Thickening
More interesting stuff on Plamegate from TalkLeft and O'Donnell. Both point to one interesting piece of evidence in the court documents that indicates Fitzgerald is actually pursuing a serious crime rather than some sort of "send a message" perjury rap. O'Donnell first gives all the reasons why it's hard to prove that Rove broke the law and then says this:
In February, Circuit Judge David Tatel joined his colleagues' order to Cooper and Miller despite his own, very lonely finding that indeed there is a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources. He based his finding on Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop new privileges "in the light of reason and experience." Tatel actually found that reason and experience "support recognition of a privilege for reporters' confidential sources." But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to "the gravity of the suspected crime."
Judge Tatel's opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to "[h]aving carefully scrutinized [the prosecutor's] voluminous classified filings."
Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case "which involves the alleged exposure of a covert agent." Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters' shield law -- but in the end, he couldn't bring himself to do it in this particular case. In his final paragraph, he says he "might have" let Cooper and Miller off the hook "[w]ere the leak at issue in this case less harmful to national security."
Tatel's colleagues are at least as impressed with the prosecutor's secret filings as he is. One simply said "Special Counsel's showing decides the case."
All the judges who have seen the prosecutor's secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.
Talkleft had brought up these documents earlier and pointed to this passage, which I agree is quite telling. Apparently Cooper had at some point used the excuse that he wasn't culpable because he had exposed the fact that the White House was outing Plame in his article. Here is what Judge Tatel wrote in his concurring opinion:
In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime. The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leaks—say, from a whistleblower who revealed the plot against Wilson—the situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Plame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires.
It's possible that they are only talking about perjury or lying to the FBI a la Martha Stewart. But O'Donnell is right that it's hard to believe that a judge who is inclined to create a federal shield law would find this case so particularly distasteful that he refuses to use this precedent to do it. That passage above indicates quite clearly that, based upon the evidence he's seen, the leak itself was criminal.
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