Cooper gave some testimony to the grand jury and then didn't want to give any more. It's my understanding, IANAL, that someone testifying can't pick and chose what they want to testify about. If one is called before a grand jury, one has to say what one knows or risk various contempt actions. The exception would be 5th Amendment issues (which don't apply to him or Miller in this case).

Miller is also refusing to give information to the grand jury. She's in the same boat - it doesn't matter that she didn't publish anything about Plame. Grand juries are very touchy about people refusing to testify.

At this point, it seems to me, based on my limited understanding, that Cooper and Miller aren't in trouble because they did or didn't release classified information. They're in trouble for refusing to testify before the grand jury. Whether it's a distinction without a difference is something others can argue about.

It's not yet clear whether Novak testified before the grand jury or not. I would think that he ultimately would if he hasn't already. If he didn't cooperate fully then he should end up with the same treatment if the law is to be impartial.

My $0.02. Corrections welcome.

[edit:] The 83 page .PDF of the decision today is [link|http://news.findlaw.com/wp/docs/plame/inregjmiller21505opn.pdf|here].

Cheers,
Scott.

[link|http://news.findlaw.com/wp/docs/plame/inregjmiller21505opn.pdf|Here], p. 10-11:

In rejecting the claim of privilege, the Supreme Court made its reasoning transparent and forceful. The High Court recognized that \ufffdthe grand jury\ufffds authority to subpoena witnesses is not only historic . . . but essential to its task.\ufffd 408 U.S. at 688 (citation omitted). The grand juries and the courts operate under the \ufffdlongstanding principle that \ufffdthe public has a right to every man\ufffds evidence,\ufffd except for those persons protected by constitutional, common law, or statutory privilege.\ufffd Id. (citations and internal punctuation omitted). The Court then noted that \ufffdthe only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.\ufffd Id. at 689-90. The Court then expressly declined \ufffdto create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy.\ufffd Id. at 690. In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish, the Court stated that it could not \ufffdseriously entertain the notion that the First Amendment protects a newsman\ufffds agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.\ufffd Id. at 692.

There are many things different about grand juries (e.g. your attorney can't be present), and there may be some restrictions on 5th Amendment protections, but I can't conceive of a person being subpoenaed to testify before a grand jury, incriminating himself, then being charged in a trial and having that testimony used against him. But stranger things have happened I guess. It was my understanding that 5th Amendment protections apply, but you must claim that protection from the beginning - as soon as you answer one question you have effectively waived your protection. [link|http://www.udayton.edu/~grandjur/feedback/feedbak1.htm|This] site says the 5th Amendment does apply to grand jury testimony if it is a valid claim. But if the prosecutor gives you immunity, then you have to testify even if it is incriminating.

Re: your last - let's not go there again, OK? :-)

Cheers,
Scott.