Powers of Press, Politicians Clash in Probe of News Leaks : Senate: Testimony in Thomas-Hill and ‘Keating Five’ investigation begins today. Reporters say they will cite First Amendment, not reveal sources.

A low-key investigation into news leaks about sexual harassment charges against Supreme Court nominee Clarence Thomas and the “Keating Five” conflict-of-interest case appears likely to become a high-profile constitutional confrontation between the press and politicians.

At issue is the Senate’s broad power to investigate the leaks and the First Amendment’s guarantee of press freedom, which most journalists believe gives them the right to protect confidential sources.

The theoretical debate will become a concrete one at 10 a.m. today, when Timothy Phelps, a 44-year-old Newsday reporter who covers the Supreme Court, is scheduled to appear in Room 640-B of the Senate’s Hart Office Building. He will be there in response to a subpoena from the Senate’s special counsel, Peter E. Fleming Jr.

Phelps--the first journalist to report the sexual harassment allegations against Thomas by University of Oklahoma professor Anita Faye Hill--and others who broke parts of the story, including National Public Radio’s Nina Totenberg, have been asked to testify about the case.

The reporters uniformly say that they will appear as required and will acknowledge authorship of the stories. But then, they say, they will refuse to answer any questions that might reveal their confidential sources.

They and their attorneys argue that the public is better served by having facts emerge than by forcing reporters to disclose who first furnished those facts. Once confidentiality is violated, the reporters contend, the sources of information vital to public understanding will dry up.

“People will not talk to me if they think I’m going to talk to the investigator and it’s important to the American people, who have the right to know what their government is up to,” Phelps said.

If they refuse to testify after being ordered to do so by the Senate Rules Committee and the Senate, they could face contempt of Congress charges--a criminal offense--and ultimately a prison sentence if convicted. As of now, neither the reporters nor key senators believe that such an outcome is likely.

The Senate could ask a federal district judge to compel the reporters to answer questions about their stories or risk contempt of court penalties.

Totenberg, a legal affairs reporter for National Public Radio who obtained the first interview with Hill on the issue, has been summoned to appear Tuesday, along will Bill Buzinberg, vice president of news and information at NPR.

“There’s no possibility that I’m going to respond to the questions,” she said.

She said that Hill’s allegations raised a serious question about a nominee to a lifetime position on the Supreme Court and justified closer scrutiny than the Senate Judiciary Committee had provided up to that point.

“If there was ever a justification for the First Amendment, this was it. . . ,” she said. “There’s no law-breaking involved, and perhaps not even any rule-breaking, either.”

In addition to trying to determine who leaked the information about Hill’s allegations, the inquiry also will focus on another series of leaks from the Senate Ethics Committee’s examination of the actions of five senators on behalf of former savings and loan executive Charles H. Keating Jr., who has been convicted in California of fraud.

Four of the senators were criticized by the committee for their willingness to accept Keating’s contributions while he was seeking their help on regulatory matters.

The fifth, Democratic Sen. Alan Cranston of California, was reprimanded by the Ethics Committee for soliciting nearly $1 million in contributions from Keating while agreeing to intervene on his behalf with federal thrift regulators.

A reporter involved in the Keating controversy also has been subpoenaed. Paul M. Rodriguez, who works for the Washington Times, said that he expects to be asked about his articles on the Keating Five inquiry and possibly about a story on the Thomas-Hill controversy. His articles on Keating recounted some details of a preliminary finding by the Ethics Committee.

Like his colleagues, however, he has pledged not to name his sources.

Similar past congressional efforts to uncover leaks generally have failed.

In 1976, the House Ethics Committee spent five months and interviewed 385 people in an attempt to discover who leaked a copy of a House Intelligence Committee report to Daniel Schorr, then a CBS correspondent in Washington.

When Schorr was subpoenaed and warned that he was risking prosecution by remaining silent, he still refused to tell the committee how he got the document, pleading the First Amendment as his main defense. A week later, frustrated lawmakers gave up and released Schorr from his subpoena; the source of that leak remains undisclosed.

After the furor over the Thomas confirmation, however, the Senate decided to travel the path once more.

Fleming, a New York lawyer, was selected jointly by Senate Majority Leader George J. Mitchell (D-Me.) and his Republican counterpart, Sen. Bob Dole (R-Kan.). Operating from a modest first-floor office behind painted-over glass doors, Fleming has kept a low profile since his appointment.

“I ain’t talking and I ain’t going to talk,” he told a reporter.

But--in contrast to the traditional practice of U.S. attorneys--he apparently has started with subpoenas to reporters rather than issuing summons to Senate employees who work for the Senate Judiciary Committee and could lose their jobs if they refused to cooperate with the special counsel.

But Fleming has circulated a 14-page questionnaire to senior staff aides, seeking information about their knowledge of Hill’s statements to the committee and the way they became public. Presumably he will follow up with interviews or subpoenas, if necessary, before the inquiry is over.