John Dean, former White House counsel to Richard Nixon and columnist for Findlaw's Writ, has taken another look at the legal situation of Judith Miller, reporter for the NY Times, and Matthew Cooper, the White House correspondent for Time.

Both reporters have refused to testify before a grand jury investigating the Valerie Plame affair, and in October of 2004 were held in contempt by a U.S. district judge, who prescribed jail time and a $1000-per-day fine. Neither is in jail or paying a fine at the moment because the judge stayed the order while the two appeal.

Their appeal to the U.S. Court of Appeals was rejected in February of this year, and now their petition for a rehearing by the full court was rejected on April 19. So there's only the Supreme Court between the reporters and the pokey.

Dean thinks the Supreme Court will refuse them a hearing. For one thing, Chief Supreme Court Justice Rehnquist supported the 1972 decision in Branzburg, the case that is at the heart of the government's power to compel the reporter's testimony.

The most intriguing part of all this is the sealed affidavit that the government's Special Counsel Patrick Fitzgerald presented to the judge. No one knows what it contains, but the judge referred to it in a ruling in November—

"In his ex parte affidavit, Special Counsel outlines in great detail the developments in this case and the investigation as a whole," he [the judge] explained. "The ex parte affidavit establishes that the government's focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation." (An ex parte affidavit is one to which the other side in the dispute is not privy.)

Another point of interest is an idea that Dean put forth in a previous column. Dean thinks it likely that the actual leaker was a National Security Council (NSC) staffer rather than a White House employee. But he reasons that federal fraud and conspiracy statutes may apply to members of the White House staff—

It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.

What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." [emphasis in original]

As for Miller and Cooper, Dean thinks their best hope is either that Rehnquist retires and is replaced by a more press-friendly justice (fat chance!) or that someone steps forward to assume responsbility for the leak—

It is time for anyone who leaked information to either of these reporters to step forward and reveal themselves—

This is particularly true if the person (or persons) who leaked information to Miller and Cooper was also the person (or persons) who leaked Valerie Plame's CIA identity to Novak and others. For that source to watch Miller and Cooper go to jail for their principles, would be craven indeed: A case of the innocent suffering to benefit the guilty....

Only Miller and Cooper's source(s), by stepping forward, can prevent a potential miscarriage of justice. He or she must do so forthwith.

Fat chance.