Cooper and Miller: The Subpoenas

I'm beginning to think there may be clues we've overlooked in the D.C. Circuit Court of Appeals decision upholding the district court's denial of Cooper and Miller's motion to quash the subpoenas. Let's start with the subpoenas themselves:

The first subpoena to Cooper related to two specific Time articles dated July 17, 2003, and July 21, 2003, to which Cooper had contributed. After losing a motion to quash, Fitzgerald and Cooper made an agreement that Cooper would identify a specific person in whom the grand jury was interested. Cooper complied. (This was Libby who agreed to be identified.)

After Cooper complied, he got another subpoena dated September 13, 2004, seeking:

  • “[a]ny and all documents . . . [relating to] conversations between Matthew Cooper and official source(s) prior to July 14, 2003, oncerning in any way: former Ambassador Joseph Wilson; the 2002 trip by former Ambassador Wilson to Niger; Valerie Wilson Plame, a/k/a Valerie Wilson, a/k/a Valerie Plame (the wife of former Ambassador Wilson); and/or any affiliation between Valerie Wilson Plame and the CIA.

On August 2, 2004, Time Magazine got a subpoena seeking:

  • “[a]ll notes, tape recordings, e-mails, or other documents of Matthew Cooper relating to the July 17, 2003 Time.com article entitled ‘A War on Wilson?’ and the July 21, 2003 Time Magazine article entitled, ‘A Question of Trust.’”

As to Judith Miller:

In the meantime, on August 12 and August 14, grand jury subpoenas were issued to Judith Miller, seeking documents and testimony related to conversations between her and a specified government official “occurring from on or about July 6, 2003, to on or about July 13, 2003, . . . concerning Valerie Plame Wilson (whether referred to by name or by description as the wife of Ambassador Wilson) or concerning Iraqi efforts to obtain uranium.”

In the last concurring opinion to the decision, one of the Judges states:

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.

....we must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has.

Cooper said in the July 13 article, link above,

And some government officials have noted to TIME in interviews, (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction. These officials have suggested that she was involved in her husband's being dispatched Niger to investigate reports that Saddam Hussein's government had sought to purchase large quantities of uranium ore, sometimes referred to as yellow cake, which is used to build nuclear devices.

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