• If Novak took the 5th, for what crime did he take it? Most people agree his publicizing Plame's identity was not a crime. The law prohibits disclosure by those with authorized access to classified information and the like, not to journalists, unless they habitually make such disclosures. Was there a cover-up attempted - did Novak initially agree to one?

• Does Judith Miller have a weaker case? If so, is it because she never actually wrote about Plame but just was researching the story? Or is her case weaker because she wasn't really researching or working on a story, she got the info gratis as gossip?

• What information about other sources did Fitzgerald get from Matthew Cooper or from the information Cooper provided the first time around that makes him so determined to force his compliance with the second subpoena?

For those who may be new to the Plame investiation,

• Novak's initial column stated (NYTimes, Cirumspect Columnist, 12/31/04):

''Wilson never worked for the C.I.A., but his wife, Valerie Plame, is an agency operative on weapons of mass destruction. Two senior administration officials told me his wife suggested sending Wilson to Niger.''

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original post: 10:15 am

The D.C. Circuit Court of Appeals has ruled there is no reporter privilege that will shield New York Times reporter Judith Miller and Time Reporter Matthew Cooper from revealing their sources in the grand jury investigation into who leaked the identity of former C.I.A. operative Valerie Plame.

``We agree with the District Court that there is no First Amendment privilege protecting the information sought,'' Judge David B. Sentelle said in the ruling, which was unanimous.

Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse Tuesday's ruling. ``Today's decision strikes a heavy blow against the public's right to be informed about its government,'' Abrams said in a statement.

Miller and Cooper face up to 18 months in jail for their refusal to name their sources. Actually, it should be much less than that. They can go to jail for the life of the grand jury, which is 18 months. The grand jury has been meeting for some time, so it would only be for the amount of time left in its 18 month term. Unless, of course, the grand jury hasn't finished at the end of 18 months and a new grand jury is empaneled. Then the 18 months begins again.

If Miller or Cooper could prove to the satisfaction of a judge that they wouldn't talk no matter how long they were held, they could be let out. This is for civil contempt....should a criminal contempt proceeding be instituted, that's a whole different ball game.

Opinion is here. [Note: corrected to reflect opinion is by D.C. Circuit, not 2nd circuit as I originally wrote.]

Update: Orin Kerr at Volokh reports that bloggers and pajamas were referenced in a judge's separate opinion:

In a separate opinion rejecting the notion of a common law privilege, Judge Sentelle pointed out some of the difficulties of applying such a privilege in light of the blogosphere:

Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?