The special counsel's argument is persuasive. As Libby admits, in mid-June 2003, when reports first appeared about the Niger trip, the vice president informed Libby "in an off sort of curiosity sort of fashion" that the Niger envoy's wife worked at the CIA's counterproliferation division. (I-50-55, 245-46.) In addition, handwritten notes by Libby's CIA briefer indicate that Libby referred to "Joe Wilson" and "Valerie Wilson" in a conversation on June 14. (8/27/04 Aff. at 12.) Nevertheless, Libby maintains that he believed he was learning about Wilson's wife's identity for the first time when he spoke with NBC Washington Bureau Chief Tim Russert on July 10 or 11 regarding coverage of the Niger issue by MSNBC correspondent Chris Matthews. (I-162-69; 8/27/04 Aff. at 9-10.) According to Libby, Russert told him, "[D]id you know that Ambassador Wilson's wife works at the CIA? . . . [A]ll the reporters know it." (I-166.) Claiming to have been "a little taken aback by that," Libby testified, "I said, no, I don't know that intentionally because I didn't want him to take anything I was saying as in any way confirming what he said, because at that point in time I did not recall that I had ever known, and I thought this is something that he was telling me that I was first learning." (I-166.)

Russert recalls this conversation very differently. In his deposition, describing Plame's employment as a fact that would have been "[v]ery" significant to him --one he would have discussed with NBC management and potentially sought to
broadcast--Russert stated, "I have no recollection of knowing that [Wilson's wife worked at the CIA], so it was impossible for me to have [told Libby] that." (I-43, 32.) Asked to describe his "reaction" to Novak's July 14 column, Russert said, "Wow. When I read that--it was the first time I knew who Joe Wilson's wife was and that she was a CIA operative. . . . [I]t was news to me." (I-433.)

Also contrary to Libby's testimony, it appears that Libby discussed Plame's employment on several occasions before July 10. (See 8/27/04 Aff. at 11-12.) For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on
July 7, the day before Libby's meeting with Miller, Libby told him, "[T]he Vice-President did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e was sent by his wife. . . . [S]he works in . . . the Counterproliferation area of the CIA." (II-545-47.) Describing the lunch as "kind of weird" (II-590-91), and noting that Libby typically "operated in a very closed-lip fashion" (II-592), Fleischer recalled that Libby "added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t." (II-546-47.) Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson's wife. (I-108-09, 156, 226-27.)

As to the July 12 conversation, * * * * * [REDACTED] ** * * *

Libby called several journalists, including Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had
ordered the trip, to which Libby responded, "[Y]ou know, offthe-record, reporters are telling us that Ambassador Wilson's wife works at the CIA and I don't know if it's true. . . . [W]e don't know Mr. Wilson, we didn't know anything about his mission, so I don't know if it's true. But if it's true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information." (I-203- 06.) According to Libby, Miller, too, said something that
"triggered" him to mention that "reporters had told us that the ambassador's wife works at the CIA." (I-207-09.)

In contrast, in a deposition limited to Cooper's contacts with Libby (see II-32-33, 107), Cooper said that he (Cooper) asked Libby "something along the lines of what do you know about Wilson's wife being involved in, you know, sending him on this mission?" (II-53.) According to Cooper, Libby responded, "[Y]eah, I've heard that too" (II-54), which Cooper took as confirmation (II-81-91).

• * * * * [REDACTED] * * * * *

Given the evidence contradicting Libby's testimony, the special counsel appears already to have at least circumstantial grounds for a perjury charge, if nothing else. Miller's testimony, however, could settle the matter. If Libby mentioned Plame during the July 8 meeting--and Miller's responses to the documentary subpoena suggest she has notes from that conversation (see 8/27/04 Aff. at 19-20)--then Libby's version of events would be demonstrably false, since the conversation occurred before he spoke to Russert. Even if he first mentioned Plame on July 12, as he claims, inconsistencies between his recollection and Miller's could reinforce suspicions of perjury.

What's more, if Libby mentioned Plame's covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become
viable. Thus, because Miller may provide key corroboration or contradiction of Libby's claims--evidence obviously available from no other source--the special counsel has made a compelling showing that the subpoenas directed at Miller are
vital to an accurate assessment of Libby's conduct.

Regarding Cooper, * * * * *[REDACTED] * * * *

...In any event, as with the Miller subpoenas, the evidence sought from Cooper appears essential to accurate understanding of events and could obviously provide
information unavailable elsewhere. Thus, again, the special counsel has shown that this evidence is crucial to accurate decision-making by the grand jury.

As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out
covert work overseas within the last 5 years"--representations I trust the special counsel would not make without support.(8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA's counterproliferation division (I-53-55, 245-46), * * * * * [REDACTED] * * * * *

Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked Novak to withhold her name, stating that "although it is very
unlikely that she will ever be on another overseas mission . . . it might be embarrassing if she goes on foreign travel on her own" (II-168-69), a statement that strongly implies Plame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment.

Finally, while it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have
impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be tantamount to punishing the leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby * * * * * [REDACTED] * * * * *

The court continues with it's legal conclusion.

In sum, based on an exhaustive investigation, the special counsel has established the need for Miller's and Cooper's testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas.

[Note, I had to reformat the text in the opinion, if a word or character is missing, it's my transcription not the court order. Check the original for perfect accuracy.]