A couple of weeks ago, I reported something that the press seems not to care about: though he didn't reveal the fact in his "tell-all column," Novak was subpoenaed about a conversation he had with Scooter Libby. In this post, I will show how they may have tried to hide that conversation from investigators.
As a reminder, here are the two places where Libby's team reveals that Novak was subpoenaed about a conversation with Libby. From an October 30 filing:
At various times during 2004, the grand jury issued subpoenas to reporters who had spoken to Mr. Libby. These reporters reacted to the subpoenas in different ways. Certain of them (such as Robert Novak, Glenn Kessler and Walter Pincus) testified without mounting legal challenges to the subpoenas they had received.
And, from a November 21 filing:
Of the six reporters subpoenaed to testify about their conversations with Mr. Libby, three of them (Robert Novak, Glenn Kessler, and Walter Pincus) testified without mounting any legal challenges.
So we know that Novak was subpoenaed to talk about a conversation with Libby, apparently in 2004.
Now, Libby was asked twice to sign waivers freeing journalists to speak about conversations they had with him, first on November 26. But at that point, he refused to sign the waiver, because he wanted to limit the waiver to journalists he testified about (which, in the earlier filing he lists to include Judy, Russert, Cooper, Kessler, Evan Thomas of Newsweek, and David Sanger of New York Times).
In 2003, Mr. Libby offered to sign confidentiality waivers that were personal to each reporter to whom he had spoken about the subject matters under investigation. The FBI refused this offer, and asked for a general blanket waiver.
(Though it's possible that Libby only wanted to sign waivers about those he admitted to discussing Plame with, which would leave out Sanger (to whom he leaked the NIE) and perhaps Thomas.)
When Libby did finally agree to sign a waiver (on January 5, 2004, after Fitzgerald was appointed), the waiver specified it was valid only wrt conversations having to do with Plame. The waiver read:
I request any member of the media with whom I may have communicated regarding the subject matters under investigation to fully disclose all such communications to federal law enforcement authorities. In particular, I request that no member of the media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit in connection with the subject matters under investigation.
...Where "subject matters under investigation" included:
the possible disclosure to unauthorized persons of classified information in connection with Ambassador Joseph Wilson, his trip to Niger in February 2002, and matters relating thereto.
In other words, his waiver only extended to conversations pertaining to Wilson and the leaking of classified information. Which, if he claimed he had not discussed Wilson with Novak, would mean the waiver did not extend to Novak.
Now let's look at Novak's own story of how he decided to testify. In his "tell-all" column, Novak neglects to mention that he was subpoenaed about a conversation he had with Libby. More interestingly, he has a bizarre description of the "dilemma" he faced when Fitzgerald first asked to interview him.
An appointment was made for Fitzgerald to interview me at Swidler Berlin on Jan. 14, 2004. The problem facing me was that the special prosecutor had obtained signed waivers from every official who might have given me information about Valerie Wilson.
That created a dilemma. I did not believe blanket waivers in any way relieved me of my journalistic responsibility to protect a source.
[snip]
But on Jan. 12, two days before my meeting with Fitzgerald, the special prosecutor informed Hamilton that he would be bringing to the Swidler Berlin offices only two waivers. One was by my principal source in the Valerie Wilson column, a source whose name has not yet been revealed. The other was by presidential adviser Karl Rove, whom I interpret as confirming my primary source's information. In other words, the special prosecutor knew the names of my sources.
When Fitzgerald arrived, he had a third waiver in hand -- from Bill Harlow, the CIA public information officer who was my CIA source for the column confirming Mrs. Wilson's identity.
This has always struck me as incredibly bizarre, even for Novak. He was having a dilemma about testifying ... until Fitzgerald came to him and basically told him he was only going to be interviewed about Armitage, Rove, and Harlow. Then, all of a sudden, his dilemma was resolved and he could testify without violating source protection.
This makes no sense. If a blanket waiver is the problem, it would remain a problem even if Fitzgerald brings individual copies of three blanket waivers to the interview. They're still blanket waivers!
I have always assumed Novak's self-described dilemma had more to do with testifying about people beyond the three he included in his safe narrative about the source of his leak.
And one more interesting point. Both Novak and Libby objected to the same thing: blanket waivers that would allow the FBI to pursue conversations beyond the few they had testified to in Fall 2003. And of course, if they had had their way, Novak should never have testified about his conversation with Libby. Call me crazy, but I find it striking that both were trying to protect conversations using the same justification.
Two more addenda. First, it's not clear exactly how much Novak did testify to, with regards to Libby. In his "tell all," he said he did not answer any questions about subjects unrelated to the Plame case.
In these four appearances with federal authorities, I declined to answer when the questioning touched on matters beyond the CIA leak case.
Now, this reads an awful lot like Novak-speak. Anne Kornblut, at least, has reported that Novak has testified once since the indictment. So maybe in his 2004 interviews, Novak didn't talk about Libby, but after Libby was indicted, Novak did testify further? Or perhaps Novak's testimony related directly to the Plame leak, and he just didn't want to tell anyone about it???
And finally, there is the detail that first got me looking for the missing Libby-Novak conversation. When Libby's surrogate telegraphed to Judy how she should testify in her grand jury appearance, the surrogate made it clear that she should not mention a conversation between Novak and Libby.
Libby did not talk to Novak about the case, the source said.
Perhaps it's all a coincidence--kind of like the coincidence that Novak and Libby both happened to be concerned about blanket waivers. But it's an awfully remarkable coincidence.
Update: Kornblut link added. Rove/Novak error corrected per folkbum.