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In his deal with Miller, the prosecutor agreed to limit the scope of her testimony before the grand jury, focusing only on the reporter's conversations with sources about Plame, according to her lawyer Bennett. Miller wanted to rule out of bounds any questions about her reporting on WMD, a lawyer involved in the case told TIME. What remains unexplained is why Miller could not have reached an agreement much earlier. In the case of TIME's Cooper, a deal was made with Libby and Fitzgerald that led to Cooper's testimony in August 2004, after Fitzgerald indicated he was interested only in Cooper's conversations with Libby. Cooper called Libby himself to ask for a waiver; Libby asked Cooper to have his lawyer, who happened to be Abrams, call Tate to work out the details. Two other journalists, Glenn Kessler of the Washington Post and Tim Russert of NBC News, also gave testimony on their conversations with Libby.
The cases of the New York Times and TIME journalists both involved the surrender of documents, although under different circumstances. Miller, who never actually wrote a story based on her reporting about the Plame leak, was originally subpoenaed along with the Times. After the newspaper said it had no relevant documents to hand over and that Miller's notes--and the decision whether to turn them over--belonged to her alone, the court pursued only the subpoena against Miller. (The notes she gave up were redacted to omit discussions about anything other than Plame.) In the Cooper case, the prosecutor went after e-mails and other information stored on computers owned by Cooper's employer, Time Inc., which was subpoenaed and held in contempt when it refused to turn over the documents. That decision rested with Time Inc. editor-in-chief Norman Pearlstine, who, after fighting the prosecutor all the way up to the U.S. Supreme Court (it declined to hear the case), eventually decided to honor the subpoena last July. Soon after, Cooper, who had refused to testify after getting a second subpoena and was facing jail time, testified once he received a specific waiver of confidentiality from another White House source, Karl Rove, via Rove's lawyer.
Whatever the reasons for the delay in the Miller case, the two sides were pushed toward a deal by external forces at work in both camps. Pressure had been growing on Libby from G.O.P. lawmakers to take whatever steps necessary to free Miller from her imprisonment. And there was the possibility that Miller was looking at more time in jail than she had bargained for. Although Fitzgerald is expected to finish this month, he has no obligation to do so. He could have boosted Miller's civil contempt charge to a criminal one or shifted the probe to a new grand jury, a step that could have meant more jail time for Miller.
But if the legal logjams have been cleared, few in the newsgathering business are pleased by the outcome. The murky sequence of events in the case tended to obscure the principles that journalists were trying to defend. "This case was a complete loser for the press," says Jay Rosen, chairman of New York University's school of journalism. "It exposed this traffic in secrets. And whenever the press is claiming rights that are an exception from the rest of the public, then I think it works against the press." --With reporting by Mike Allen/ Washington and Nathan Thornburgh/New York