Ok, I can buy that

What with Deep Throat being outed, the scum that used to populate the White House were running around bleating that the man who put law and order above the Imperial Presidency was lower than a worm and less to be praised than reviled.

Scorn and derision is all they deserve, but the press was more than willing to let G. Gordon Liddy, Chuck Colson and Pat Buchanan float from studio to studio claiming Felt somehow did wrong (after all, he was in the FBI, so he ought not have bothered worrying about the President breaking the law, because the president was his boss, sort of, and the ring-giver is a sort of deity, to be followed without question).

Not present on these exhibitions of self exculpation (Colson and Liddy, you will recall went to prison for things they did at the behest of the president) was John Dean.

Dean's comments on Felt are interesting, they point out something I knew, twenty years ago when I read "All the President's Men"... Felt had people working with, or for him, who made it possible for him to talk to Woodward.

But that's not what I want to talk about. I want to talk about something else Dean recently said, in relation to something which is also about a source, in, or close to the White House, and the aftermath of that leak.

Judith Miller and Matthew Cooper are, almost certainly, going to face the dilemma of protecting a source or going to jail.

I used to be a reporter. I've never had a source I had to protect, but I recall the scorn and derision with which we cursed the couple of reporters who gave up sources (the one who revealed the source for his report on who gave John Belushi his fatal dose of heroin stands out). I also, as an editor, had to decide on the running of a few stories with anonymous sources. For the ones we ran, well as one who knew the names, I was at risk of being held in contempt if it came to that.

On the flip side, these days I work in military intelligence. I am not a spook, but I know spooks. Most are swell folks, doind strange and difficult work, in circumstances beyond imagining (having to recall which identity they met someone under, or sorting out a pair of wallets; to have all the right ID when they need to hand out a card... not my cup of tea).

When Novak released Plame's name, it offended me. It put those who knew her (whether they worked with her, or not) at risk. It harmed the nation's security. It has gone unpunished, and mostly unnoticed.

I have been pissed that Novak hasn't been haled into court and put to the question.

Because, for all I value an independent press, there is no privilege to breaking the law. Lawyers lose it when they collude with clients, so too should the press.

So the thing Dean points out here makes me feel better, though it has dark notes.

In a recent column, I explained why the U.S. Court of Appeals for the District of Columbia did not protect Miller and Cooper's ability to hide their sources - and why I believe the U.S. Supreme Court is very unlikely to step in. Someday soon, then, the grand jury is very likely to hear from Miller and Cooper - or else Miller and Cooper will opt for jail.



But beneath these legal issues, lies a mystery: Why has the investigation's focus fallen on them, in particular? Miller never wrote about the leak of Plame's identity; Cooper wrote about it well after Novak had included the leaked information in his column.

So these two would seem peripheral - but plainly, they are central. Why?

U.S. District Court Judge Thomas Hogan's opinion in the case gives one clue. In discussing the sealed affidavit filed by Special Counsel Patrick Fitzgerald, Judge Hogan noted that "the government's focus has shifted as it has acquired additional information during the course of the investigation" and "now needs to pursue different avenues in order to complete its investigation." Though vague, these references are also significant....

For months, it has been rumored that Fitzgerald has found only a low-level leaker in the White House - one who seems not to have violated the 1982 Intelligence Identities Protection Act, which makes it a crime to disclose an undercover CIA operative. But it is only criminal if the leaker knew the name was classified, and that the CIA sought to keep it classified. (A low-level person might not have had this knowledge.)

If so, that's odd. Remember, Novak credited two "senior" Administration sources. But let's suppose it's true. In that event, it is quite likely - and many lawyers following the case believe - that the investigation has shifted to possible charges of perjury and/or obstruction of justice, more than likely by big fish.

That would explain Judge Hogan's comment that the focus of the investigation, according to the government affidavit, has shifted. It would explain why a seasoned prosecutor has gone after Miller and Cooper, and why a number of federal judges have seen no problem in his doing so.

Finally, it would also explain why Cooper and Miller might now be central players: Their testimony may be needed to make a case of perjury or obstruction of justice.

Those are the bright points. The dark ones are here, "Though few believe the Supreme Court will rule for the reporters, as Hoyle note, the High Court might place the case "on its docket, which conceivably could push the resolution into 2006." It would take only four Justices' votes to do so.

If the Court declines to grant review, Special Counsel Fitzgerald can go ahead and force Cooper and Miller to testify, or face jail. But if it takes the case - and further delays it - the Special Counsel can do nothing.

For this reason, a Court decision to docket the case should raise deep suspicions. This, after all, is the Court that installed Bush and Cheney in the White House with its dubious Bush v. Gore ruling. Delaying this case until the backside of Bush's second term could give the White House a pass through the mid-term elections as well.

Such delay, then, would suggest complicity by the conservative bloc (those most likely to take the case) of the Court in Administration crimes. Imagine, by comparison, if conservatives on the Court had managed to delay the Court's ruling forcing Richard Nixon to turn over his tapes to the Watergate Special Prosecutor until after the 1974 mid-term elections. That would not only have helped Republicans in the mid-term elections, it would also have enabled Nixon to survive an impeachment conviction -- for there was no smoking gun until the Court acted.

Time will tell.