Judy Miller's testimony was filled with mystery. She originally told the grand jury that she had no recollection of a June 23, 2003 meeting with Libby, and believed she chatted with his assistant. At the exhortation of Special Counsel Fitzgerald she checked for additional notebooks and (yea!) found some in a shopping bag under her desk. A notebook entry about a June 23 meeting with Libby so refreshed her memory that, although it is not memorialized in her notebook, she could even recall his demeanor as angry and upset.
Oddly, however, other entries in her notebook lack a similar power to spur Total Recall. Her notation about "Valerie Flame"? Ms. Miller has no idea how that got there, but she thinks it was not related to Libby. She believes she talked to other sources about Ms. Plame, but can't remember who. In fact, she apparently spent 85 days in jail without being able to remember who it was she might be protecting.
Well, maybe a jury will believe that. But let me sketch some reasons that Ms. Miller might be, well, conveniently absent-minded with her "I Forgot" testimony.
The Matt Cooper story is critical here. Mr. Cooper was cited for contempt in the summer of 2004 for refusing to respond to a subpoena from Special Counsel Fitzgerald ordering him to testify about conversations with I. Lewis Libby. Eventually a deal was struck, Cooper testifed, and guess what? During his Libby testimony he told Fitzgerald that he had other sources for the Plame leak, so Fitzgerald slapped him with a second subpoena.
None of this was lost on Ms. Miller, who shared counsel with Cooper as he fought his second subpoena and she fought her first.
So - one might guess that Ms. Miller concluded that forgetting about other sources was more prudent than the strategy adopted by Mr. Cooper. Here is a WaPo recap:
Initially, Fitzgerald appeared focused on the theory that Libby had leaked Plame's identity, according to lawyers involved in the case. He had interviewed three other reporters about their conversations with Libby, but all three indicated he either did not discuss Plame or did not reveal her identity.
He also sought testimony from Cooper about his July 2003 story in Time. In 2004, Cooper obtained a waiver from Libby to discuss their conversation, as had the three other reporters.
Cooper and his attorneys were surprised that Fitzgerald agreed to ask Cooper questions only about his conversations with Libby, sources familiar with the investigation said.
The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."
The prosecutor pressed Cooper to then explain how he knew about Wilson's wife in the first place, and Cooper said he would not answer the question because it did not involve Libby, the sources said.
That testimony contributed to a lengthy legal battle, as Fitzgerald sought to compel Cooper to testify before a grand jury about his conversation with the source. He also sought testimony from New York Times reporter Judith Miller.
Ms. Miller may have concluded that surprising the Special Counsel with new sources is a mistake.
And why might she choose to stick with her original story rather than allow her memory to improve with age, as happened with CIA official Robert Grenier? Let me suggest a simple, plausible, but HYPOTHETICAL reason - she is protecting Robert Armitage.
In June 2003 Ms. Miller, who had covered the State Dept. at one time, was asking questions about the Wilson trip. Robert Armitage was leaking to Bob Woodward about the Wilson trip, and had no particular reason to think that the Plame tidbit was sensitive.
So maybe he mentioned it to Ms. Miller. Implausible? They were both in the Aspen Institute, they were linked to Ahmad Chalabi and the Iraqi National Congress - where is the reasonable doubt threshold here?
But if Armitage did leak to Miller, it was surely obvious to Ms. Miller that Fitzgerald was unaware of this. And by the summer of 2006 it became public knowledge that Armitage had been a double-leaker, to Novak and Woodward.
Leaving Ms. Miller where? If she testifies that her new and improved memory is that Richard Armitage was her original source and that she may well have asked Libby about Plame in June, even Fitzgerald's patience with Armitage may become exhausted. Armitage was forthcoming about Novak, but forgot Woodward; he remembered Woodward, but forgot miller - maybe this will start to look like obstruction.
So perhaps Ms. Miller is worried that if her memory improves her testimony might be critical is sending her original source to jail. What to do, what to do?
This is speculative, and I have no idea what the defense may plan to present when they tackle Miller's testimony in their Big Finish. However, the scenario above strikes me as a plausible argument explaining why Miller might be shading her testimony, why she may have concealed that she asked Libby about Plame (that admission would make the existence of a prior source obvious), and why she is continuing to be resolute in her forgetfulness. At the level of reasonable doubt, a jury may have trouble dismissing the possibility that Ms. Miller is covering for someone else.