Is Novak a target?

Maybe Novak was never subpoenaed because he was marked early on as a likely defendant.

What follows is pure speculation. I have no information on this that is not in the public domain.

Everyone wants to know why Robert Novak is still walking around free when Judith Miller is behind bars.

I had been assuming what seemed to be the simplest theory, one embraced also by David Corn (who has gotten less credit than he deserves as the first journalist to break the story of the White House unmasking a CIA undercover officer): that Novak talked when subpoenaed. That might still be right, but he’s been more or less denying it, and the truth is likely to come out if there’s a trial. Novak is, of course, a liar by trade — not for nothing was old column called “Errors and no-facts” — but getting caught in that particular lie would be pretty embarrassing.

So assume for the moment that Novak hasn’t testifed. Why, then, isn’t he facing sanctions for contempt? Who is it who can get away with not testifying before a grand jury?

Answer: a target of the investigation. Once a prosecutor intends (as opposed to merely hoping) to indict someone, he is required to write that person’s lawyer what’s called in the trade a “target letter,” putting him on notice of that fact. Usually, a “target” who indicates his intention to invoke his Fifth Amendment right against self-incrimination will not even be called before the grand jury.

If the prosecutor were only pursuing charges under the Intelligence Identities Protection Act, Novak as a journalist couldn’t be charged, and therefore wouldn’t be a target. But if, in addition or instead, Fitzgerald is looking for an Espionage Act case, then Novak is just as guilty as his source or sources, and might indeed have been a target of the investigation from the get-go.

As I say, this is pure speculation. But it does seem to cover the facts, and I’m not sure any other theory does.

If it’s true, it doesn’t mean that Novak won’t eventually be a witness against Rove or someone else; but he would be testifying as part of a plea agreement. Building an airtight case against Novak as a way of forcing him to give up his sources might have been a perfectly reasonable prosecution strategy.

That would, of course, make it even sillier for various media outlets to keep allowing Novak to comment on the case as if he were a candidate for a Pulitzer rather than a prison cell.

Footnote Flipping over this line of reasoning, the contempt citation against Judith Miller suggests that she is not (or not yet) a target.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: