Robert Novak: How Does He Stay Out of Jail?

Last week, lawyers for Judith Miller and Matthew Cooper were in federal court fighting the reporters’ jail sentences for refusing to disclose who leaked them the name of a CIA operative.

So where was Robert D. Novak, the syndicated columnist, CNN talk-show host and uber-insider who started this mess back in July 2003? Citing sources in the administration, Novak had written that Valerie Plame, wife of a former U.S. diplomat critical of President Bush’s Iraq policy, was a CIA spy. Turns out it’s illegal for government officials to name spooks. Senators quickly called for an independent investigation, and the hunt for the leaker was on.

Miller, of the New York Times, and Cooper, of Time magazine, were hauled into court. They refused to testify and now face up to 18 months in jail for contempt. In Washington, there’s only one question more pressing than who leaked Plame’s name: Why isn’t Bob Novak going to jail?

Theory 1

Novak was never subpoenaed

D.C. bookies give this possibility the longest odds. Why would independent prosecutor Patrick Fitzgerald subpoena Miller, who never mentioned Plame in print, but pass on Novak? Fitzgerald refuses to comment on the case. Unless Novak, nicknamed the “Prince of Darkness” by his critics, has worked some bad mojo, it seems unlikely Fitzgerald would overlook the most obvious witness.

Theory 2

Novak was subpoenaed but refused to testify

This is also a long shot. Novak’s reputation as a publicity hound is almost as pedigreed as his punditry. Miller and Cooper have become 1st Amendment heroes by refusing to testify.

So if Novak also refused to talk, why isn’t he bragging about it? And why hasn’t Fitzgerald threatened to chain him in leg irons alongside Miller and Cooper?

Theory 3:

Novak was subpoenaed but (a) invoked his 5th Amendment rights or (b) received immunity

If Novak is a criminal suspect, he can refuse a subpoena to avoid self-incrimination. But it is unlikely Novak could be prosecuted for naming Plame, say legal experts. “To prove that Novak broke the law, a prosecutor would have to convince a jury that he was basically sitting in meetings with White House officials saying, ‘OK, this is how we are going to do this,’ ” said Floyd Abrams, a 1st Amendment expert representing Cooper and Miller.

Even if Novak is a suspect, there’s a wrinkle.

Courts have ruled that 5th Amendment protection disappears when prosecutors grant a witness immunity. Fitzgerald has declared the leakers his real target. So why not give the columnist a get-out-of-jail-free card in exchange for testimony?

Theory 4

Novak was subpoenaed and has already testified

This theory is a cocktail-party favorite. Novak is reviled by the left, who are angered by his loosely verified scoops and the effectiveness of his attacks.

Nearly every journalist interviewed for this article, all of whom demanded anonymity, said they thought Novak had already spilled his guts. The theories run from the pitying (“Bob wouldn’t last 12 seconds in jail. They don’t serve martinis in there”) to the conspiratorial (“The testimony was taken in private, it was totally secret, and I’m sure it was in a dark room. There may have been pentagrams and burning candles”).

If Novak has already testified, however, why is the investigation ongoing? Some suspect there are multiple leakers, so even if Novak revealed his sources, prosecutors want to make certain Miller and Cooper spoke to the same people. But if Novak did talk, why no arrests?

Theory 5

Novak is a target

As Abrams explained, it may be a long shot to prosecute Novak for printing Plame’s name. But what if the cover-up was the crime?

Let’s say Novak did something during the investigation that amounts to obstruction of justice or perjury. Fitzgerald, eager for a courtroom win but reluctant to indict a Bush official, may choose to focus on Novak, and is busy building his case.

Novak has denied this explanation. “To the regret of many people, I am not a criminal target,” he told a roomful of University of Wisconsin students this month.

If Miller has any regrets about taking the heat for Novak, she isn’t airing them. “I feel no animus against Bob Novak,” she said last week. “He’s a journalist and he should protect his sources. But given what’s at stake, I hope he will eventually disclose his own personal situation.”

For now, he’s not. “I don’t talk about the Plame case. Period,” said Novak, when contacted for this story.

“OK? Period.”