Yesterday, TIME magazine delivered a fascinating Sunday puzzle when it told us that their reporter, Viveca Novak, was cooperating with the Fitzgerald investigation into the Plame leak:
Fitzgerald has now asked a second reporter in TIME's Washington bureau, Viveca Novak, to testify under oath about conversations she had with Robert Luskin, Rove's attorney, starting in May 2004, while she was covering the Plame inquiry for TIME. Novak, who is not related to columnist Robert Novak, who originally published Plame's name, is cooperating with the investigation.
David Johnston of the NY Times has more:
The reporter, Viveca Novak, who has written about the leak investigation, has been asked to testify by the special counsel in the case, Patrick J. Fitzgerald, about her conversations with Robert D. Luskin, a lawyer for Mr. Rove, the magazine said.
Time disclosed the prosecutor's request in a two-paragraph article published on Sunday, reporting that Ms. Novak had been asked to discuss conversations she had with Mr. Luskin, starting in May 2004, when she was covering the investigation.
The article said Ms. Novak was cooperating with the inquiry. It is not known when she will testify; she has not been asked to appear before the grand jury but will instead give a deposition, said Ty Trippet, a Time spokesman.
On Sunday, Mr. Luskin declined to comment, but he has previously said he expects that Mr. Fitzgerald will decide not to prosecute Mr. Rove. Ms. Novak declined to comment, as did Randall Samborn, a spokesman for Mr. Fitzgerald.
Ms. Novak is not known to have had discussions with Mr. Rove or other White House officials about the C.I.A. officer during the summer of 2003, the time that has been the focus of Mr. Fitzgerald's inquiry.
Nevertheless, the summer and fall of 2004 was a significant time for Mr. Rove, according to lawyers in the case. It was then that Mr. Rove searched for and found an e-mail message he had written that led him to recall the July 2003 conversation with Mr. Cooper, the lawyers said.
Mr. Rove's e-mail message was sent on July 11, 2003, to Stephen J. Hadley, who was then the deputy national security adviser. The message said Mr. Rove had spoken to Mr. Cooper about issues in the leak case.
After its discovery, Mr. Rove provided the message to Mr. Fitzgerald, who had not been aware of it. Mr. Rove testified about the conversation with Mr. Cooper in a grand jury appearance in October 2004.
Even so, Mr. Fitzgerald has investigated Mr. Rove's assertions that he had forgotten the conversation with Mr. Cooper, and why he made no mention of it in his earlier testimony and in meetings with investigators, the lawyers said.
In Ms. Novak's case, the magazine's apparently swift compliance contrasted with the legal battle waged by Time and Mr. Cooper, who for months resisted a subpoena from Mr. Fitzgerald for his testimony.
Yes, the swift compliance does make quite a contrast with their previous position. And TIME was criticized at the time for folding up, rather than making a stand for press freedom.
So, has TIME surrendered all notions of a free press, and does it now consider itself to be an arm of the Fitzgerald investigation? For some reason, in their statement they do not even address such questions as how or whether they hope to protect the confidentiality of their source, Robert Luskin. Now, we see him quoted by name in some of the articles that include a Novak byline, so some of what he said was on the record. But was all of it?
In my unexpected role of TIME apologist, I will hazard this guess - suppose Special Counsel Fitzgerald is asking Ms. Novak about information she may have passed to Robert Luskin. Specifically, suppose Ms. Novak told Mr. Luskin in May of 2004 that Matt Cooper believed he was being subpoenaed to testify about his side of a conversation with Karl Rove.
Well, then - it is far from clear why her questions to Luskin would be covered by any concept of source confidentiality. But if Luskin had been alerted in May 2004 that Cooper had talked to Rove, why did it take so long to discover the missing email? [Possible Luskin response - "I didn't believe her. Did I tell Karl? Sorry, that is privileged communication".]
It's just a guess. Now I'll tell you something that is not a guess - TIME ought to have explained this in their statement. Are they or are they not still attempting to protect their sources?
More links to possibly-relevant Viveca Novak articles here, and more links to follow. And as to how or why Fitzgerald discovered this Novak-Luskin connection now, as opposed to last summer or a year ago, I have no idea. However, it is surely an impressive coincidence that Ms. Novak had the big TIME interview with Woodward just last week. Unless, of course, it is not a coincidence. I have a fair-use excerpt of the TIME article here, but I don't see anything helpful like "By the way, this reporter also had a critical conversation with Robert Luskin in May of 2004".
However, the TIME article did end with this, so who knows?
During his time with the prosecutor, Woodward said, he found Fitzgerald "incredibly sensitive to what we do. He didn't infringe on my other reporting, which frankly surprised me. He said 'This is what I need, I don't need any more.'"
As a further aside - if our newly energized Special Counsel no longer respects DoJ guidelines about enlisting reporters, and if press freedom is no longer an issue, we eagerly await word that he has contacted Ms. Mitchell, again.
ReddHedd at firedoglake thinks Fitagerald is nibbling on the fringes of attorney-client privilege. [UPDATE: She calls a partial mulligan, and has a much more plausible new idea which, troublingly, builds on my own suggestion. Briefly, if Viveca told Luskin that Cooper talked to Rove, Rove may have been in imminent danger of discovery; this undermines (but does not eliminate!) the recantation defense.]
JeraLyn Merritt is too prudent to guess wildly, but she has helpful extracts from past TIME articles.
Swopa also wonders about press freedom, and I stole his puzzlement about the Novak-Woodward connection.
And let me propose a timeline correction - Matt Cooper was originally subpoenaed in May 2004. Eventually, that subpoena was modified to applay only to conversations with one named official, later revealed to be Lewis Libby. He then received a second subpoena in Sept 2004 which did not name any officials.
So a theory is that, as of September 2004, Fitzgerald believed Cooper had at least one more source, but did not know who the source was. Fitzgerald's surprise that Cooper had a second source comes from Cooper's own account [No, it doesn't. Hmm. Here we go.]; other details are from the appeal available at Fitzgerald's website.