"Journalists are not entitled to promise complete confidentiality — no one in America is," Special Counsel Patrick Fitzgerald told a judge.
In court papers, Fitzgerald said the source of Matthew Cooper of Time magazine and Judith Miller of The New York Times has waived confidentiality, giving the reporters permission to reveal where they got their information.
The prosecutor did not identify the reporters' source, nor did he specify whether the source of each reporter was the same person.
Before the hearing, a small rally was held in a park beside the courthouse to urge Congress to pass a federal shield law protecting reporters from having to disclose their confidential sources. The rally, organized by the Communications Workers of America, drew about three dozen people in Washington. Organizers said similar rallies were occurring in Cleveland, Denver, Minneapolis, New York and Los Angeles.
U.S. District Judge Thomas F. Hogan held the reporters in civil contempt of court in October, rejecting their argument that the First Amendment shielded them from revealing their sources. Hogan was conducting a hearing on the matter Wednesday, at which time he could order the reporters jailed.
The reporters might decide to talk if they are sent to prison, the prosecutor said.
Cooper and Miller seek home confinement, but that would make it easier for them to continue to defy a court order to testify, the prosecutor said.
Cooper has said it is duplicative and unnecessary for him to testify because his employer, Time Inc., on Friday provided Fitzgerald records, notes and e-mail traffic from inside the company.
"By Cooper's own account, his source's confidentiality has been mooted by the production of relevant documents by Time Inc.," the prosecutor said, insisting that Cooper still must testify.
Without elaboration, Fitzgerald said Miller's source "has been identified and has waived confidentiality."
Miller's attorney, Robert Bennett, said he hopes that Time magazine's disclosures "will eliminate the need for Judy's testimony and this crisis can be ended."