Hendrik Hertzberg's "Talk of the Town" piece in this week's New Yorker leads with a lede about lede-burying, but may have left his own lede to languish lamely (sorry). In his commentary on the Matt Cooper/Judith Miller case, currently under consideration for appeal by the U.S. Supreme Court, he comments on political columnist Robert Novak, who was the first to out Valerie Plame:

It was Novak who outed the agent, but it is not Novak who is in trouble. Was he subpoenaed? If not, why not? If he was, and he refused to name his source, why isn't he in the same jail-bound boat as they are? If he did name names, why the relentless pursuit of Cooper and Miller? No one knows -- except Novak and the prosecutors.

It's the great mystery of the case, that and the eight blank pages of the appeal court decision. As 'Explainer' Daniel Engber said earlier this year on Slate:

Since he wrote the column outing Plame, he should have been the first witness on special prosecutor Patrick Fitzgerald's list. Indeed, it's possible that he was. Since grand jury investigations are secret, it's not clear whether Novak has already testified in front of the grand jury, has refused to testify, or has not been asked to testify at all. Neither he nor Fitzgerald will comment on the case.

So, Novak might have sung like a canary... But it's hard to imagine that Novak's testimony wouldn't have leaked out into the press. It's well-known, for example, that Tim Russert has testified, and that Matthew Cooper has already appeared before the jury. And if Novak had given up his sources, why would the prosecutor still be pursuing Miller and Cooper?

It's very unlikely that Novak would be charged with a crime, since all he did was report what others had knowingly told him....But if Novak refused to testify, he should be in the same boat as Miller and Cooper.

But he's not. Yet Matt and Judy are slammer-bound and this guy is totally out of the limelight. So here's the question: if public policy reasons protect Novak and Fitzgerald (secrecy of Grand Jury proceedings encourages information) then shouldn't public policy reasons force the disclosure of Novak's testimony (prevention the unjust deprivation of liberty on the part of defendents). Cooper thinks it would be "helpful" to know what Novak revealed, if only to establish how great the need for his own testimony is (but why does Novak get to demur and not Cooper/Miller)?

These questions exist, and the answers do too, somewhere. Hopefully Matt and Judy will get them one of these days.

THE MATT AND JUDY SHOW [New Yorker]
RELATED: What about Bob? [Slate]