The New York Times is reporting that the investigation of the NSA leaks is progressing rapidly, even as it implies it is only the right wing which is concerned about it and quotes a lawyer (Mr. Boutrous) to the effect that the paper itself may be protected by a common law reporters' privilege.

WASHINGTON, Feb. 11 — Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.

The investigation, which appears to cover the case from 2004, when the newspaper began reporting the story, is being closely coordinated with criminal prosecutors at the Justice Department, the officials said. People who have been interviewed and others in the government who have been briefed on the interviews said the investigation seemed to lay the groundwork for a grand jury inquiry that could lead to criminal charges. [snip]

The Justice Department took the unusual step of announcing the opening of the investigation on Dec. 30, and since then, government officials said, investigators and prosecutors have worked quickly to assemble an investigative team and obtain a preliminary grasp of whether the leaking of the information violated the law. Among the statutes being reviewed by the investigators are espionage laws that prohibit the disclosure, dissemination or publication of national security information.

A Federal Bureau of Investigation team under the direction of the bureau's counterintelligence division at agency headquarters has questioned employees at the F.B.I., the National Security Agency, the Justice Department, the Central Intelligence Agency and the office of the Director of National Intelligence, the officials said. Prosecutors have also taken steps to activate a grand jury.

Perhaps Walter Pincus of the Washington Post should switch counsel  to Mr. Boutrous because he just lost that argument here, where such a prosecution would likely to be brought. I don't think it's a winning argument frankly. And should Bill Keller and the gang at 43rd Street be called to testify, I'd not put my faith in it.

There's much that's interesting in this story. First, the paper's tom— toming for the Plame investigation led to the rejection of a First Amendment claim of privilege by the paper in the Miller case. Secondly, the article makes clear that the investigators are FIRST looking to determine if the predicates for a statutory violation can be proven before initiating a demand upon reporters or initiating a prosecution——which would have been the path Fitzgerald should have chosen in the Libby case. For it is clear this preliminary bar was never met in that case, rhetoric in a press release being no substitute for actual evidence which he now claims isn't "material".

Clarice Feldman  2 11 06