Newsweek reports that the repulsive Karl Rove figures prominently in the emails and notes that Time Inc. has agreed to turn over to Novak-Plame-gate prosecutor Patrick Fitzgerald. It seems clear, therefore, that Rove was somehow involved in the outing of Valerie Plame, as many have suspected all along. What remains unclear is the nature of Rove’s involvement, and whether Rove is being targeted by the special prosecutor – according to Newsweek, an anonymous lawyer reports growing "concern" within the White House that Rove is indeed in Fitzgerald’s sights, though Murray Waas says different. It has long been assumed that the crime at issue was the actual leaking of Plame’s identity, but now it seems more likely that Rove could be nailed for an ancillary crime, perhaps perjury or conspiracy (another reporter has a less nuanced and simultaneously less specific take). Couldn’t happen to a nicer guy.
Josh Marshall notes in his discussion of the Newsweek piece that he thought he recalled Justice Department guidelines requiring prosecutors to avoid issuing subpoenas to reporters unless it was essential to the investigation of a crime, regardless of whether any First Amendment or other legal privilege exists. Josh’s recollection is correct. The guideline, published here, says that before a federal prosecutor may subpoena a reporter, he or she must (1) have "reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred"; (2) conclude that "the information sought is essential to a successful investigation – particularly with reference to directly establishing guilt or innocence" (subpoenas "should not be used to obtain peripheral, nonessential, or speculative information"); and (3) make "all reasonable attempts" to get the information elsewhere.
Assuming that FItzgerald has followed this guideline, it would appear that Judith Miller’s and Matthew Cooper’s notes, and the Time Inc. documents, are all "essential" to the investigation of a crime that really has occurred. Fitzgerald, of course, is not saying whether that crime is a violation of the Intelligence Identities Protection Act (which would be the leak of Plame’s identity, and which some have suggested might not have been illegal after all) or of some other crime arising out of Plame’s outing. But in either case, it is apparent that Fitzgerald is convinced that a crime really has occurred here, and that he really does need this information to solve it. Everyone would be better off (except maybe Karl Rove) if Fitzgerald is given the information he needs and is allowed to finish his job.
