Keller had no interest in another al-Haideri story.
PATRICK FITZGERALD was proceeding methodically with the CIA case, and he had finally reached a line he was more than willing to cross. In May, he went after Tim Russert and Matt Cooper, both of whom Libby had mentioned during his convoluted grand jury testimony. Russert was essentially Libby’s alibi. And Cooper was—in Libby’s account—another witness who could back up Libby’s claim that he had merely passed along gossip, not official classified information about Valerie Wilson that he had learned from Cheney, the CIA, and the State Department.
Fitzgerald contacted Time and asked the magazine and Cooper to cooperate with his investigation. He approached Newsday and asked to interview reporters Timothy Phelps and Knut Royce, who had written a piece confirming that Valerie Wilson worked at the CIA. Fitzgerald also asked The Washington Post if he could interview two of its reporters: Walter Pincus and Glenn Kessler. Pincus had cowritten a piece the previous October noting that an unnamed Post reporter had been told by an administration official that Wilson’s wife was a CIA employee who had sent her husband on a boondoggle. Pincus had been referring to himself, but Fitzgerald didn’t know that. He had obtained White House phone records showing that Libby had spoken to Kessler. So Fitzgerald wanted to know what Kessler and Libby had discussed. (As it turned out, it was not the Joe Wilson matter.)
Unlike Robert Novak, who had secretly cooperated, Time and Newsday turned Fitzgerald down flat. Fitzgerald responded right away. On May 21, he subpoenaed Russert and Cooper. Time and NBC said they would fight Fitzgerald. “Time Inc.’s policy is to protect confidential sources,” declared Robin Bierstedt, deputy general counsel for the magazine. NBC News said the subpoenas would have a “chilling effect” on its ability to report the news. The subpoenas were not front-page news, but they caused alarm throughout the media. As some media commentators saw it, Fitzgerald had declared war on a bedrock principle of modern-day journalism: protecting anonymous sources. Time and NBC filed motions in U.S. District Court in Washington to quash Fitzgerald’s subpoenas, claiming a First Amendment privilege. But Post lawyers and editors started pondering if there was a way to sidestep a showdown with the prosecutor.*78
Floyd Abrams, the renowned First Amendment lawyer who was representing both Cooper and the Times, called Fitzgerald and asked to meet with him. Fitzgerald agreed, and Abrams flew out to Chicago in June. “Don’t go down this road, Pat,” Abrams urged him. Did the prosecutor realize what he was doing? “I tried to persuade him to avoid the coming confrontation,” Abrams later said. “I argued he really shouldn’t do it [subpoena reporters] unless it was absolutely essential to the case.” Fitzgerald was respectful—and absolutely unmovable. “He told me he had thought this through and he would not have started unless he was prepared to go to the end of the road legally.”
Abrams pleaded with Fitzgerald to look at the broader implications. “I told him this was a bad thing as a policy matter for the country. It was a bad thing for the Bill of Rights.” But Fitzgerald replied that he had “looked into the law” and was confident he would prevail. “When I walked out, I knew there was no way to resolve this,” Abrams later said. “I thought it was hopeless.”
Having kicked off a battle with the media, Fitzgerald also called on the White House. In separate sessions in June, he interviewed Cheney and Bush. Each had a private attorney present. Neither was put under oath. Fitzgerald spent seventy minutes with Bush. The White House called it an “interview,” not “questioning.”
ON JUNE 3, CIA Director George Tenet submitted a letter of resignation to Bush. He told the president he was resigning for personal reasons. Bush appeared before reporters on the South Lawn of the White House and announced Tenet’s departure. He said that Tenet had done a “superb job.” Tenet was not with him. After speaking for two minutes, Bush left without taking questions.
As Tenet departed, the original case for the war seemed to be falling apart on another front. On June 16, the independent 9/11 Commission found “no collaborative relationship” between Iraq and al-Qaeda. After an exhaustive examination of intelligence community documents on the subject, the panel’s staff said it discovered instances from the early 1990s in which bin Laden had “explored possible cooperation with Iraq”—but no evidence that these contacts had led to any sustained relationship or any cooperation on attacks against the United States.*79 Two weeks later, Newsweek reported that Ibn al-Shaykh al-Libi, the al-Qaeda commander who had been the main source for the president’s and Powell’s claims that Iraq had trained al-Qaeda in the use of “poisons and deadly gases,” had recanted his story.
Then, on July 9, 2004, the Senate intelligence committee released a devastating 511-page report that chronicled the missteps, miscalculations, and shoddy judgments of the U.S. intelligence community prior to the war. The report concluded that the CIA and other agencies had succumbed to unfounded “groupthink” assumptions in determining that there had been weapons of mass destruction in Iraq. The intelligence agencies, the committee said, had reached conclusions that were either “overstated” or “not supported by the underlying intelligence.” The report offered the first public glimpse into the Curveball debacle and new details about other Iraq intelligence fiascos, including the bizarre Niger saga. It also pointed out that the CIA had had no spies inside Iraq after 1998 and had been unable to get any firsthand information on its own about what was going on inside the country. The report, approved unanimously by the GOP-controlled panel, offered no criticism of Bush, Cheney, and other administration officials for having stretched the intelligence community’s flawed assessments. Senator Pat Roberts, the chairman of the Senate intelligence committee, had decided that his committee’s examination of how the White House had used the faulty intelligence about Iraq would be put off—until after the election.*80 The committee also delayed its investigation of two other controversial matters: the work of Doug Feith’s intelligence cell at the Pentagon and the influence of Ahmad Chalabi’s Iraqi National Congress on prewar intelligence. The committee’s report rejected the charge that the White House had pressured intelligence analysts, but Democrats on the committee noted they disagreed with that conclusion.†5
The same day while speaking at Kutztown University in Pennsylvania, Bush thanked the intelligence committee for the report. He conceded there had been “some failures” and remarked, “Listen, we thought there was going to be stockpiles of weapons. I thought so; the Congress thought so; the UN thought so. I’ll tell you what we do know. Saddam Hussein had the capacity to make weapons…. He had the intent.” But UN inspectors hadn’t said there were weapons stockpiles before the war. In fact, during their preinvasion inspections, they had found no evidence of stockpiles. And Bush didn’t note that many of the members of Congress who had thought there were WMD stockpiles had been led to that view by briefings given by his administration. “They haven’t found the stockpiles,” Bush repeated, “but we do know he could make them.”
THE CIA leak case had changed its public complexion. It now seemed to be more about the confrontation between Patrick Fitzgerald and the news media than the leak itself. Fitzgerald, Eckenrode, and their investigators were still searching for evidence and trying to determine if there were criminal charges to be brought against Libby, Rove, and others. But they did so quietly and produced few, if any, leaks about their actions—which was uncharacteristic for a scandal-driven criminal probe in Washington. Fitzgerald, appropriately enough, was a leak-proof special counsel.
So the news of the case—when there was news of the case—centered on the public tussle between Fitzgerald and the media. And it seemed as though the hard-nosed prosecutor had the upper hand. In a landmark 1972 case Branzburg v. Hayes, the Supreme Court had ruled 5 to 4 that a journalist’s pledge to protect a confidential source must yield to a grand jury subpoena. The court declared that a grand jury investigating a crime must have access to “every man’s evidence,” and that included evidence from reporters. Floyd Abrams had b
een wrestling with the implications of Branzburg for three decades. He had argued for years there was some wiggle room in a concurring opinion by Justice Lewis Powell that suggested there should be a balancing test between the needs of the prosecutor and a free press. Abrams tended to be an absolutist on such matters and thought Fitzgerald had to be resisted. This was, he believed, the time to take a stand.
Other media lawyers looked at the particular facts of the leak case and had doubts about turning it into a crusade for media rights. They argued caution. After all, this was not about protecting a courageous whistle-blower who seemingly had exposed government corruption or malfeasance. It was about protecting high-level government officials who had been trying to tarnish a critic without leaving fingerprints. Was this case worth fighting over? Should journalists risk jail for this? A loss here—especially if it came in the form of a bad Supreme Court decision—could be a blow for journalism. Maybe this was a fight to avoid.
NBC News, after first opposing Fitzgerald’s subpoena, relented. When U.S. District Court Judge Thomas Hogan rejected the network’s challenge to the subpoena for Tim Russert’s testimony, the network’s lawyers decided to negotiate a deal with the prosecutor. On August 7, 2004, Russert quietly gave a deposition to Fitzgerald about the conversation he had had with Libby a little more than a year earlier. Under the terms hammered out with Fitzgerald by NBC, the prosecutor could only question the talk show host in a narrow fashion. But Russert did answer queries about the critical parts of that July 10, 2003, phone call.
Libby had told FBI agents and Fitzgerald’s grand jury that Russert had told him it was common knowledge among reporters that Wilson’s wife worked at the CIA. That had never happened, Russert told Fitzgerald. He said he had no recollection of knowing anything about Wilson’s wife when he had spoken to Libby that day “so it was impossible for me to have [told Libby] that.” Russert maintained he hadn’t learned about Wilson’s wife until he read about her the following week in Robert Novak’s column. When he did see Novak’s column, Russert testified, his reaction was, “Wow. When I read that, it was the first time I knew who Joe Wilson’s wife was and that she was a CIA operative…. It was news to me.” As Russert remembered it, Libby’s phone call on July 10 had been only about Chris Matthews. He would later tell colleagues that “not one word” Libby had attributed to him was true.
Fitzgerald now had direct testimony contradicting what the vice president’s chief of staff had told the grand jury. And his witness was about as credible as they come: a respected and widely known newsman.
Fitzgerald pushed ahead. Two days after Russert’s testimony, he served Pincus with a subpoena. On the same day, Judge Hogan unsealed a ruling he had made three weeks earlier in which he had found Time’s Cooper in contempt for refusing to testify to Fitzgerald’s grand jury. “We’re going to appeal it as far as it goes,” said Time Managing Editor Jim Kelly. But if the appeal failed, Cooper would face jail and Time could be fined $1,000 a day.
The leak case was front-page news once again—but as a battle between the prosecutor and the media. This had become the most significant clash of this sort in decades. “I think we’re going to have a head-on confrontation here,” remarked Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “I think Matt Cooper is going to jail.”
Fitzgerald was not done targeting journalists. On August 12, he subpoenaed Judy Miller. He was now attacking the Times—and Miller—from two directions. While moving against Miller on the CIA leak case, Fitzgerald, who was still U.S. attorney in Chicago, was also pressing ahead on the Islamic charities case. He had recently notified the Times that he had been authorized by the Justice Department to subpoena the phone records of Miller and Shenon. (As Fitzgerald subpoenaed journalists in the CIA leak case, one name was conspicuously absent from the list of recipients: Robert Novak. Some reporters following the case assumed—correctly—the conservative columnist was cooperating.)
The First Amendment face-off that Abrams had feared back in June had arrived—on two fronts. Fitzgerald’s double assault pushed him, Bill Keller, and Arthur Sulzberger, the Times’ publisher, to resist at all costs. As Sulzberger saw it, nothing less than the future of American journalism was at stake. And Miller was at the center of this crusade.
FOR Cooper, there did seem to be an easy way out. Fitzgerald was interested primarily in what Cooper had to say about Libby. With Libby’s phone records in hand, Fitzgerald assumed that Libby had been the administration source who had told Time about Joe Wilson’s wife. But Libby had said little to Cooper about Wilson’s wife. When Cooper had asked Libby about Valerie Wilson during a July 12, 2003, phone call, Cheney’s chief of staff had said only, “Yeah, I’ve heard that too.” The conversation seemed relatively innocuous and certainly not worth going to jail over.
The night before he was to be sentenced to jail, Cooper called Libby. “I’ve been called before the grand jury,” Cooper said, “and I think they’re going to ask me about a conversation we had about a year ago. Most of it was on the record, but part of it wasn’t, and I wanted to see if I could get your permission to talk about the part that wasn’t on the record.” Cooper had reason to hope; Libby had granted personal waivers to Russert and the Post’s Kessler. Libby told him that “to be safe” Cooper’s lawyer should talk to Libby’s lawyer. If it was okay with them, it was okay with him, Libby said. With this call, Cooper and Time were making their first accommodations with the prosecutor, just as The Washington Post and NBC News had already done.
Abrams, representing Cooper, talked to Libby’s lawyer and then reached an arrangement with Fitzgerald. On August 23, 2004, Cooper arrived in the Washington office of Abrams’s law firm for his deposition. It was a big moment for Fitzgerald. He was convinced Libby had been Cooper’s main source for the Time Web article that had mentioned Wilson’s wife—so convinced that the prosecutor had agreed to limit his questioning to Cooper’s conversations with Libby. There would be no questions about anybody else or any other subject. If Cooper testified that Libby had provided him the information on Wilson’s wife, Fitzgerald would have two witnesses who contradicted Libby’s testimony. With that, he could indict the vice president’s chief of staff for perjury and possibly for the leak itself.
But when Cooper answered his questions, Fitzgerald didn’t hear what he had expected. From what Cooper was saying, it was clear the Time reporter had learned about Wilson’s wife before he had spoken to Libby. Fitzgerald had Cooper recount his brief conversation with Libby over and over to make sure he wasn’t missing anything. Fitzgerald took a break so he could go huddle with his cocounsel. Then he came back and asked the same questions again. “He was obviously surprised at how little Matt had to say,” Abrams recalled.
Cooper’s account did conflict with Libby’s testimony. According to the Time reporter, Libby had not said to him that reporters had told the White House Wilson’s wife worked for the CIA and that he (Libby) didn’t even know that Wilson had a wife. So with Cooper, Fitzgerald did have one more journalist who could testify that Libby wasn’t telling the truth.
Yet Fitzgerald had a new and frustrating mystery. Cooper obviously had another source: an administration official who had first told him about Valerie Wilson. Fitzgerald and Eckenrode had interviewed every Bush administration official who they thought could possibly have been Time’s source. Nobody other than Libby had acknowledged talking to Cooper about Wilson’s wife. Somebody must have lied. Fitzgerald was determined to find out who it was.
WMD—I got it totally wrong…. If your sources are wrong, you are wrong.
—JUDITH MILLER, NEW YORK TIMES REPORTER
19
The Final Showdown
IT WAS the second night of the Republican National Convention—August 21, 2004—and Karl Rove was sitting in the CNN booth at Madison Square Garden. He was granting a rare television interview. Asked by reporter John King about the Democrats’ depiction of him as the president’s political wizard, Rov
e responded with a laugh. “Dr. Evil,” he cracked, might be the better description.
He then tore into John Kerry, the Democratic presidential candidate, assailing him as a “far left” candidate not “in sync” with America’s values. Rove distanced the Bush campaign—somewhat—from controversial TV ads being aired by a group called Swift Boat Veterans for Truth that accused Kerry of having exaggerated his Vietnam combat record. But he quickly added that he understood why some veterans were mounting this attack. Rove cited Kerry’s stint as a leader of the Vietnam War protest movement and claimed that Kerry had routinely portrayed his fellow servicemen as “war criminals.” Rove was deftly managing to disavow the ads while reinforcing their message.
King next turned to a subject Rove didn’t want to talk about: the CIA leak investigation. Administration officials had been questioned in the probe, King noted. “Can you tell us,” he asked, “that you had nothing to do with—”
Rove cut him off: “I didn’t know her name. I didn’t leak her name. This is at the Justice Department. I’m confident that the U.S. attorney, the prosecutor who’s involved in looking at this, is going to do a very thorough job of doing a very substantial and conclusive investigation.”
That’s all Rove would say, that he didn’t leak her name. But it seemed to King that the Bush campaign was concerned. Bush aides could control the campaign’s message—on Iraq, on terrorism, on the flaws of John Kerry. But they couldn’t control Fitzgerald. There was “some worry in the Bush campaign,” King said that night, that this “could be the October surprise”—political shorthand for a last-minute development that can influence an election. “If there are indictments or any progress in that investigation,” King noted, “that could be one of those events that tends to redirect the campaign.”
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