Josh Marshall says,

But if recollection serves, there are DOJ guidelines which say that prosecutors should exercise a great deal of discretion when trying to compel testimony from journalists. They're not supposed to do it just to tie up a few loose ends, but only if there's real and significant crime they're trying to prosecute. And before they do so, they're supposed to have exhausted all other possible ways to get at the information.

He's right. There are both U.S. Attorney Guidelines (contained here and here in the U.S. Attorney's Manual) and regulations (contained here, taken from the Code of Federal Regulations.)

Josh will be on Al Franken's radio show today. (update: appearance canceled.)

Valerie Plame has returned to work at the CIA after a year's leave of absence. She won't, however, be resuming undercover work.

There has been so much attention paid to the leakers and reporters in the case, it seems like the fact that a woman's life was turned upside down been lost in the shuffle.

Over at the Huffington Post, Lawrence O'Donnell has some sharp words for Robert Luskin, Karl Rove's lawyer, in response to Luskin's denial yesterday. Today, O'Donnell says (snip):

Luskin claimed that the prosecutor “asked us not to talk about what Karl has had to say.” This is highly unlikely. Prosecutors have absolutely no control over what witnesses say when they leave the grand jury room. Rove can tell us word-for-word what he said to the grand jury and would if he thought it would help him. And notice that Luskin just did reveal part of Rove’s grand jury testimony, the fact that he had a conversation with Cooper. Rove would not let me get one day of traction on this story if he could stop me. If what I have reported is not true, if Karl Rove is not Matt Cooper’s source, Rove could prove that instantly by telling us what he told the grand jury. Nothing prevents him from doing that, except a good lawyer who is trying to keep him out of jail.

Karl Rove's lawyer, Robert Luskin, responded to the growing swirl of of speculation about whether his client was the source the leak of Valerie Plames identity. Luskin says Rove did not reveal her identity.

Rove spoke to Time reporter Matthew Cooper in July 2003, during the week before published reports revealed the identity of operative Valerie Plame, the wife of Bush administration critic and former U.S. envoy Joseph Wilson.

In confirming the conversation between Rove and Cooper, Rove attorney Robert Luskin emphasized that the presidential adviser did not reveal any secrets. But the disclosure raised new questions about Rove and the precise role of the White House in the apparent national security breach as Cooper and another reporter, Judith Miller of the New York Times, face imminent jail terms.

Rove is no stranger to this grand jury.

by TChris

It is axiomatic that Supreme Court decisions are a matter of public record. If they weren't, they would be useless as precedent. Why, then, did the Justice Department classify as secret "a four-line quotation of a published Supreme Court decision"?

The culture of secrecy in government has flourished in the Bush administration. The NY Times reports that federal departments are "classifying documents at the rate of 125 a minute." What is it the Bush administration doesn't want you to know about its governance? Pretty much everything.

A record 15.6 million documents were classified last year, nearly double the number in 2001, according to the federal Information Security Oversight Office. Meanwhile, the declassification process, which made millions of historical documents available annually in the 1990's, has slowed to a relative crawl, from a high of 204 million pages in 1997 to just 28 million pages last year.

The administration's effort to avoid public scrutiny of its actions is so outrageous that even some Republicans are starting to complain.

Not surprisingly, Time Magazine has come under fire by journalists for its decision to turn over Matthew Coopers' notes in the Valerie Plame investigation. Bottom line: Reporters, watch your own back, Time won't do it for you.

After the Supreme Court refused to hear the case, [Time Editor- in-Chief Norman] Pearlstine says he concluded that TIME Inc. had an obligation to follow the law and obey the ruling. "An organization that prides itself on pointing its finger at people shouldn't be breaking the law itself," he said.

So the question is, should there be a federal shield law to protect reporters?

In the future, the best hope for journalists may be a federal shield law, now in Congress, which would let reporters keep sources confidential under any circumstances. Thirty-one states and the District of Columbia have shield laws, while 18 additional states have similar protections. A federal law has been proposed by Senator Richard Lugar and Representative Mike Pence of Indiana, who have signed up dozens of co-sponsors

Update: Here's an argument against a federal shield law.

According the Washington Post on October 12, 2003, Special Prosecutor Fitzgerald's focus was on the month before the Novak column:

In their interviews, FBI agents are asking questions about events going back to at least early June, the sources said. That indicates investigators are examining not just who passed the information to Novak and other reporters but also how Plame's name may have first become linked with Wilson and his mission, who did it and how the information made its way around the government.

Jump to right after the Novak column appeared:

Via Atrios, Newsweek's Mike Isikoff wrote this today:

Now the story may be about to take another turn. The e-mails surrendered by Time Inc., which are largely between Cooper and his editors, show that one of Cooper's sources was White House deputy chief of staff Karl Rove, according to two lawyers who asked not to be identified because they are representing witnesses sympathetic to the White House. Cooper and a Time spokeswoman declined to comment. But in an interview with NEWSWEEK, Rove's lawyer, Robert Luskin, confirmed that Rove had been interviewed by Cooper for the article. It is unclear, however, what passed between Cooper and Rove.

Crooks and Liars points us to a March 6, 2004 CNN article reporting that Air Force One records were subpoenaed in the Valerie Plame grand jury investigation, and to America Blog who has a flashback to President Bush's statement of October 6, 2003 in which he told his staff to cooperate with the grand jury investigation.

I'm beginning to wonder, and it's only a musing at this point not an allegation, given all of the Administration officials who were interviewed by the grand jury or who testified before the grand jury, including President Bush, Vice President Cheney, Colin Powell, Scott McClellan and others, and the reporters other than Miller and Cooper who previously revealed their sources to the grand jury (e.g., Tim Russert and Walter Pincus,) whether there might not be more than one person who perjured themselves, or whether there might have been a plan for the real source to mislead the grand jury - or a coverup designed to protect the real source, which could constitute obstruction of justice.

Here are some some more flashbacks to prior reported information. I'll leave it to readers to connect any dots. All sources are available on Lexis.com:

Update: Crooks and Liars has the O'Donnell video.

Over at Huffington Post today, Lawrence O'Donnell says he has confirmed that Karl Rove is the one who leaked the identify of Valerie Plame and Newsweek is now working on a big story about it.

I revealed in yesterday's taping of the McLaughlin Group that Time magazine's emails will reveal that Karl Rove was Matt Cooper's source. I have known this for months but didn't want to say it at a time that would risk me getting dragged into the grand jury.

McLaughlin is seen in some markets on Friday night, so some websites have picked it up, including Drudge, but I don't expect it to have much impact because McLaughlin is not considered a news show and it will be pre-empted in the big markets on Sunday because of tennis.

Since I revealed the big scoop, I have had it reconfirmed by yet another highly authoritative source. Too many people know this. It should break wide open this week. I know Newsweek is working on an 'It's Rove!' story and will probably break it tomorrow.

Special Prosecutor Fitzgerald has stated in court pleadings that he already knows the identity of Judith Miller and Matthew Cooper's sources regarding the senior white house official who leaked the identity of CIA operative Valerie Plame to Robert Novak.

Miller did some reporting for a story but never wrote an article. She has maintained she intends to go to jail rather than reveal her source -- though Fitzgerald has indicated in court filings that he already knows that official's identity.

So, why is it so necessary for them to provide the information?

As the Wapo article suggests, the investigation has moved from one involving the identity of the White House official to one involving perjury - i.e., a cover-up. The source may have been questioned in front of the grand jury and lied.

Knowing the identity of the source is not enough for a perjury conviction. There must be two witnesses to the perjurious statement. Telephone records would not be enough, because they only provide the number dialed, not the identity of the person speaking. Matthew Cooper's and Judith Miller's e-mails and notes may provide that corroboration.

Reporters Matthew Cooper and Judith Miller have submitted their jail designation requests to the Judge. It will be interesting to see what the Judge recommends, and whether the Bureau of Prisons follows the Judge's recommendations.

Judicial recommendations are not binding on the Bureau of Prisons. However, if BOP does not follow a judge's recommendations, it must send a letter to the Judge explaining why. The defendant is not allowed to read the letter. Only the Judge and the Probation Department get to see it.

Contempt time is often called "dead time" and is usually served in a county or local jail. For example, if a federal prisoner gets called to the grand jury and refuses to testify, he or she will get contempt time added to their criminal sentence, to be served in the county hoosegow after their release on their federal sentence. Miller and Cooper aren't serving criminal sentences, though, and the Judge can recommend what he sees fit. Again, BOP might or might not honor the Judge's recommendation.

For Cooper, the local jail is the Washington D.C. jail, which as his lawyers note in their request, is a maximum security facility.