Kos and others are pointing out that Fitzgerald is zeroing in on Rove, but I hardly find that news. Once Cooper’s notes confirmed Rove was the person in question, it was obvious who Fitzgerald is going after. From the Appeals Court Decision
Cooper refused to comply with the subpoena, even
after the Special Counsel offered to narrow its scope to cover
only conversations between Cooper and a specific individual
identified by the Special Counsel. Instead, Cooper moved to
quash the subpoena on June 3, 2004. On July 6, 2004, the Chief
Judge of the United States District Court for the District of
Columbia denied Cooper?s motion in open court, and confirmed
the denial with reasoning set forth in a written order issued on
July 20, 2004
…………………
Applying this standard to the facts of this case, and
considering first only the public record, I have no doubt that the
leak at issue was a serious matter. Authorized ?to investigate
and prosecute violations of any federal criminal laws related to
the underlying alleged unauthorized disclosure, as well as
federal crimes committed in the course of, and with intent to
interfere with, [his] investigation, such as perjury, obstruction of
justice, destruction of evidence, and intimidation of witnesses,?
see Letter from James B. Comey, Acting Attorney General, to
Patrick J. Fitzgerald, United States Attorney, Northern District
of Illinois (Feb. 6, 2004), the special counsel is attempting to
discover the origins of press reports describing Valerie Plame as
a CIA operative monitoring weapons of mass destruction. See
majority op. at 3-5. These reports appeared after Plame?s
husband, former Ambassador Joseph Wilson, wrote in a New
York Times op-ed column that his findings on an official mission
to Niger in 2002 cast doubt on President Bush?s assertion in his
January 2003 State of the Union address that Iraq ?recently
sought significant quantities of uranium from Africa.? See id. at
3.An alleged covert agent, Plame evidently traveled overseas
on clandestine missions beginning nearly two decades ago. See,
e.g., Richard Leiby & Dana Priest, The Spy Next Door; Valerie
Wilson, Ideal Mom, Was Also the Ideal Cover, Wash. Post, Oct.
8, 2003, at A1. Her exposure, therefore, not only may have
jeopardized any covert activities of her own, but also may have
endangered friends and associates from whom she might have
gathered information in the past. Acting to criminalize such
exposure of secret agents, see 50 U.S.C. ? 421, Congress has
identified that behavior?s ?intolerable? consequences: ?[t]he
loss of vital human intelligence which our policymakers need,
the great cost to the American taxpayer of replacing intelligence
resources lost due to such disclosures, and the greatly increased
risk of harm which continuing disclosures force intelligence
officers and sources to endure.? S. Rep. No. 97-201, at 10-11
(1981), reprinted in 1982 U.S.C.C.A.N. 145, 154-55.
The leak of Plame?s apparent employment, moreover, had
marginal news value. To be sure, insofar as Plame?s CIA
relationship may have helped explain her husband?s selection for
the Niger trip, that information could bear on her husband?s
credibility and thus contribute to public debate over the
president?s ?sixteen words.? Compared to the damage of
undermining covert intelligence-gathering, however, this slight
news value cannot, in my view, justify privileging the leaker?s
identity.
……………………………..
In sum, based on an exhaustive investigation, the special
counsel has established the need for Miller?s and Cooper?s
testimony. Thus, considering the gravity of the suspected crime
and the low value of the leaked information, no privilege bars
the subpoenas.One last point. In concluding that no privilege applies in
this case, I have assigned no importance to the fact that neither
Cooper nor Miller, perhaps recognizing the irresponsible (and
quite possibly illegal) nature of the leaks at issue, revealed
Plame?s employment, though Cooper wrote about it after
Novak?s column appeared. Contrary to the reporters? view, this
apparent self-restraint spares Miller and Cooper no obligation to
testify. Narrowly drawn limitations on the public?s right to
evidence, testimonial privileges apply ?only where necessary to
achieve [their] purpose,? Fisher v. United States, 425 U.S. 391,
403 (1976), and in this case the privilege?s purpose is to promote
dissemination of useful information. It thus makes no difference
how these reporters responded to the information they received,
any more than it matters whether an attorney drops a client who
seeks criminal advice (communication subject to the crime-fraud
exception) or a psychotherapist seeks to dissuade homicidal
plans revealed during counseling (information Jaffee suggested
would not be privileged, see 518 U.S. at 18 n.19). In all such
cases, because the communication is unworthy of protection,
recipients? reactions are irrelevant to whether their testimony
may be compelled in an investigation of the source.
Indeed, Cooper?s own Time.com article illustrates this
point. True, his story revealed a suspicious confluence of leaks,
contributing to the outcry that led to this investigation. Yet the
article had that effect precisely because the leaked
information?Plame?s covert status?lacked significant news
value. 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.
The most important part is this
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
Bold mine
Karl Rove is who Fitzgerald is after and it’s clear from the court filings. It might be that Karl Rove is going to avoid being prosecuted, but his actions in this case are deplorable. Most likely, he won’t get away with it, but the continuing defense of him is sickening.