WASHINGTON - Invoking the wisdom of the walrus in Lewis Carroll's Through the Looking Glass, a federal judge said yesterday that the "time has come" to decide the fate of two reporters whom he found in contempt last fall for declining to reveal the name of a Bush administration source.
The leak is believed to have blown the cover of a CIA agent.
For a moment during the hearing in U.S. District Court, Judge Thomas F. Hogan sounded as though he was about to send the two reporters, Matthew Cooper of Time magazine and Judith Miller of The New York Times, to jail right away. Ultimately he gave them 48 hours to file papers saying they would comply or face an order for incarceration at a hearing Wednesday.
"This has been pending for many, many months," Hogan said, turning aside a request by both reporters' lawyers for two more weeks to prepare arguments for, among other things, leniency in sentencing. "The time has now come to proceed."
The matter reverted to Hogan after the U.S. Supreme Court announced Monday that it would not consider the reporters' predicament, which arose from a column by Robert D. Novak in July 2003 that used leaked information to identify covert CIA agent Valerie Plame.
A special prosecutor, Patrick J. Fitzgerald, was appointed to look into the leak, widely believed to have come from the White House in retaliation for a New York Times Op-Ed column written by Plame's husband, Joseph C. Wilson IV, in which he said President Bush used unreliable information when he said in his 2003 State of the Union address that Iraq had sought to buy uranium from Niger.
Novak appears not to have been targeted and has refused to speak publicly about the issue, although he might have avoided prosecution by cooperating with the grand jury.
Again invoking Carroll's work, Hogan said he found it "curiouser and curiouser" that the lawyers would ask for more time, even as they gave no indication that Miller or Cooper intended to abide by the court's demand that they give a grand jury the name of their source.
Time Inc. lawyer Theodore Boutrous Jr. implied that the company, and not Cooper himself, might well turn over documents that would reveal the source at the heart of the case.
"We are grappling with these issues," Boutrous said. The company, which faces heavy fines in the case, "wants to make the right decision," he said, in order to avoid "this crisis" of journalists being sent to jail.
Cooper wrote about the leak for Time.com, while Miller had conversations on the subject but never wrote about it. Attorneys for the two argued that the reporters simply were protecting their sources. An appeals court rejected their argument that the First Amendment shielded them from revealing sources.
On Monday, when the Supreme Court declined to hear their case, the reporters ran out of legal options, essentially clearing the way for them to serve up to 18 months in jail.
In court yesterday, Robert S. Bennett, a lawyer for Miller, suggested gently that the court might consider being circumspect: "It is a big step to put two people in jail who have committed no crime but who have been caught in what Your Honor described as the perfect storm."
Fitzgerald, the special prosecutor, asked the judge to give the reporters no special treatment. "They should comply with the court's directive," he said. "This is a final order."
The editor-in-chief of Time Inc., Norm Pearlstein, declined before the hearing to expand on whether Time would divulge the source's name in order to spare Cooper a spell in jail.
"I've been saying since November that we want to pursue every possible legal remedy," Pearlstein said. "So long as we're pursuing every legal remedy, we're not going to say anything beyond that."
Times publisher Arthur O. Sulzberger Jr. would not offer a prediction of what the judge might do: "He doesn't call us." Sulzberger declined to comment further "unless something really outrageous happens."
At the end, Sulzberger escorted Miller out of the building to a waiting car. They did not speak with reporters.
When Cooper emerged, his personal lawyer, Richard Sauber, confirmed that his client would not testify before the grand jury: "It's Matt's intention to accept the civil sanction."
Cooper said there was "no shame and no dishonor in fighting all the way to the Supreme Court." He said he would prefer that Time Inc. not divulge the source's identity. "But a corporation is different than a citizen," he said. "Time can make the decision for themselves."
Sun staff writer Mary Carole McCauley contributed to this article.