A federal district judge in Washington has ordered a reporter for The New York Times to testify before a grand jury investigating the disclosure of the identity of a covert CIA officer.
In a decision dated Sept. 9 and released Thursday, Judge Thomas Hogan said reporter Judith Miller must describe any conversations she had with “a specified executive branch official” as “part of the ongoing investigation of the potentially illegal disclosure of the identity of CIA official Valerie Plame.”
Plame’s identity was disclosed last year in a column by Robert Novak.
George Freeman, assistant general counsel of The New York Times Co., said: “We regret that Judge Hogan has denied our motion to quash the subpoena on Judy Miller seeking that she reveal her confidential sources. Journalists should not be forced to testify about their confidential sources when they have done nothing more than aggressively gather news about government actions.”
Hogan, the chief judge of the U.S. District Court for the District of Columbia, wrote: “This court holds that Miller has no privilege, based in the 1st Amendment or common law, qualified or otherwise, excusing her from testifying before the grand jury in this matter.”
In his opinion, the judge said, “The information requested from Miller is very limited, all available means of obtaining the information have been exhausted, the testimony is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt.”
Hogan said that Miller had never written an article about Plame or her husband, Joseph Wilson IV, a former ambassador who was critical of President Bush’s claim of Iraq trying to obtain uranium from Niger. But, the judge said, Miller “contemplated writing one.”
In an earlier decision related to the same investigation, Hogan ordered a reporter for Time magazine jailed and fined the publication $1,000 a day for contempt of court. The judge suspended the sanctions while they were appealed, and withdrew them entirely when the reporter ultimately testified.
Floyd Abrams, a lawyer representing Miller, said she would appeal to the U.S. Court of Appeals for the region. “That sort of absolutist rejection of 1st Amendment principles is deeply disturbing,” he said.
Hogan cited the 1972 case of Branzburg v. Hayes, in which the Supreme Court held that the 1st Amendment does not relieve a newspaper reporter of “the citizen’s normal duty” to furnish relevant information to a grand jury.
His decision did not name the executive branch official in question. Three journalists who received earlier subpoenas in the inquiry testified about contacts with I. Lewis Libby, the chief of staff for Vice President Dick Cheney.
On July 14, 2003, Novak, a syndicated columnist, disclosed Plame’s identity. He wrote that “two administration officials” had told him Plame was “an agency operative on weapons of mass destruction.” Disclosing the identity of a covert officer for the CIA can be a crime.
Wilson has suggested that the White House might have leaked his wife’s name to journalists as retribution for his criticism of the president.
Hogan wrote that Miller had spoken with “one or more confidential sources” concerning Wilson’s article.
Novak has declined to say whether he has received a subpoena in the inquiry. Five other reporters have acknowledged receiving subpoenas: Miller; Glenn Kessler and Walter Pincus of The Washington Post; Matthew Cooper of Time magazine; and Tim Russert of NBC.
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Kessler, Russert and Cooper testified about their contacts with Libby based on what they said was his consent.