to the case, and here who did the leaking is the essential question in the grand jury's investigation.

The other argument that reporters typically make, and courts like this one, is "please ask me last," exhaust all possible alternative sources, talk to everyone before you talk to a reporter.

Here again, though, from the looks of it — and the information is limited because it's a grand jury proceeding in secret — from the looks of it, this has been an extensive and thorough investigation, including interviews with the vice president and president.

So, this notion that the reporters should be asked last is a good theory, but here they may indeed be being asked last.

RAY SUAREZ:

Two news organizations, time and NBC have sought to quash the subpoenas. The Washington Post, however, allowed their reporter to testify. Why did Glenn Kessler agree?

ADAM LIPTAK:

It's a little hard to say, and I've not been able to get the Washington Post lawyers to explain it to me. What they've published is that they believe that their source gave them permission to talk to prosecutors.

However, if that permission consisted only of a waiver form that prosecutors essentially forced all sorts of people at the White House to sign, that's not going to be of much comfort to future sources because it's very hard to decline to sign such a form.

It's a little hard to know exactly what went on with The Washington Post, and one hopes that they didn't rely solely on this kind of blank form that a prosecutor shoved under someone's nose in order to betray a promise to a confidential source.

I bet there's more to a story… to the story, but we don't know it yet.

RAY SUAREZ:

It's been widely published that the source that let Glenn Kessler off the hook is a pretty important person in the White House.

ADAM LIPTAK:

It's said to be Lewis Libby on the vice president's staff. His name has come up over and over again. It's not clear, though, and in The Washington Post reporting, there was a suggestion that what they had to tell prosecutors was tended to exonerate rather than incriminate Mr. Libby, which might be a reason that Mr. Libby indeed, not only through this form but perhaps in another way, allowed or encouraged the reporter to testify.

RAY SUAREZ:

How long until we know whether this attempt to quash the subpoenas is successful and whether this is all that the U.S. Attorney Fitzgerald is going to get on this matter?

ADAM LIPTAK:

Well, there are a couple of questions. One is, how long does it take to judge to decide and hear arguments from very sophisticated lawyers today. And that typically takes weeks for a judge to digest the argument and the briefs and to write a written decision. It's also not clear that that decision will be made public, again because it's a grand jury proceeding; and not clear what happens next. It may be that if the news organizations lose, they'll appeal. It may be that they'll appear before the grand jury, but decline to testify there. There are lots of steps, legal steps, procedural steps, between here and there.

The one person we haven't talked about is Robert Novak, the original publisher of Valerie Plame's name, and it's… we know a little about what The Washington Post did. We know knowing about what Mr. Novak did, which is suggestive of the fact that he probably did something. He won't have been overlooked by the prosecutors.

RAY SUAREZ:

And does the fact that the president was interviewed signal that Mr. Fitzgerald's case is almost done, his part of it?

ADAM LIPTAK:

It almost certainly means that. You're not going to take up the president's time until you're finishing up the case.

It’s interesting, though:

70 minutes is a long time. The president hiring a private lawyer is an unusual move. It does seem — while no one thinks the president himself picked up the phone to Mr. Novak — that the president may well have information interesting to prosecutors. That's not to say that it's information that points towards anyone's guilt, but certainly 70 minutes is a lot of questions.

RAY SUAREZ:

In the way that grand juries work, would the president have had to have been mentioned by other people who had already testified for him to be brought in by the U.S. attorney?

ADAM LIPTAK:

The U.S. attorney could have learned of the president's having information in various ways, although it wouldn't surprise me at all if it came up during grand jury testimony.

RAY SUAREZ:

And other leading lights of the administration have also been interviewed, also all not without taking the oath, is that correct?

ADAM LIPTAK:

No, I believe that both the White House counsel Alberto Gonzales and the White House spokesman Scott McClellan actually appeared before the grand jury. And while we don't know what went on inside, it would be quite unusual for them not to be sworn in there.

I think the president and vice president were extended a courtesy of being interviewed informally.

RAY SUAREZ:

Adam Liptak of The New York Times, thanks for being with us.

ADAM LIPTAK:

Thank you, Ray.