Judy's Game

Mickey is wondering what Judy Miller is up to; Arianna Huffington has a big July 31 post, but treads water on Aug 1; and Richard Cohen of the WaPo joins in on Aug 2.  Since Mr. Cohen has a baffling intro, let's start there:

Judith Miller in Jail: Principle vs. Politics

By Richard Cohen

Before Judith Miller of the New York Times went to jail for not revealing her sources...

...Whatever her politics, whatever her journalistic sins (if any), whatever the whatevers, she is in jail officially for keeping her pledge not to reveal the identity of a confidential source. (If that's not the case, then we don't know otherwise.) That pledge is no different than the one Bob Woodward made to Mark (Deep Throat) Felt...

Hold on!  I am gloomily resigned to the Times promoting the notion of a secret source at every opportunity, but Mr. Cohen at the WaPo is under no obligation to join in - as per Justice Dept. guidelines, Fitzgerald has delivered to Ms. Miller a narrow subpoena ordering her to testify about her conversations with one named official.  Let's see, here is the WaPo covering the subpoenas last winter:

According to the appellate court's opinion, Fitzgerald knows the identity of the person with whom Miller spoke and wants to question her about her contact with that "specified government official" on or about July 6, 2003. Miller never wrote a story on the subject.

And here is a WaPo Q&A about this case, which might aid Mr. Cohen's understanding:

Q: Doesn't Fitzgerald know the identities of Miller's and Cooper's sources? Haven't the sources signed waivers that allow the reporters to talk to the prosecutor?

Yes and yes. But Miller, who did some reporting but never wrote a story, says that the waiver is not voluntary under these circumstances and that she is upholding the journalistic principle of never breaking a promise of confidentiality to a source.

This is not confusing, although the Times would like it to be - I suspect public sympathy for Mark Felt and protecting "identities" runs higher than public sympathy for protecting the reporter's side of a conversation when the official has already given his side.

Whatever his motive, here is a bit of obfuscation from NY Times editor Bill Keller on July 6, as Ms. Miller was jailed:

TERENCE SMITH: Now, the prosecutor made the point in court that not only does he know the identity of Judy Miller's source, that he -- that the source has signed a waiver of confidentiality, in which case, what is Judy Miller defending?

BILL KELLER: I don't know whether the special prosecutor knows the identity of her source. I do know this: that Judy Miller made an absolute pledge to her source that she would not reveal his name or the substance of their conversation, and to this point, she has received no waiver or release that she regards as freely given anyway from that source.

He doesn't know if Fitzgerald knows her source?  Has he read the subpoena?  He could break news here if Fitzgerald, the judges, and the WaPo are all wrong.

Apparently, in this snippet from Arianna (7/31/03), Bill Keller is delivering that same spin:

When asked by George Stephanopoulos on Nightline if he knew who Miller's source was, he refused to say yes or no.

So, what game is Ms. Miller playing at?  It is possible that in a broad sense, Keller is being truthful when he says that he does not know who Miller is protecting.  There has been speculation (fueled, no doubt, by Ms. Miller's own statement to Aaron Brown) that she is declining to testify about her current source (the WaPo says it is Libby, mostly) because she calculates that she will get the Matt Cooper treatment - Mr. Cooper complied with a subpoena to testify about Libby and got slapped with another one to talk about Rove.

However, perhaps some legal eagles can help me out here.  Suppose Ms. Miller were to comply with the subpoena to testify about Mr. X, who we think is Libby.  She then gets out of jail.  Suppose further that her testimony raises as many questions as it answers - in restricting her testimony to her conversations with Libby, she tells the grand jury that she passed to Libby the news that Valerie Plame was with the CIA and was involved with Wilson's trip, but refuses to reveal her source for that information.

Fitzgerald will want to know her source, of course.  But Justice Dept. guidelines do not allow a fishing expedition - he must show that he has exhausted all reasonable alternative means of learning her source before attempting to compel her testimony.

But what is reasonable?  Should he go out and interview everyone in the CIA who knew Ms. Plame and knew about the trip?  Why not?

And that could take months, or past the term of this grand jury.

Which means what?  My *guess* is that, if Ms. Miller is protecting a different source, she could testify about her talk with Libby and either run the clock out on this investigation, or re-fight the subpoena battle over a new name, if Fitzgerald ever comes up with one.

And if her source was her personal knowledge of Ms. Plame from previous reporting and networking?  We need legal advice on this point, but I would think that she could simply testify that she is not going to discuss how she came by her knowledge of Ms. Plame, since it was not in a conversation with Libby and therefore is not covered by the subpoena.

Which suggests, again pending legal advice, that if Ms. Miller was acting exclusively in her own self-interest, she could get out of jail and leave us, and Fitzgerald, wondering how she learned about Ms. Plame.

Now, since she is choosing to stay in jail, does this mean that she must be acting in noble defense of a journalistic principle?  Maybe.  Or maybe there is a book deal to consider, or maybe she and the Times figure that the embarrassment factor of disclosing that their reporter outed Ms. Plame to Libby is too ghastly to endure.

But being in jail can't be fun, either.  And if she was really protecting a source, I think she could get out, and battle Fitzgerald another day.  Which leaves me circling around - what principle, or person, is she protecting?

MORE:  TalkLeft has suggested that Miller really is protecting Libby, because she knows/suspects that some element of her testimony will be ghastly.  But does she also know that Libby perjured himself on that key point?  And if the topic was a "get Wilson" strategy meeting, have all the other meeting participants also perjured themselves?

Comments

[Trelaney]

TM, Do we know that Judy Miller did not actually write a story, or only that the NYT did not publish a story?

[kim]

Cherchez la femme, and the assistant to the Sulzbutler lives in the Keller.
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[Martin]

"or maybe she and the Times figure that the embarrassment factor of disclosing that their reporter outed Ms. Plame to Libby is too ghastly to endure."

As opposed to jail and the transparent obfuscation by Keller that you just diced through? Hope springs eternal.

Miller is just a garden variety pyschotic, to wit: "I was proved f..ing right" Um, no you weren't.

In any event-doesn't the continued public silence of the source Fitzgerald knows contradict Bush's pledge of "full cooperation." Why not a public display of "It's OK Judy-spill the beans?" It would at least shut Keller up. It might also make Miller testify.

Unless "full cooperation" is not really what they want after all.

[jeff]

If Miller could emabaress Libby, or any other Administration official, by testifying, she would do so. Miller has no source other than other journalists. Miller IS the SOURCE. She is protecting herself and the NYTimes ONLY. She is a pathetic joke.

[Martin]

And I'll be damned. I finally learn something from the Note.

They staked out the grand jury on Friday and the people showing up were all "close associates of Karl Rove."

[kim]

And that means?
===============

[Martin]

Absolutely nothing in the Universe of Delusion that is Kim World I'm sure.

[Mackenzie]

Jeff, if you look at Miller's reporting in 2002 and 2003, it does not make sense that she would embarrass Libby. She was obviously plugged into the senior levels of the White House, particularly the Office of the Vice President and NSC. Miller wrote several articles during the build-up to war about Iraq's WMD capabilities, containing leaked material from these and other related sources. When the story of Wilson's trip and criticisms broke in July '03, it would have been natural for her to contact her senior sources at the White House, or for them to contact her.

[Reg]

When asked by George Stephanopoulos on Nightline if he knew who Miller's source was, he refused to say yes or no.

Tom, you can go stronger: it's NYT policy that at least one editor must know a reporter's confidential source.

[J Mann]

Is it possible that Miller is protecting another source other than Mr. X, and feels that if she testifies that X is not the source, then she's breaching confidentiality to Y because she has reduced the number of source suspects from 30 or so down to 29 or so?

I know, it's absurd, but you never know.

[Geek, Esq.]

She's doing it to restore her street cred as a journalist. Her reputation coming into this was in tatters.

Now she's some sort of martyr and icon for journalistic ethics. Book deal!

Feh.

[kim]

And you, Martin, are a dweller in the Universe of Press Illusion.
=============================================

[Seven Machos]

Everybody is crazy or stupid except Martin.

[TM]

VERY good point by Reg, BUT... would that rule apply on as yet-unpublished story? Since it had not been written, her editors had not picked through it, would be the counter.

That said, the idea that Times is enduring this court fight with no idea of a destination seems unlikely.

[cathyf]

Fitzgerald will want to know her source, of course. But Justice Dept. guidelines do not allow a fishing expedition - he must show that he has exhausted all reasonable alternative means of learning her source before attempting to compel her testimony.

How true is this for an independent prosecutor? Ken Starr started out investigating the Clintons' involvement in Whitewater, and ended up with Monica. Of course that was under the independent prosecutor law, and Fitzgerald is not acting under that law (which has expired.)

Imagine that Libby has testified that Miller explained to him who "Joe Wilson's wife" was. (Possible scenario:
Libby: Wilson is lying when he says we sent him. The CIA picked him, and he was picked by one of their WMD analysts.
Miller: Oh, that was his wife who picked him -- she's on that team.
Libby: Oh, well, that makes sense. I was puzzled by how that worked.
)

The first logical question for Fitzgerald to ask would be for Miller's story of the conversation. If Miller's story is that she told Libby that "Joe Wilson's wife" was a CIA WMD analyst, then the next logical followup question would be how Miller knew that fact.

Does anyone know what is required for Fitzgerald to be able to ask that question in that circumstance? Can he just ask? Does he have to get another subpeona? If he needs another subpeona, does he duck out of the room, call a judge, and have one ten minutes later?

It should be pointed out that Miller and Fitzgerald have history. Fitzgerald was investigating a "Muslim charity" which was a Hamas front group. Somebody in Fitzgerald's office leaked to Miller, and Miller called the Hamas front group to "ask for comment." (i.e. tipped them off.) They had about 12 hours to shred documents and destroy hard drives before Fitzgerald could get a search warrent. If this is partly a personal grudge, I would expect that Fitzgerald would use every tool he could think of to find Miller's source. And given the structure of her job, that source is probably more likely to be CIA than White House.

cathy :-)

[kim]

Excellent, cathy, but in my naivete I assume Fitz would neither engage in grudgery nor need that kind of motivation to use every tool at his disposal.

And though Miller's source is more likely CIA than White House, I still think the single source argument is a smoked herring and Fitz is looking for fresher and bigger fish to fry. This guy acts pretty professional, and prosecuting a tarbaby like the DC gossip mill will not appeal to him.
==============================================

[Martin]

Brilliant Cathy-you transfer the revenge motives charged by the left to White House onto Fitzgerald and theorize the CIA referred the matter to the DOJ after internal review so that the DOJ could bust the CIA.

Meanwhile in the real world- Fitzgerald was calling in Rove's close associates last Friday.

There's a disconnect.

[kim]

Now cleaning out the CIA or reining in the maverick MSM might appeal to him as much as bashing fat cats did to a previous generation of prosecutors.
===============================================

[kim]

And what was he calling them in for, my dear Martin? What, you don't know?
====================================

[Martin]

Oh-I'm sure he was calling them in to tell them to pass on the boss that's everything is supergroovy.

[Syl]

First of all, Tom, I'm in awe. Your attention to detail is amazing. Your memory too...picking up the right quotes from the right sources in the right period of the timeline.

Second, Martin has a good point, in that why isn't Judith's source signing a special waiver? Of course, that's up to the lawyers and maybe Judith's lawyer doesn't want her to testify because it might lead to the very thing Tom, and others, mentioned. We don't know if any contact between Judith's lawyer and her source's lawyer was ever made. Or would some kind of contact between the two be SOP?

Third, perhaps the CIA is as much in the dark as everyone else. Judith may have known Plame for a very long time or her original contact is long gone and he didn't hit the radar during their internal investigation, whatever it was. Judith's name hadn't come up yet at the time the referral was made.

Fourth, maybe Fitzgerald is just tying up loose ends, dotting i's and crossing t's. It's possible yesterday's bunch were all associates of Libby or someone else and we don't know who will be there tomorrow.

[Jeff]

Just to be clear, jeff above (lowercase j) is not me, Jeff, who's been bothering you all for a while now. And for the record, i completely disagree with his first sentence, which shows woeful ignorance of where Miller stands vis-a-vis the Bush administration and probably stems from a conspiratorial view of the MSM (which cannot explain why Cooper kept his own confidence throughout the election), though I have no idea whether Miller is protecting someone in the administration, herself, or someone else.

[boris]

Thanks for clearing that up ... because nothing is as it seems ...

[TM]

OK, that straightens out the little jeff, Big Jeff puzzle.

For Martin, and Karl Rove watchers - the Note was as puzzled as the rest of us. Their key question (with no answer) - were the two Rove aides called before, or was this a first visit?

Things to think about - grand juries don't meet every day, but more like once every two weeks (someone might check that, but it is one reason they can be staked out).

So, it may just be that, having gotten Cooper's Rove-related notes in early July, Fitzgerald is tying up loose ends with Karl. For example, Karl claims (we think, via leaks) that he heard about Ms. Plame directly or indirectly from a reporter. Well, eventually, if Fitzgerald can talk to everyone Karl might have spoken to, he may find someone to confirm that.

Or, if he has scraped beneath the bottom of the barrel and come up empty, he might start to think about a perjury charge, I guess.

Anyway, my guess is that these two aides are negative evidence - two more aides who know nothing, and can't help Karl.

From Syl - why doesn't Libby emphasize to Ms. Miller that he has signed a darn waiver?

Well, I am not an attorney, but... my advice to Libby would be, look, right now Fitz is hung up - he can't indict you not knowing if Miller can exonerate you. Of course, he can't clear you either...

And you, Libby, don't know what Miller remembers. Unless you have confidence in her notes, memory, and honesty (and you might), then her silence is golden.

Now, is that "full cooperation"? Maybe not - he signed the waiver, and has stood pat. OTOH, Fitz worked out deals with Cooper, Pincus, Russert and Kessler to get their testimony on Libby, so its hard to say he has been a sticking point before this.

My advice as his attorney would be, ride it out.

[kim]

It is the duty of the prosecutor to ensure that justice is done. If that is establishing innocence, so be it.
==========================================

[Tollhouse]

The insane part is we are still in the grand jury phase. If they find a crime, then we get to do this all over again.

[Martin]

Not to worry Tollhouse-this will never get to that point. Getting rid of Fitzgerald is already in the works.

[kim]

Sure, Martin, sure.
===================

[kim]

You do know, Martin, that Fitz indicted bin Laden in 1998 for a worldwide terrorist conspiracy. Why would anyone want to get rid of him?
=================================================

[Reg]

...the idea that [the] Times is enduring this court fight with no idea of a destination seems unlikely.

Tom, you're understatement is so charming. By defying the court the NYT raises the stakes way beyond Miller's story... sorry Miller's non-story.

Keller has already admitted its lose/lose for the Times. But does he know his downside? If not, can I play poker with him?

Yes, Mr. Editor knows. On C-span he was asked this question by a caller and after stammering around gave a non-denial non-denial that would make a politician blush [no link, sorry].

When Miller choose jail she accepted the role as martyr for a free press. But the role of martyr needs a tragedy and I suspect all we have--at end-- is a farce.

[SamAm]

And Archibald Cox was a man of sterling repute! Who could have quarrel with such a gentleman?

Moving on.

I'm glad to see the date "July 6th" again, because this is the strongest piece of evidence we have as to Miller not being the source. There are bunches of information that show the White House looking for info on Wilson in early to mid June, information that was requested, summarized, and put in memos, information that got passed around the administration including the White House and the NSC. Information as to Plame's role. It's not plausible that on July 6th (the day Wilson's piece ran) that Miller would be the first person to break news as to Plame's status. It is not plausible. Miller would not be in a position to know, but even if she did beforehand she would not have been the first to tell the administration. If she knew, what are the chances other SAO's didn't? Zero. And I'd posit she did not know.

And even if she told Libby that information, what are the chances he didn't confirm it? Zero, because he had access to the information.

July 6th is very, very late. Even if Miller told them for the first time, they confirmed Plame's status. This was a co-ordinated campaign against Wilson; the WH got its ducks lined up.

Furthermore, if Miller told Libby, Libby would lean on her to testify, because that information is highly exculpatory. If the administration thought Miller got the info from a source other than Libby, they would have brought the hammer down to find who that was, because the mess that non-existant individual caused would have and has been hurting SAO's for almost 2 years. The WH would find who it was in a second.

Unless Miller's source was higher ranking than Libby. Which would mean it was Cheney, Rice, probably not Hadley or Powell or Tenet.

Furthermore, Miller had an ear to the ground at the NYT, especially on these type of issues. If she had info to give the WH, what are the chances she didn't give them a heads up before the 6th? Non existant. But I don't think they knew Wilson's piece was coming.

My scenario; work-up begins in mid June including Plame details, circulates among administration, Wilson publishes, Libby calls the most administration friendly source at the same forum Wilson used to begin push-back against him.

The White House didn't need a journalist to tell it information it and other parts of the administration requested a month before from government sources and channels.

[Crank]

Suppose Ms. Miller were to comply with the subpoena to testify about Mr. X, who we think is Libby. She then gets out of jail. Suppose further that her testimony raises as many questions as it answers . . . [she] refuses to reveal her source for that information.

Fitzgerald will want to know her source, of course. But Justice Dept. guidelines do not allow a fishing expedition - he must show that he has exhausted all reasonable alternative means of learning her source before attempting to compel her testimony.

But what is reasonable? Should he go out and interview everyone in the CIA who knew Ms. Plame and knew about the trip? Why not?

I would say that he should do so, although he may already have interviewed some of those folks. But certainly if there are conversations he can't get elsewhere, he would likely get the subpoena.

And that could take months, or past the term of this grand jury. Which means what? . . . [S]he could testify about her talk with Libby and either run the clock out on this investigation, or re-fight the subpoena battle over a new name, if Fitzgerald ever comes up with one.

Fitzgerald may be able to extend the term of the grand jury.

And if her source was her personal knowledge of Ms. Plame from previous reporting and networking? We need legal advice on this point, but I would think that she could simply testify that she is not going to discuss how she came by her knowledge of Ms. Plame, since it was not in a conversation with Libby and therefore is not covered by the subpoena.

That's probably right.

Which suggests, again pending legal advice, that if Ms. Miller was acting exclusively in her own self-interest, she could get out of jail and leave us, and Fitzgerald, wondering how she learned about Ms. Plame.

Of course, he's probably anticipated this problem, and will likely be ready to go back to court ASAP if he doesn't get what he needs.

[kim]

And my point has long been that once Wilson's piece was published, both MSM and the Admin mutually discovered that Plame's identity was no longer secret. And Wilson ran with his paranoid and opportunistic(what a combination; no wonder he matched wits with Saddam) notion of the rationale for it all.

And Fitz is figuring this out. Now who is he after?
==============================================

[cathyf]

Brilliant Cathy-you ... theorize the CIA referred the matter to the DOJ after internal review so that the DOJ could bust the CIA.

Well only a total moron would think that's what I said. So I suppose I'm not surprised you would read it that way.

The CIA referred to the DOJ because Joe Wilson accused the White House (specifically Karl Rove) of a crime, and it required an actual investigation by an actual professional prosecutor to determine whether a crime was committed and if it was, by whom. Do you really believe that the CIA's "internal review" was able to tell the CIA who first told which reporter that Joe Wilson's wife was a CIA WMD analyst, and that Fitzgerald's investigation was merely a schoolboy exercise so that Fitzgerald can find out what the CIA already knows??? (Ascribing god-like knowledge to the CIA is pretty funny, in that these are the clowns who couldn't even figure out the amount of weaponry that China was amassing. A set of facts available to anybody who reads newspapers and magazines.)

My point was the tremendous unpredictability of a special prosecutor investigation. Nobody knows what he is going to find until he finds it. The reason that both Democrats and Republicans let the independent prosecutor statute die is that it set up this whole horde of investigators with virtually unlimited resources who could go on one fishing expedition after another until they found something. Witness Ken Starr who started with a fraudulent land deal (Whitewater) then moved on to obstruction of justice (hiding of Rose Law Firm billing records), then corruption in Arkansas, and then homicide (ruling, after thorough investigation, that Vince Foster committed suicide) and finally ending up with enough evidence to prosecute for perjury. Clearly Fitzgerald is working under a different law than that, and I'm curious as to how much freedom he has to pursue other lawbreaking that he stumbles upon as he investigates. Back in the Watergate days, Jaworski and Cox were special prosecutors who predated the independent prosecutor law, and if I remember those days the only way to stop them was to fire them. Does Fitzgerald work under those rules? Or something more or less restrictive?

cathy :-)

[Martin]

"The CIA referred to the DOJ because Joe Wilson accused the White House (specifically Karl Rove) of a crime, and it required an actual investigation by an actual professional prosecutor to determine whether a crime was committed and if it was, by whom."

No you're the moron. The above is a total fantasy on your part. What idiotic rightwing propaganda are you reciting here-did Powerline say this or did you just make this upon your own?

[kim]

Just what is fantastical about that analysis?
==============================================

[Martin]

Kim-who is John Dion? Start there.

[Martin]

Then read this:

http://talkingpointsmemo.com
/docs/plame.cia.letter.pdf

(yes-it goes to TPM-but it's a pdf of a CIA letter).

Square it with Cathy's nonsense for me please.

[John]

"Not to worry Tollhouse-this will never get to that point. Getting rid of Fitzgerald is already in the works."

OK, Martin why don't you fill us in on where you got these talking points. Maybe you're starting to understand that Rove is unlikley to be frog marched out of the White House and already starting to look for someone to blame if your dream doesn't come true.

[Martin]

And here's the highlights if you don't do PDF:

"On July 24 2003...a CIA attorney [left a message with DOJ Counterespionage] noting concern with recent articles...and the CIA would forward a written crimes report pending the outcome of a review of the articles by subject matter experts."

"By letter dated July 30 2003 [to DOJ], ...CIA's Office of Security had opened an investigation."

"By letter dated September 16 2003 [to DOJ]...the CIA informed DOJ that the Agency's investigation into this matter was complete...and requested that the FBI undertake a criminal investigation of this matter."

[Martin]

Actually John-the Republicans in Illinois don't like Fitzgerald for reasons that have nothing to do with Plame, and Fitzgerald's term expires at the end of this year.

There are no R. Senators from Illinois-so Bush gets to ask Hastert for a recommendation to reappoint or appoint a new U.S. Attorney...well you see how this could go.

[Martin]

Still with me Kim? -next what did John Dion do in response to the CIA's letter? Hint: think questionnaire.

[boris]

See [s]marty-pants, you can't just tell people to go off and relearn whatever it is you think you know.

In addition to improving your reading comprehension, you need to work on putting together a coherent argument.

You've got the sinister attitude down pretty good, but there's just not enough real substance.

[Martin]

"The CIA referred to the DOJ because Joe Wilson accused the White House (specifically Karl Rove) of a crime.."

You agree with that Boris?

[kim]

Just tell me what was fantastical about her analysis and forget the 20 questions. Socrates you ain't.
==================================================

[Martin]

I agree Kim-and you're no slaveboy in the Meno, since the slaveboy was capable of learning.

Vaya con dios mis amigos.

[boris]

while you're at it, better insults would be appreciated.

[kim]

No, but I had a vivid dream about Egypt, once.
===============================================

[kim]

His insult was aporetic rather than poor.
=========================================

[vnjagvet]

Martin:

Sounds we're no further in the analysis than we were two weeks ago.

Your major point still seems to be that the CIA referred this matter for investigation.

That, however, is the beginning not the end of the process.

Were that not so, indictment would be tantamount to conviction, and that simply is not the way it works in our system.