Last week, lawyers for Judith Miller and Matthew Cooper were in federal court fighting the reporters' jail sentences for refusing to disclose who leaked them the name of a CIA operative.
So where was Robert D. Novak, the syndicated columnist, CNN talk-show host and uber-insider who started this mess back in July 2003? Citing sources in the administration, Novak had written that Valerie Plame, wife of a former U.S. diplomat critical of President Bush's Iraq policy, was a CIA spy. Turns out it's illegal for government officials to name spooks. Senators quickly called for an independent investigation, and the hunt for the leaker was on.
Miller, of the New York Times, and Cooper, of Time magazine, were hauled into court. They refused to testify and now face up to 18 months in jail for contempt. In Washington, there's only one question more pressing than who leaked Plame's name: Why isn't Bob Novak going to jail?
Theory 1
Novak was never subpoenaed
D.C. bookies give this possibility the longest odds. Why would independent prosecutor Patrick Fitzgerald subpoena Miller, who never mentioned Plame in print, but pass on Novak? Fitzgerald refuses to comment on the case. Unless Novak, nicknamed the "Prince of Darkness" by his critics, has worked some bad mojo, it seems unlikely Fitzgerald would overlook the most obvious witness.
Theory 2
Novak was subpoenaed but refused to testify
This is also a long shot. Novak's reputation as a publicity hound is almost as pedigreed as his punditry. Miller and Cooper have become 1st Amendment heroes by refusing to testify.
So if Novak also refused to talk, why isn't he bragging about it? And why hasn't Fitzgerald threatened to chain him in leg irons alongside Miller and Cooper?
Theory 3:
Novak was subpoenaed but (a) invoked his 5th Amendment rights or (b) received immunity
If Novak is a criminal suspect, he can refuse a subpoena to avoid self-incrimination. But it is unlikely Novak could be prosecuted for naming Plame, say legal experts. "To prove that Novak broke the law, a prosecutor would have to convince a jury that he was basically sitting in meetings with White House officials saying, 'OK, this is how we are going to do this,' " said Floyd Abrams, a 1st Amendment expert representing Cooper and Miller.
Even if Novak is a suspect, there's a wrinkle.
