JustOneMinute

Defending Judy Miller

Although you haven't seen many ringing defenses of Judy Miller on the pages of this blog over the last few years, in the last couple of days I seem to be mounting a stealth campaign for the Presidency of the Judy Miller Fan Club.

Well - Mark Kleiman sums up the latest evidence suggesting that Ms. Miller perjured herself, and cooperated with Special Counsel Fitzgerald on that basis.  A key point - the WSJ tells us that:

She first appeared before the grand jury on Sept. 30 to talk about two conversations she had in July 2003. She made a second appearance Wednesday to disclose a third conversation in late June that she had previously failed to mention to the grand jury.

Ahh!  Did she fail to disclose it in response to direct questioning?  That might be perjury.

However, let's not overlook this, from the WaPo:

One source close to Miller said it appears that the notes were Fitzgerald's first indication that Miller and Libby had spoken in June.

...After Miller testified before the grand jury Sept. 30, a source close to Miller said, Fitzgerald and her attorney urged her to go back through her old notes and turn over any that involved Libby or would be relevant to the case, the source said.

So, here is an alternative to the perjury theory - Ms. Miller testified to something vague, such as "I may have met with Libby earlier and had a discussion relevant to the inquiry of this grand jury; I would need to check my notes, which have not been subpoenaed."

No perjury there.  But afterwards, Fitzgerald will surely ask for the notes.  And since his subpoena called for notes relevant to the July conversations, and since the July conversations *may* have been a follow-up to the June conversation, those June notes are, arguably, covered by the subpoena as well.  If not, then a new subpoena looms.

Her attorney will advise her that this is a fight she can not win - she will (hypothetically) be advised that she went to jail to protect the July conversations despite a judge ruling against her, and she can either give up the new notes, or go back to jail.

And since the contempt order had not yet been lifted, the return trip to jail was imminent.

The upshot - cooperation, but no perjury.

The significance of this alternative "no perjury" view - other than to promote my secret candidacy, I am not sure.  But the Anon Lib has an idea about why the June 23 talk may be important - briefly, Russert spoke to Libby in July, and may have told him about Plame (we agree!).  However, if Libby told Miller about Plame in June, then Russert can't be an alibi witness for Libby.

Slick.  However, only the invaluable Murray Waas has reported that the June talk involved Plame, and his sourcing was odd; other reports say the notes are about Wilson.  Developing... [Score one for Waas - per Ms. Miller's account, the June talk did include Wilson's wife, although perhaps not by name.]

MORE:  Since I will be incommunicado until Monday, I am gloomily resigned to indictments Friday, and the Times report on Saturday.  KIDDING!  (Maybe.)

Dems Think Big For 2006

Like Yankee fans, the Dems can't wait for 2006, when, per the Times, they have high hopes of sweeping Congressional victories.

But there is trouble in paradise!  Should the Dems atempt to unite around one message, as per the successful "Contract With America" in 1994?  What might they say about the war in Iraq, or gun control, or a gasoline tax, or the awkward social issues such as gay marriage and abortion?  (Don't ask - if Reps can nominate stealth judges, Dems can nominate stealth candidates).

Or could they pursue the simpler strategy of running on a slogan of "We Don't Know Who We Are, But We Aren't Republicans"?  Don't rule it out - a popular item in Red Sox Nation is a t-shirt saying "I root for two teams - the Red Sox, and whoever is playing the Yankees".

Wait 'til next year.

Scoring Mike Isikoff

Mike Isikoff of Newsweek is accumulating Error Points on his coverage of the Plame investigation.

His recent apparent slip - he reported that Judy Miller's notes were discovered in the Times Washington bureau:

...a notebook was discovered in the paper's Washington bureau, reflecting a late June 2003 conversation with Vice President Dick Cheney's chief of staff, Lewis (Scooter) Libby, about Wilson and his trip to Africa, says one of the lawyers.

However, both the Times and the Observer say the notes were with Judy in New York. From the Observer:

Newsweek reported this week that the new material had been found at The Times’ Washington bureau. That struck many as odd, since Ms. Miller doesn’t really work out of the Washington bureau. Washington bureau staffers said that they were unaware of any notes turning up on their turf.

 

“She’s not been here since her confinement,” a Washington bureau staffer said. “We’ve been left out of this story, and then suddenly it seemed like the bureau was involved, when in fact we weren’t.”

 

A lawyer familiar with the case said the new material came from Ms. Miller’s own notebook, turned over by her legal team.

 

Mr. Keller didn’t return calls seeking comment. A Times spokesperson didn’t return messages seeking information about Ms. Miller’s testimony today. Lawyers for Ms. Miller and Mr. Libby didn’t respond to calls seeking comment. A spokesperson for Mr. Fitzgerald wouldn’t comment on the investigation.

As an aside, let me applaud the "Roger and Me" journalistic technique of citing the ducked phone calls.

The earlier glaring error we noted was Mr. Isikoff's inability to parse a press release when he read the explantion of Tim Russert's testimony to Fitzgerald and got it upside down.

The press release, in part:

Tim Russert, moderator of NBC's Meet the Press and Washington Bureau Chief of NBC News, was interviewed on Saturday under oath by the Special Prosecutor investigating the leak of a CIA employee's identity last summer. As NBC News previously reported, Mr. Russert was not a recipient of the leak, which resulted in the public disclosure of the name and CIA employment of Valerie Plame, the wife of former Ambassador Joseph Wilson.

During the interview, Mr. Russert was asked limited questions by Special Prosecutor Patrick Fitzgerald about a telephone conversation initiated by Lewis "Scooter" Libby, Vice President Cheney's Chief of Staff, in early July of last year. Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plame's name and her role at the CIA when he read a column written by Robert Novak later that month.

Emphasis added to the eye-catching phrasing - Russert did not provide Libby with a name or say she was an operative, but did he say "I heard Wilson's wife is at the Agency"?

Don't ask Mike, who wrote this, in a piece ironically headlined "Leak Investigation: The Russert Deal—What It Reveals":

An NBC statement last year said Russert did not know of Plame, wife of ex-ambassador Joseph Wilson, or that she worked at the CIA, and "he did not provide that information to Libby."

No nuance there!  And next, the wrong inference:

This now appears significant: in pursuing Russert's testimony, Fitzgerald was testing statements by White House aides—reportedly including Libby—that they learned about Wilson's wife from reporters, not classified documents.

Well, yes, it continues to appear significant, and if someone would ask Tim Russert, maybe we could get some clarification as to whether he might be an alibi witness for Libby.

Oh wait!  Adam Liptak of the Times already did!  And here is NBC, stewards of the public trust, respecting the public's right to know:

A spokeswoman for NBC declined to elaborate on the statement yesterday.

Arianna has been towering over this.  As a study in misleading and incomplete journalism, Jay Rosen might like to twin the Tim Russert saga with his outstanding Judy Miller coverage.

MORE:  No, we aren't saying Mike Isikoff's reporting should be flushed down the toilet...

Tracking Joe Wilson

Via Glenn, we come to a terrific piece by Jay Rosen, who describes the "suspended state" of reporting at the NY Times on the Judy Miller debacle.  Lots of good facts and deeply informed speculation, but we are especially drawn to the news that, although her contempt order has been lifted, Judy is not sure whether she will be granting an interview to the Times.

Jay also links to a NY Observer piece.  This new article proves both that the Times story *can* be investigated (just not by Timesmen); and that there is a significant media backstory upon which other journalists will comment.  Let's focus on the Observer's chat with Walter Pincus of the WaPo, after some tedious background.

Mr. Pincus has been an integral part of the Plame story.  He wrote an article on June 12, 2003 that ratcheted up the swirl of interest in the then-anonymous ambassador's trip.  Putting them side by side and watching the battle of leaks, one might even argue that Mr. Pincus is giving Administration official a platform to rebut the alternative storyline circulated by this Knight-Ridder story, also of June 12 - I will excerpt the two leads after the break, but briefly, Pincus has Admin officials saying the White House was *not warned* about phony intel by the CIA, and KR has a CIA source saying the opposite. 

In July, Mr. Pincus received a leak very similar to that published by Robert Novak; later he was subpoenaed, struck a deal with Fitzgerald, testified, and told parts of his story.  All very instructive, and an overview is in the latter portion of this post.

And why do we care?  Let's see what Mr. Pincus told the Observer about the media swirl that followed Nick Kristof's May 6 column, and our point of interest should become obvious:

Washington journalists said that Mr. Kristof’s column marked Mr. Wilson’s debut as a Bush-administration-debunking background source.

“The first sign [of Wilson] was Nick Kristof’s column in May,” Washington Post reporter Walter Pincus said. “I read that, and it took me two weeks to find out who the ambassador was.”

 

Mr. Kristof was traveling—in Niger, by coincidence—and couldn’t be reached at his hotel for comment on the role his piece may have played in the Wilson affair.

 

Mr. Pincus said that following Mr. Kristof’s lead, he eventually wrote a June 12 front-page piece in The Washington Post that discussed Mr. Wilson without naming him. “It took me another week to work that piece out,” Mr. Pincus said. “I talked to every agency involved, and I never had to mention who the ambassador was. They all knew about it.”

And recently the WaPo seemed to confirm that Libby was a source for the Pincus article.

Well.  If it took Mr. Pincus two weeks to learn Joe Wilson's identity (or roughly the last week of May), how long did it take other reporters?  Joe Wilson testified to House and Senate committees in June (following the Pincus article), he identifed himself as the anonymous ambassador in an EPIC speech on June 14 - by the middle of June, Joe Wilson was an open secret as the anonymous ambassador.

Not that there is anything wrong with that!  But look who Pincus spoke with - "I talked to every agency involved, and I never had to mention who the ambassador was. They all knew about it."

"Every agency" would have to include the CIA and the State Dept., through the INR.  And if folks at the CIA and the INR were informed about the background to Wilson's trip, might someone have mentioned his wife's involvment to a reporter?  Might a CIA source have said, "Ignore those INR jokers, I'll set you straight on that trip"?

This might answer a nagging puzzle of my own - Walter Pincus explained that when he got the tip about Plame on July 12, "NigerI didn’t write about that information at that time because I did not believe it true that she had arranged his Niger trip".

What's not to believe?  A senior Admin officials tells you something interesting, why not attribute it and report it?  Unless, perhaps, Mr. Pincus had already heard multiple versions of the trip from multiple sources.  And mightn't some of those earlier versions have mentioned the wife?  Maybe the Observer can ask Mr. Pincus one more question!

The media has been quite determined to underreport their own involvement in this Plame leak, although (because?) the Media Buzz seems to be a key part of the White House defense.  Perhaps the Observer could query Tim Russert next.

Uncharacteristically Weak

Jonah Goldberg writes in defense of cronyism.  Fine, I have no problem with a President staffing his own Administration with friends he can trust - elections have consequences, the President needs to assemble a team with which he can work, and if his team is not competent, the President will pay the political price (sorry about that, New Orleans...).

But the Supreme Court is *not* part of his Administration, the President does not work with the Justices, and we can't vote "his" judges out of office or expect "his" judges to leave when the President's term ends.

No comparison, and don't defend Miers this way.

Check The Timestamps

I am fascinated by the new post on the Plame investigation by Jeralyn Merritt of TalkLeft.

However, I have a response so odd I can scarcely imagine how to present it without invoking the notion that someone at the Wall Street Journal, or somewhere, needs to see their opth eye doctor.  Well, here we go, from Jeralyn:

Wednesday :: October 12, 2005

Fitzgerald Widening His Probe

So, the latest: The Wall Street Journal reports today that Fitzgerald is widening his probe. (Hopefully the Journal will make this a free link tomorrow. If so, I'll update with it.)

There are signs that prosecutors now are looking into contacts between administration officials and journalists that took place much earlier than previously thought. Earlier conversations are potentially significant, because that suggests the special prosecutor leading the investigation is exploring whether there was an effort within the administration at an early stage to develop and disseminate confidential information to the press that could undercut former Ambassador Joseph Wilson and his wife, Central Intelligence Agency official Valerie Plame.

Lawyers familiar with the investigation believe that at least part of the outcome likely hangs on the inner workings of what has been dubbed the White House Iraq Group. Formed in August 2002, the group, which included Messrs. Rove and Libby, worked on setting strategy for selling the war in Iraq to the public in the months leading up to the March 2003 invasion. The group likely would have played a significant role in responding to Mr. Wilson's claims.

Raw Story reports similar news.

And so they do, if one follows the link.

Well, here is my theory - someone needs to check some timestamps, and since the WSJ story is behind a firewall, I can't.

Why do I say that?  Because the Washington Post had substantively the same story exactly two years ago on Oct 12, 2003.  I think the WSJ may have carried recycling a bit too far.  [No, they are serious - here is a WSJ link.  Snark continues below.]

Or put another way, is the Wall Street Journal kidding?  Based on that excerpt, they are telling us today what the WaPo told us quite a while ago, and which was supported by the "One x Two x Six" reporting from the NY Times the following February.

And by the time of the release of the SSCI Report on pre-war intelligence in July 2004, it was obvious that the Wilson story did not start on July 6, 2003.  Or, as another example, we have had plenty of reporting that Fitzgerald is interested in an INR memo from June 10, including important news from the WSJ.

Something is awry here.  Well, get out the snark-pens - either the Wall Street Journal and Raw Story have lost it, or I have.

But my (current and flexible) position - don't get too far out on that WSJ / Raw Story lead.

UPDATE:  OK, let's take the "broader investigation" idea seriously.  Here is my "Emerging Case Against Karl Rove" from July 21, which does not appear to have been overtaken by events; here is the recent notion that Fitzgerald intends to criminalize the plan to leak info to the press about the Niger trip itself, *not* just Wilson's wife.

MORE:  Using the WSJ search function, I see that their new story really is from Oct 12, 2005.  So let's focus on this, from the excerpt:

...an effort within the administration at an early stage to develop and disseminate confidential information to the press that could undercut former Ambassador Joseph Wilson and his wife, Central Intelligence Agency official Valerie Plame.

I have been advised that in his book, Joe Wilson asserts that the White House began a work-up on him in March 2003.  However, the normal timeline is that he first came to the attention of the State Dept. and the White House after the Kristof column on May 6 and the Pincus story on June 12.  And don't overlook Condi Rice's awkward "Maybe someone knew in the bowels of the agency" moment on the June 8 "Meet The Press".  (Or is it "This Week With George Stepanapoulos"?.  Let's note the Kristof correction - I have been citing a June 8 Meet The Press appearance forever.  Of course, all I have on my side is Tim Russert, who said this on Sept 28, 2003:

MR. RUSSERT: That was in January. And in June—June 8—you were on MEET THE PRESS; I asked you about that, and this was your response.
       (Videotape, June 8, 2003):

DR. RICE: The president quoted a British paper. We did not know at the time, no one knew at the time in our circles—maybe someone knew down in the bowels of the agency, but no one in our circles knew—that there were doubts and suspicions that this might be a forgery. Of course, it was information that was mistaken.
       (End videotape)).

And end that parenthetical sidebar.  Is Kristof confused, or is it Russert with the memory problem?

Sorry, I digressed.  Anyway, if the WSJ is going back in time, how much further back are they going?  Set the story free!

As a bonus, note the rebuttal to Condi in the Jun 12, 2003 Left Coaster link, and compare those leaks to the July 2004 SSCI report.  Fascinating.  It is posted after the break.  One point - it gives a sense of the information push and push back with which the Admin was dealing.  One might argue that the senior CIA leakers cited below were not fully accurate.

Do They Know Something?

The NY Times passes along a favorable straw in the wind for defenders of the Bush Administration on the Valerie Plame leak investigation:

In another development, four senior House Democrats wrote to Mr. Fitzgerald in a letter dated Oct. 12, urging him to issue a final report to Congress when he concludes his inquiry. Such a report, they said, should address "all indictments, convictions and any decisions not to prosecute."

The letter was signed by the top Democrats on their respective committees: John Conyers Jr. of Michigan, Judiciary Committee; Jane Harman of California, Intelligence Committee; and Tom Lantos of California, International Relations Committee. The letter was also signed by Rush D. Holt of New Jersey, the senior Democrat on the intelligence panel's policy subcommittee.

A report, the letter said, would assure the public that "the investigation of this serious matter has been undertaken with utmost diligence and has been free of partisan, political influence."

The representatives said Mr. Fitzgerald had the authority to issue such a report under the terms of his appointment as special counsel at the Justice Department.

I doubt these Congressfolk know much more than the rest of us, but it seems like an odd time for leading Dems to be talking about a report, rather than holding out hope for indictments.

C'mon - unlike the Yankees, no one on the Angels is talking about off-season trades.

Arianna Eruption Alert!

Bill Keller of the NY Times puts out a memo reassuring his newsies (and the rest of us) that the Times is on top of the Judy Miller debacle.

But this bit explaining that other reporters have also been a bit coy in discussing their grand jury testimony may blow the top off of Mount Arianna:

Matt Cooper of Time wrote about his conversation with his source, Karl Rove, only after his cooperation with the special counsel was completed and the contempt citation had been vacated. Other reporters who have testified -- Walter Pincus, Glenn Kessler and, of course, Robert Novak -- have not disclosed the details of their grand jury testimony to this day.

Fine reporters all, but hello, Tim Russert?  Russert's explanation of his testimony, and his "denial" that he leaked info about Ms. Plame to Libby, was an easily parsed joke (but not easy enough for Mike Isikoff!).

Now, maybe Keller is indulging a print/broadcast rivalry, but over here in reality, if Russert is a part of Libby's alibi, that is news, and the Times ought to cover it.

Adam Liptak did take a stab at this.  And frankly, with a follow-up story on Russert, what does the Times have to lose?   Pointing out other people's dirty laundry wouldn't make their own any cleaner, but they sure wouldn't stand out as much.

Or, Plan A, mutual backscratching and mutual disarmament. 

Murray Waas - Spotlight On Libby

Murray Waas has a new National Journal article which grabs the news about Judy's new notes and puts the focus where it belongs - on Lewis Libby.  [We think we catch him exaggerating the import and evidence in his lead, however when he says that the newly revealed Miller/Libby conversation touched on "the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony".] [And we are WRONG.  Mostly.  Per Ms. Miller's account, Wilson's wife was discussed on June 23, but perhaps not by name.]

His gist, which mirrors mine: Judy Miller has now told Fitzgerald about a June 23 talk between herself and Libby.  However, neither Miller's subpoena nor Fitzgerald's letter to Libby and his attorney, Tate, suggest that Fitzgerald had heard anything about this June 23 chat.

My version?  Depending on the specific testimony of Libby and the materiality of the June 23 talk, this new information ranges between modestly bad and disastrous for Libby.

At one end of the spectrum, Libby can offer the "I forgot" defense and get away with a raised eyebrow (and scowl) from Fitzgerald.  At the other end, this June 23 talk may turn in to a new perjury/obstruction charge.

And was June 23 a "conversation" or a "meeting"?  Mr. Waas uses both; the Times originally used "conversation", which Reuters also uses here.  Does it matter?  Well, one might expect a phone conversation to have been picked up by the same cracker-jack White House phone logging system that missed the Cooper-Rove call (Cooper apparently called the main switchboard and was re-directed, which probably only happens a hundred times a day).  A Miller-Libby "meeting", on the other hand, might be easier to keep out of the electronic logs, but less forgettable.

Beyond that, one might argue that Ms. Miller had a special reason to doubt the sincerity of Libby's original waiver.  Since her subpoena only cited two contacts in July, she could infer that Fitzgerald was unaware of the June 23 talk.

Finally, the puzzle of Libby's apparent coaching of Miller's testimony in defiance of Fitzgerald's instructions becomes a lot less mystifying, if we assume that Libby was aware of, and deliberately concealing, the June 23 talk.

Let's hand the microphone to Mr. Waas:

In two appearances before the federal grand jury investigating the leak of a covert CIA operative's name, Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, did not disclose a crucial conversation that he had with New York Times reporter Judith Miller in June 2003 about the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony.

"Crucial"?  I suppose so, in the sense that Mr. Fitzgerald is very interested in learning more about this conversation, as are we all.  A casual reader might infer that the actual substance of the conversation was crucial at the time to either Libby or Miller.  Or, one might infer that, in the fullness of time, this call will be considered to have been crucial to the resolution of this case.  Of course, it may be merely a passing cloud interrupting the sunshine of Libby's autumn days.  Time will tell.

But we can't let this slide - per Mr. Waas, the conversation was "about the operative, Valerie Plame", according to people familiar with the testimony that Libby never gave on this point.  Huh?  If Libby never testified about this conversation, how could people familiar with his testimony know it was about Valerie?

Let's see how the Times describes the notes.  From their first account:

The meeting is expected to focus on newly discovered notes compiled by Ms. Miller that refer to a conversation she had with Mr. Libby on June 25 [corrected to 23], 2003, according to a lawyer in the case who did not want to be named because Mr. Fitzgerald has cautioned against discussing the case. Until now, the only conversations known to have occurred between Ms. Miller and Mr. Libby were on July 8 and 12, 2003. The notes refer to Joseph C. Wilson IV, a former ambassador to Gabon.

Nothing about Valerie there.  How about the most recent Times story by David Johnston?

Ms. Miller's meeting with the prosecutor, Patrick J. Fitzgerald, focused on notes that she found in the Times newsroom in Manhattan after her appearance before the grand jury on Sept. 30. She took the notes during a conversation on June 23, 2003, with I. Lewis Libby, Vice President Dick Cheney's chief of staff.

An entry in her notes referred to Joseph C. Wilson IV, the former ambassador whose criticisms of the Bush administration's Iraq policy had begun circulating in the capital in the spring and summer of 2003. Mr. Wilson's critique was based on a trip he had taken to Africa in 2002 to examine whether Iraq had sought nuclear material from Niger.

No, no mention of Valerie there, either.  Mr. Waas has been doing a terrific job on this story, but I think the red-pen brigade has caught him making a crucial mistake, as it were.  Let's just say the notes referred to Joe Wilson, and await developments.

[And while we wait, let's pile on:  Mike Isikoff of Newsweek describes the notes:

...a notebook was discovered in the paper's Washington bureau, reflecting a late June 2003 conversation with Vice President Dick Cheney's chief of staff, Lewis (Scooter) Libby, about Wilson and his trip to Africa, says one of the lawyers [close to the case].

And here is Carol Leonnig of the WaPo:

Special prosecutor Patrick J. Fitzgerald, who has indicated he is nearing a decision about whether to charge anyone in the case, questioned Miller about notes she said she discovered last week involving a June 23, 2003, conversation with Cheney's top aide, I. Lewis "Scooter" Libby, according to a source familiar with Miller's account.

According to the source, the notes reveal that the two discussed Bush administration critic and former ambassador Joseph C. Wilson IV about three weeks before the name of Wilson's wife, covert CIA operative Valerie Plame, appeared in a syndicated column written by Robert D. Novak.

Still no sign of Valerie.]

Continuing from his story:

Miller had spent 85 days in jail for contempt of court for refusing to testify before the grand jury about her conversations with Libby and other Bush administration officials regarding Plame.

Emphasis added - that is not based on her subpoena, which covered only Libby.

FBI agents interviewed Libby in October and November 2003, and the following year he voluntarily appeared twice before the grand jury, according to government records and interviews. But he never disclosed anything to the FBI, prosecutors, or the grand jury about his June 23 conversation with Miller, sources say.

Since Fitzgerald only cited two July contacts between Libby and Miller in his letter to Libby, we believe the sources.

Mr. Waas then goes into detail about Libby's waiver to Miller.  When Ms. Miller first agreed to end her stint in jail and testify, her deal baffled observers.  However, Libby's motivation to promote confusion about the sincerity of his waiver and let her sit in jail is a lot more obvious *IF* he was aware of a material June 23 talk that he was concealing from the prosecutor.  If.  Hard to type with my fingers crossed, but "IF".

Ms. Miller will be off to the grand jury, so her First Amendment concerns seem to have been laid to rest.  Since Fitzgerald is meant to wrap this up by the end of October, we should learn soon enough whether this latest news is bad for Libby, or really bad.

UPDATE:  Interesting background from the WaPo:

One source close to Miller said it appears that the notes were Fitzgerald's first indication that Miller and Libby had spoken in June.

Last year, Fitzgerald subpoenaed Miller's notes for discussions she had with Libby from July 6 to July 13 but included no mention of June, the source said.

Yes, and there is Fitzgerald's letter to Libby and Tate, which only references two July contacts.  But check this on how Steel Willed Judy's notes were discovered:

After Miller testified before the grand jury Sept. 30, a source close to Miller said, Fitzgerald and her attorney urged her to go back through her old notes and turn over any that involved Libby or would be relevant to the case, the source said.

Fitzgerald asked!  Nicely, one presumes, and why didn't he think of that before?  All these silly subpoenas, when all he had to do was say "Please".

I don't buy it - if her attorney "urged" her, it was because she is under some other legal cloud, or because he thinks she would lose another court fight.  Of course, the obvious explanation for her cooperation would be that she testified to something suggesting that there were other relevant conversations, but why didn't Ms. First Amendment drag Fitzgerald back to court and force him to beat it out of her?

[Uhh - because she would have to fight from jail and would lose?  Just guessing.]

Come Again?

While admiring Jay Rosen's vivisection of the NY Times, which is struggling to address (contain?) the Judy Miller debacle, we recalled happier days at the Times. 

This excerpt is from Joe Wilson's "The Politics of Truth", p. 355.  Joe Wilson himself takes us back to 2003:

En route, down a long windowless corridor [inside the Times building] with offices on either side, doors sporting the names of Times writers, we ran into veteran Timesman Robert Semple. David [Shipley] explained that I was "the one who wrote the article on what he didn't find in Africa," and Semple, turning to me, said, "So, you're the one who turned our paper around." The Times had been mired in the scandal surrounding Jayson Blair, the fraudulent journalist whose reporting had been questioned by a number of colleagues.

Welcome aboard, Captain Hazelwood!  We aren't even going to mention the now-buried Nick Kristof questions, with his unsatisfying response.

MORE:  I would like to note my *caveatted* theory about the recent "discovery" of Miller's notes - maybe, MAYBE, they were in the physical possession of the Times Company, despite their earlier explanations to the judge and prosecutor that the Times had no material with which to respond to a subpoena (both Matt Cooper and TIME were appellants, as was Judy Miller, but the NY Times Company was not.)

Concealing evidence would be naughty, wouldn't it?  Since I have no reason to think that the Times lawyers are anything but top professionals, I have no basis for alleging that the Times legal side was aware of any notebooks that might have been responsive to some prosecutorial inquiries.  And why would I suggest that the Times was non-responsive for (possibly) sitting on a June notebook, when the Miller subpoena was for conversations, notes, and meetings in July?

But the timing of this discovery is striking, as is the absence of Times reporting on what might be viewed as a significant story.  So maybe the current reporting rule inside the Times newsrooms is "Ask me no questions, I'll tell you no lies".

I know others have researched the legal status of Judy Miller's notes - I would welcome some shamelessly self-promoting links on that topic just about now.

UPDATE:  "emptywheel" touches on the legal issues while speculating on an insurrection at the Times:

Here's Daniel Engber's quick description of the law on reporter's notes:

It's a murky issue, and one that hasn't been fully resolved in court. According to the work-for-hire doctrine prescribed by the federal copyright statute, the employer who paid for the production of a work is considered its owner. In general, any notes, tools, or other materials that were created in the process of producing that work also belong to the employer.

He goes on to say that NYT claims its journalists own their own notes, even while he shows their application of this standard has been inconsistent. At the very least, though, we would expect consistency between news outlets in this case. If Time Magazine can be held in contempt, then presumably the NYT would be held in contempt if they refused to turn over the same kind of materials.

To some degree, this is moot. We know Judy has notes of her conversation(s) with Scooter Libby. But we have no reason to believe she sent emails about her conversation to her NYT editor. And it was only Cooper's emails, after all, that Time released.

Miers - Slow Fade [But No Lame Ducks Quacking]

Glenn has two posts on the prospects for Supreme Court nominee Harriet Miers, and wonders about a "Miers meltdown". 

Could be - in the betting world, Miers is fading.  At TradeSports, the contract based on her confirmation opened with a 92% probability that she would be confirmed.  However, the trend has been down, and currently, bettors give her nomination a 65% chance of succeeding.

And wait until they get a load of Patterico, who has decided to oppose this nomination.

My questions: what price will a Republican Senator pay for opposing Miers?  And is there any face-saving way for her to withdraw - does she have a dog that might take ill, or maybe a sick goldfish requiring her attention?

For myself, my support foundered on the cronyism question.  If Hillary nominated her best friend from college, I would not care what her qualifications were, and I feel the same way about Miers.  I don't want a merely a reliable vote - I want a solid conservative judge who can articulate the issues and do us proud.

UPDATE:  From a commenter:

This President is going to oversee the spending of over 200 billion dollars [in Katrina relief, presumably]. He gets to decide what's pork and what's not. No lame duck here.

Well, my support is not for sale!  But talk to me about a lease deal...

Isikoff Arrives!

Mike Isikoff of Newsweek finally brings a bit of coverage to the Karl Rove e-mail to Steven Hadley, which spawned the Matt Cooper saga.

He is essentially telling us now what I told folks last August:

Fitzgerald should have had (if not looked at) the Rove-Hadley e-mail by March. Which means Rove's lawyers should have seen it too (and blanched!).

To recap and supplement a bit, with thanks to Reddhedd and Polly's comments at firedoglake:

White House records were first subpoenaed in Sept. 2003.  The Rove-Hadley e-mail should have been caught in this net, but wasn't.  Why not?  Rove's attorney, Luskin Some attorney explains that the wrong search words were used.  Hmm - per the Wash Times excerpts, the word "Niger" appeared in the e-mail.  Not enough of a clue?  Evidently not.  That said, if "Wilson" appeared in the e-mail, the Wash Times did not report it.

After Fitzgerald took over the case, he issued a new batch of subpoenas, including, per this Newsday excerpt, "records created in July by the White House Iraq Group", of which Rove and Hadley were members.  Evidently, they found the e-mail this time.  The NY Times has more.

The obvious guess - In his capacity as high priced defense talent, Luskin reviewed on behalf of his client the material picked up in response to the new subpoena, blanched, and alerted both Rove and Fitzgerald.

Isikoff discusses the other discrepancies between the Rove and Cooper versions of their phone call.  We went through this a few days ago, but the gist is, there is good evidence that Rove and Cooper did, in fact, discuss welfare reform, regardless of Cooper's failure to recall that.

On the Judy Miller drama, Isikoff assumes, rather than reports, with this:

...the e-mail isn't the only belatedly discovered document in the case. Fitzgerald has also summoned New York Times reporter Judith Miller back for questioning this week: a notebook was discovered in the paper's Washington bureau, reflecting a late June 2003 conversation with Vice President Dick Cheney's chief of staff, Lewis (Scooter) Libby, about Wilson and his trip to Africa, says one of the lawyers.

I would substitute "recently" for "belatedly" (thereby losing the parallel structure) - as Jeralyn Merritt of TalkLeft explains, these notes were not part of Fitzgerald's subpoena.  Consequently, since she has never previously been ordered to produce them, it's hard to see how they are belated.

Now, folks who have been studying the Miller saga deeply will ponder this - both Matt Cooper and TIME, Inc. were subpoenaed separately for their Rove testimony and notes.  (Eventually, TIME gave up the notes, so that for Cooper, resistance was futile).

However, IIRC, the NY Times Co. was *not* subject to a subpoena, having convinced the prosecutor that all of the relevant material was in Ms. Miller's possession.

So - where was this recently discovered notebook?  If, as Isikoff reports, it was "the paper's Washington bureau", might one argue that the Times had it in their possession, and misled the prosecutor?  And if the Times (rather than Ms. Miller herself) discovered this a while back, shouldn't they have alerted the prosecutor immediately?  OK, that is a rhetorical question - of course they should have notified Fitzgerald, unless they convinced themselves that it was in Ms. Miller's possession even though it was physically in their office. 

And there is a middle "Don't ask, don't tell" scenario, in which various Washington Timesman stare at Judy's drawers (her desk drawers, for my Brit readers), and say, "You open it".  "No, you open it".  "I'm not gonna open it."  "Well, I'm not gonna open it".  Yeah, tell that to Fitzgerald.

That would be more news for the "Some of the News We Want To Print" crowd to cover - did the NY Times Company mislead the prosecutor and conceal key evidence?

But then again, Isikoff read the Russert story almost exactly backwards, turning what looks like a carefully, craftily worded denial into an unambiguous "It wasn't me", so he is not my main man on this.

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