Judy Miller has negotiated her release from jail, and a particular wrinkle has me baffled. From ABC:
After obtaining her waiver [from Libby], Miller said her lawyers secured an agreement with Fitzgerald to narrow the scope of her testimony to her conversations with that single source.
No, Judith Miller sat in jail until the prosecutor agreed that she would not have to testify about any source of the information about Valerie Plame other than Libby. Miller had multiple sources, and everyone already knew that she talked to Libby. The real question is, who was her other source? Some have speculated that it may have been Plame's husband, Joe Wilson, or maybe another journalist. Now, we may never know.
Far be it from me to argue law with a lawyer, but... isn't Fitzgerald already bound by the terms of the original subpoena, and by Justice Department guidelines? Let's open up the Appeals Court opinion from last February that put Ms. Miller on the last lap of her journey to jail. At one point, the judges cite the DoJ guidelines on subpoenaing reporters:
(a) “In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation–particularly with reference to establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.” 28 C.F.R. § 50.10(f)(1).
(b) Before issuing a subpoena to a member of the news media, all reasonable efforts should be made to obtain the desired information from alternative sources. Id. at §§ 50.10(b), 50.10(f)(3);
(c) Wherever possible, subpoenas should be directed at information regarding a limited subject matter and a reasonably limited period of time. Subpoenas should avoid requiring production of a large volume of unpublished materials and provide reasonable notice of the demand for documents. Id. at § 50.10(f)(6);
Now, the court found that these guidelines did not confer a legal right on Miller (or anyone else). However, Fitzgerald has accepted very limited testimony from other journalists in this case, per the guidelines - here is an old WaPo story for background.
And here is the court's description of the subpoena in question:
In the meantime, on August 12 and August 14, grand jury subpoenas were issued to Judith Miller, seeking documents and testimony related to conversations between her and a specified government official “occurring from on or about July 6, 2003, to on or about July 13, 2003, . . . concerning Valerie Plame Wilson (whether referred to by name or by description as the wife of Ambassador Wilson) or concerning Iraqi efforts to obtain uranium.” Miller refused to comply with the subpoenas and moved to quash them.
It seems to me that Fitzgerald already had issued a very specific subpoena, and had a court order forcing Ms. Miller's compliance - Ms. Miller was ordered to describe her conversations with "one named official", reportedly Libby, within a particular week, on the subject of Plame and/or Iraq.
If I am following this, Ms. Miller can remain in compliance with this subpoena yet refuse to discuss her conversations with Libby prior to July 6, or her conversations with Karl Rove, or John Bolton, or Dick Cheney, or anyone else.
And it appears that she can decline to discuss a situation not related to Plame or Iraq - at Powerline, Miller's involvement in the Islamic charities case is noted.
Now, I am at a bit of a loss as to the actual procedures that might apply - Ms. Miller would appear before the grand jury without counsel, so presumably it is a matter of her own force of personality to dismiss certain questions (including questions from jurors) as beyond the scope of the subpoena.
And (I'm still guessing), if the prosecutor insists on an answer, the next step would presumably be either a new contempt hearing, or a trip back to jail.
Now, if I am wrong I would love to expand my education, but my take is that Ms. Miller is just talking up her new deal with Fitzgerald as one more excuse for her own baffling performance - Fitzgerald was already limited by his own subpoena and DoJ guidelines, and was never in a position to ask a lot of embarrassing questions without first obtaining a new subpoena. This is just a PR stunt by Miler's lawyer - blame Fitzgerald, blame Libby, blame Canada.
And Judy's game? My guesses are here.
UPDATE: Adam Liptak of the Times is on my side, yet not:
The second factor in Ms. Miller's decision to go before the grand jury was a change in the position of the special prosecutor, Mr. Fitzgerald, concerning the scope of the questions she would be asked, according to Mr. Abrams. Mr. Fitzgerald only recently agreed to confine his questions to Ms. Miller's conversations with Mr. Libby concerning the identification of Ms. Wilson, Mr. Abrams said.
But other reporters struck deals with Mr. Fitzgerald last year that also limited the questions they would be asked. For instance, Glenn Kessler, a reporter for The Washington Post, testified in June 2004 on ground rules essentially identical to those Ms. Miller obtained, according to an article in The Post at the time [link].
Mr. Kessler, The Post said, testified that the subject of Ms. Wilson had not come up in his conversations with Mr. Libby.
On my side - Fitzgerald has not previously been a problem on the issue of limited testimony. Not on my side - Mr. Liptak does not make the seemingly available point that Fitzgerald is limited by the scope of his subpoenas, and by DoJ guidelines.
UPDATE 2: Texas attorney Beldar takes up my side - no stoppin' me now!