Adam Liptak of the Times discusses the law behind the Plame investigation, and speculates about Robert Novak's situation:
Mr. Novak's role in the investigation has been a continuing mystery. Unlike the other five journalists involved in the case, Mr. Novak and his lawyer have declined to say a word about whether he is cooperating.
He has almost certainly been subpoenaed, and the available facts suggest he may have testified. Had he refused, his defiance would most likely have been followed by a public hearing for contempt of court like those held for other journalists.
Assuming he testified, though, why would his answers not have given Mr. Fitzgerald everything he needed? The answer may be that the officials who talked to Mr. Novak did not themselves have authorized access to information about Ms. Plame. In that case, the officials would not have committed a crime in talking to him.
In this situation, Mr. Fitzgerald would be seeking additional testimony from other journalists to determine whether their sources were authorized to know Ms. Plame's identity in the first place or to try to connect the dots between Mr. Novak's sources and whoever told them about Ms. Plame.
The notion that the Administration officials may have not committed a crime under this statute will come as a shock to some Times readers. Left unmentioned - the leakers may also be subject to more mundane laws against leaking classified information.
And has Novak been subpoenaed? Liptak presents no evidence. As to why he might not have been, one might hypothesize that the prosecutor wants to nail down every other story and every other detail before going after Novak.
And to highlight the possibility of a HUGE disappointment for Times readers, we will reprint the Oct 12, 2003 account provided by Walter Pincus of his conversation with the leaker. If Novak's story is similar to this, a prosecution would seem to be very difficult:
On July 12, two days before Novak's column, a Post reporter was told by an administration official that the White House had not paid attention to the former ambassador's CIA-sponsored trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction. Plame's name was never mentioned and the purpose of the disclosure did not appear to be to generate an article, but rather to undermine Wilson's report.
If the leaker did not name her, described her as a (non-covert) analyst, and did not intend to generate an article, proving that the leaker had both knowledge of Ms. Plame's covert status and the intent to out her may not be possible. Legal advice on this point is welcomed.