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Reporters Get 1 Week to Name Sources

A federal judge says he'll then jail journalists for Time magazine and the New York Times.

June 30, 2005|Richard B. Schmitt | Times Staff Writer

WASHINGTON — A federal judge, citing President Nixon and author Lewis Carroll, gave reporters for Time magazine and the New York Times one more week to reveal sources to a Justice Department prosecutor investigating the unmasking of a CIA operative or go to jail.

U.S. District Judge Thomas F. Hogan also stepped up pressure on Time Inc., publisher of Time magazine, to comply with the court order by threatening to hit the media giant with a "very large" fine. The special prosecutor in the case, Patrick J. Fitzgerald, also warned that he might seek contempt charges against individual officers of the company.

There were indications that Time Inc. was considering turning over some documents to the prosecutor, and that a decision could come as early as today.

The reporters, Judith Miller of the New York Times and Matthew Cooper of Time, had been previously held in contempt for refusing to cooperate in the probe.

Their appeal to the U.S. Supreme Court was rejected Monday. Time Inc. also had been held in contempt.

Hogan said that if Time Inc. failed to turn over documents that might shed light on Cooper's sources, he would impose a fine on the media company that would be meaningful for the company's "size and net income."

The documents are not believed to be Cooper's notes -- which might be considered his property -- but rather internal documents such as e-mails that would be company property. This solution would enable Cooper to say he did not personally betray his sources.

"On balance, I think I'd prefer they not turn over the documents but Time can make that decision for itself," Cooper said outside the courthouse.

The company faces its own set of legal pressures.

"I don't know how a corporate board could meet and agree to break the law," Fitzgerald said. "I don't know what Time can deliberate about."

In court papers for Wednesday's hearing, Fitzgerald said Time Inc.'s chief executive should be required to explain in open court any decision not to obey the order. The CEO of Time Inc., which is a unit of Time Warner Inc., is Ann Moore.

A spokeswoman for Time Inc. in New York, Dawn Bridges, declined to comment.

" 'The time has come,' the walrus said," Hogan intoned, quoting from Carroll's "Through the Looking-Glass" at a hearing attended by dozens of journalists, top editors for both publications, and a swarm of lawyers.

The journalists, through their lawyers, reiterated that they did not intend to comply with the order to turn over their sources.

"I think at this point he is prepared to accept the coercive effect of the court's ruling," Richard Sauber, a lawyer for Cooper, told Hogan.

"It is a big step to put two people in jail who have committed no crime," said Robert Bennett, a lawyer for Miller.

Hogan asked the lawyer if Miller planned to continue to defy the order to reveal her sources.

"That is correct, your honor," Bennett replied.

A lawyer for Time, Theodore J. Boutrous Jr., said at the hearing that the magazine was looking for ways to resolve the case, and that the magazine was studying "every single alternative to avoid journalists going to jail."

Boutrous also asked the court for more time to raise other arguments because the magazine wants to "see if we can somehow resolve this."

Hogan rejected the proposal, and said that at the hearing next week he would focus first on the magazine's case before turning to those of the individual journalists.

Fitzgerald said if Time cooperated it would "short circuit" the process. He did not elaborate, but his statement was presumed to mean that the documents it turned over would disclose the identity of the sources.

Last October, Hogan ordered the reporters jailed for 18 months, or the remaining term of a grand jury investigating the leak case, whichever was shorter, pending appeal. He indicated Wednesday that could mean up to four months in jail -- the remaining term of the federal grand jury hearing Fitzgerald's case.

Fitzgerald, the U.S. attorney in Chicago, was named by the Justice Department to investigate how the name of a CIA operative, Valerie Plame, ended up in a newspaper column by syndicated columnist Robert Novak in July 2003.

The column followed by days an opinion article in the New York Times by Plame's husband, former envoy Joseph C. Wilson IV, who took to task since-discredited Bush administration claims about Iraq's nuclear intentions.

Among other issues, Fitzgerald is investigating whether the White House may have leaked the name of Plame to journalists in retaliation for the Wilson column.

Federal law makes it a crime to intentionally divulge the identity of a covert agent.

However, for at least nine months, the investigation has focused on the two reporters instead of on who leaked the information to Novak.

On Wednesday, Novak said in an interview with CNN that he regretted the fact that journalists might go to jail in the case but he felt no personal responsibility.

Novak has declined to say whether he has revealed his sources to Fitzgerald.

Hogan said Wednesday that if people were free to violate court orders, "there would be anarchy." He drew a comparison to the case of Nixon, who was ordered after an arduous legal fight to turn over White House tapes that sealed the fate of his presidency.

"We are sort of at the point where President Nixon was before he had to turn over the tapes," Hogan said.

The judge ordered lawyers for Cooper and Miller to file papers by Friday that would include their view of "appropriate sanctions." Fitzgerald is to respond by Tuesday at noon.

Hogan set a hearing on the merits for Wednesday afternoon.

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