Miller is being asked by the defense about other sources for Wilson and Plame news and claims she does not remember them. The defense wants to argue that:
1. IF she honestly to god has forgotten, then how credible is her memory of the Libby conversations?
2. IF she actually remembers but has claimed bad memory because she doesn't want to reveal sources, then Libby is losing a chance to confront a key witness - her sources might include Powell, Armitage, Wilson, Rove... who knows, except maybe Judy?
3. IF her memory improves with the use of her notebooks, then let her go home, look in her shopping bags, find the relevant notebooks, and answer the questions.
SO - Judge Walton wants to avoid Judy staging a First Amendment meltdown; he also wants to avoid having Libby's people win an easy appeal.
And his choices seem to be:
1. Disallow the question - Libby will squawk;
2. Allow the question, threaten her with contempt - Fitzgerald will squawk, because he sees this freight train coming - she will insist her memory has failed, and advise him to put an egg in his shoe and beat it. Or, she will refuse to answer and go to jail again, probably causing a mistrial.
3. Some middle ground - Judge Walton will try to rule that Miller can assure the court she remembers sources (thereby assuring us of her memory), but won't have to name them. This has the benefit of assuring Walton a permanent gig on Comedy Central - c'mon, how is the Libby team supposed to refute that sort of evidence? Maybe the Amazing Karnak can come on for the defense.
And last question - what is surprising about this? It was obvious that the defense would ask about Miler's other sources, and predictable that she would refuse to offer names. So why did Fitzgerald and Walton let it get this far, and why is Walton going home tonight to do the research that could have been done months ago?
I smell mistrial. I also think The Decider (aka, the 13th Juror, aka, George Bush) has seen enough, and Libby's pardon is now gift-wrapped.
UPDATE - WITH TIMES ON MY SIDE: In an unlikely alliance with Neil Lewis (buttressed by Scott Shane), I find the Times is with me regarding a mistrial:
The day ended with an extraordinary argument by lawyers for both sides, as well as a lawyer for Ms. Miller, over whether Mr. Jeffress could ask her if she had other sources she spoke to about Ms. Wilson. The question, which was left unresolved by Judge Reggie M. Walton until Wednesday, threatened to derail the trial over the very constitutional issue that saw Ms. Miller go to jail in 2005.
Judge Walton seemed disinclined to allow questions about Ms. Miller’s other sources. “I appreciate that there is an interest the media has in not having questions asked that aren’t germane to this case,” he said. But if he does allow them, and she refuses to answer, she could be held in contempt once again and a mistrial could result.
I imagine we will get a ruling from Walton this morning. My Bold Prediction - he will rule the question irrelevant and opt for the slow death of reversible error (if we ever get to the point where the defense is appealing the verdict) rather than the quick death of being forced to jail a star prosecution witness for contempt.
However, the defense should still be able to score points with such a ruling. Their presentation to the jury can be that Ms. Miller originally had no memory of the June 23 conversation; after being asked by Fitzgerald to check her notes for Libby-related conversations, she remembered his demeanor and that he was the first to mention Wilson's wife to her. Well then, the defense can ask, what else might Judy Miller remember if someone asked her to check her notebooks for all Plame-related conversations? The prosecutor has not asked her to do so, and the judge won't order her to do so, which means that "the truth" will not be uncovered and an innocent man may go to jail as a result. But for all we know, prior to June 23 Ms. Miller may have had a chat with Marc Grossman of the State Dept. in which he was the first to mention Wilson's wife to her - we don't know, and no one is making the effort to find out. This also ties in nicely to the defense theme of a White House conspiracy to get Libby - who is Judy protecting (cue "Twilight Zone" music...).
As to substance - of course Miller's memory is relevant. And how can it be that she has checked her notes and is sure that Libby made the first mention of Wilson's wife, yet she can't remember the names of the other parties to the conversations she (presumably) checked? Either she checked all of her notes, or she didn't. And since Fitzgerald wasn't asking about all of her notes, it is easy to believe that she hasn't checked them all; in fact, I presume her attorney would have advised her to not check them, then plead ignorance if the topic of other sources was broached, just as is happening here.