WASHINGTON -- A possible constitutional conflict between the press and the Senate will begin tomorrow morning, when a reporter refuses to tell a special prosecutor who leaked him Anita Hill's sexual harassment charges against Supreme Court nominee Clarence Thomas.
"I'm going to tell them I can't discuss confidential sources, and I cannot discuss the method . . . to get the story," said Newsday reporter Timothy Phelps, who will cite First Amendment protection of the press.
Two other reporters who have been subpoenaed also will say the First Amendment shields them from revealing sources to special prosecutor Peter E. Fleming Jr., hired by the Senate to discover the leaks that led to the electrifying Thomas hearings and stories about the dealings between savings and loan executive Charles Keating and five senators.
In the wake of the Thomas hearings last fall, Republicans demanded an investigation of the leaks. Democrats agreed, but urged that it be widened to include news leaks about the ethics investigation into the "Keating Five" senators, four of whom were Democrats.
Washington Times reporter Paul M. Rodriguez, who has been ordered to give his deposition to Mr. Fleming on Friday, will be asked to name sources of stories he wrote about the Keating Five, while National Public Radio's Nina Totenberg is scheduled to appear Feb. 24 about her stories on Anita Hill's charges.
Their silence could lead to a contempt-of-Congress charge, which carries a penalty of up to a year in jail.
It may be the first battle between Congress and the press since 1976, when CBS correspondent Daniel Schorr refused to tell the House Intelligence Committee where he received a classified House report on U.S. intelligence agencies. The committee voted 6-5 against recommending that the House seek to prosecute Mr. Schorr.
"I will not divulge or provide any clues as to my sources. Period. I cannot do that," said Mr. Rodriguez. Ms. Totenberg's lawyer, Floyd Abrams, also said she will not name names, and cited a 1981 federal court ruling against compelling a reporter to disclose news sources.
Mr. Fleming, who did not return phone calls, can ask the Senate Rules and Administration Committee to require the reporters to testify after they refuse to answer his questions. Should that occur, Committee Chairman Wendell H. Ford, D-Ky., has said he would convene the full committee to hear both sides.
Senator Ford issued a statement saying he would not comment on the case before a committee vote.
But some observers say the constitutional matter may end at the committee level. A committee staffer noted that the Kentucky senator has traditionally been "a strong proponent of the First Amendment," and some senators have said privately that they do not want to become embroiled in the sticky legal issue.
"All it can do is to lead to an unnecessary confrontation between the Senate and the press," wrote Mr. Abrams, Ms. Totenberg's lawyer, in a Jan. 28 letter to Sen. Robert C. Byrd, D-W.Va., president pro tem of the Senate. "Any effort to require a journalist to disclose his or her confidential sources raises First Amendment concerns of the highest order."
"If these questions are brought to the committee, I intend to consider both sides' views with an open mind," Mr. Byrd said in a statement on the Senate floor two days later. "Ultimately, the full Senate may consider a recommendation by the Rules Committee to take actions to enforce a subpoena."
Congress has a long history of trying to get reporters to reveal their sources.