JustOneMinute

Judy Miller Protecting Lewis Libby (And Anyone Else?)

Times reporter Judith Miller has elected to go to jail rather than cooperate with Special Counsel Fitzgerald in his investigation into the Plame leak.  The NY Times account poses a few questions to which we have answers.

Mr. Fitzgerald also said in the court papers that the source for both Mr. Cooper and Ms. Miller had waived confidentiality, giving the reporters permission to reveal where they got their information. The prosecutor did not identify that person, nor say whether the source for each reporter was the same person.

Mr. Cooper told the judge today while he had been told his source had signed a general waiver of confidentiality, he would only act with a specific waiver from his source, which he said he got today.

Well.  If Mr. Fitzgerald believes he has received a waiver from Ms. Miller's source, presumably he also believes he knows who Ms. Miller's source might be.  And maybe we do too - if we can trust our news resources, Mr. Cooper was protecting some other source, and Ms. Miller is protecting Lewis Libby, Dick Cheney's Chief of Staff.

Last Nov 25, the WaPo told us this:

Several reporters have given limited depositions about their conversations with [Vice President Cheney's Chief of Staff Lewis I.] Libby in the days before the Novak column was published. All did so at the urging of Libby, who has told the prosecutor he heard about Wilson's wife's employment from someone in the media, according to lawyers involved in the case. Two news organizations, Time magazine and the New York Times, have gone to the U.S. Court of Appeals to fight subpoenas for reporters' testimony.

The WaPo also told us this in Oct. 2004:

Fitzgerald has questioned four reporters about their conversations with I. Lewis Libby, Vice President Cheney's chief of staff, and is seeking to question a fifth, New York Times reporter Judith Miller. Fitzgerald has been told by reporters that either the subject of Wilson's wife did not come up in their phone conversations with Libby or it was introduced by the reporters. The reporters are from Time magazine, The Washington Post and NBC.

During a July 12, 2003, conversation, according to a source involved in the investigation, Time reporter Matthew Cooper told Libby that he had been informed by other reporters that Wilson's wife was a CIA employee. Libby, the source said, replied that he had heard the same thing, also from the press corps.

Cooper's lawyer, Floyd Abrams, declined to comment on his client's conversation with Libby. On Wednesday, Cooper was found in contempt of court for refusing to testify about conversations he had with people other than Libby about Wilson's wife.

So as of October, Matt Cooper had testified about Libby, but was protecting some other source; Ms. Miller, as of November, was still holding out on Libby.

Now, let's thicken the plot - might Ms. Miller have some other source than Libby, a source as yet unknown to Fitzgerald?  Perhaps, I say *PERHAPS*, she is unwilling to negotiate some form of limited testimony on the Libby question because she does not want to become exposed to wider ranging questions about who else she may have spoken with.

Perhaps a legal eagle familiar with how these negotiations are handled can shed some light on this - Cooper, for example, obviously limited his cooperation to one source last fall.

And yes, the notion that both Cooper and Libby had heard about Ms. Plame from other reporters does muddy the waters.  Which reporters, and what was their source?  Or was it Georgetown cocktail party chit-chat, as Clifford May suggested?

Developing...

MORE:  The Walter Pincus story is interesting - here, he tells us that Lewis Libby was not his source, but that his source had identified himself to Fitzgerald, freeing Pincus to testify.

And here is what Pincus wrote on Oct. 12, 2003 that earned him an opportunity to spend some time with Mr. Fitzgerald:

On July 12, two days before Novak's column, a Post reporter was told by an administration official that the White House had not paid attention to the former ambassador's CIA-sponsored trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction. Plame's name was never mentioned and the purpose of the disclosure did not appear to be to generate an article, but rather to undermine Wilson's report.

In this telling, Ms. Plame was not named, nor was she covert.  And, per Pincus, the source of that story has identified himself to Fitzgerald.

Let's say this - if Novak had been given exactly those details, he could have added Ms. Plame's name by finding Joe Wilson's on-line bio (now gone, but not forgotten); his discussions with the CIA spokesperson who failed to dissuade him from publishing may have led to the upgrade from "analyst" to "operative". [Mr. Pincus offers more details here].

Just sayin'.  Obviously, other explanations are also in play.

UPDATE:  Evidently I have more confidence in the WaPo's reporting than they do.  From their account of today's activities:

It was not immediately clear whether the same person was a source for both Miller and Cooper. Although Fitzgerald has said the source has waived confidentiality, the prosecutor has not identified the person.

William Branigin has the byline - c'mon, check the archives!

UPDATE 2:  A headscratcher in the WaPo editorial from Thursday:

Yesterday, Time magazine reporter Matthew Cooper, who has already testified about one source, agreed to testify about another after this second source personally released him from his pledge.

Ms. Miller's attorney said she did not have such a release from her source and did not consider the general waivers obtained by Mr. Fitzgerald from several public officials to be sufficient.

Well, Lewis Libby reaced agreements with the other four reporters, according to the WaPo.  So, why can't he get ahold of Ms. Miller now?  Or was the WaPo wrong about Ms. Miller, back when they seemed so sure?  That might explain their silence now.

Activist Judges

Paul Gewirtz and Chad Golder have an op-ed piece in the Times defining activist judges:

...we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.

...

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions.

The results may surprise you, unless you happen to know that Prof. Gewiritz is a Lieberman Democrat, and you keep in mind that the Times volunteered to run this.

In any case, I question both their definition and their methodology.

First, an activist judge may be viewed as one who considers the Constitution to be an impediment to the sensible, well-intentioned proliferation of laws and regulations by both the courts and the Congress.  The Gewirtz standard seems to set the court against the Congress, but in a different definition, Congress will fullfill its institutional imperative to expand its power, as will an activist court - the expansion of Federal power does not need to be a zero-sum game between the Court and the Congress.

In which case, a "conservative" judge would be one who defends the Constitution against both the Congress and activist judges.

As to methodology, Clinton's veto pen shielded the liberal justices for eight years [OK, do I hear six?] - for example, the Federal ban on partial birth abortions vetoed by Clinton and signed by Bush has not yet come to the Supreme Court.  (And let's remember the Dems controlled the Senate for much of 2001/'02.)

UPDATE:  Orin Kerr and QandO dispute Gewirtz as well; he finds support at Memeorandum.

Call Missing Persons

I am reading, in my Dead Tree Times, a cogent op-ed piece by Phillip Carter, blogger and recently called up Army reserve officer.

However, I can't find the piece on the Times website [Now I can!].  For The Searchers everywhere, here is the lead:

The Quiet Man

America is facing a military manpower meltdown.  Overwhelmed by the demands in Iraq and Afghanistan, the Army has all but used up its emergency recruiting measures: higher enlistment bonuses, more expensive marketing campaigns, even home loans for some recruits....

His irrefutable point - George Bush should follow exert himself from the bully pulpit and urge people to enlist.  Since the column mentions Linclon and Churchill, and alludes to John Wayne, it makes my day.

If the Times ever gets this up at their site, feel free to leave a link in the comments.

UPDATE:  The Times has it, and blames a production snafu.

You Won't Even Miss The Funnies

The NY Times lacks a comics section, but makes up for it with stories like this.  Over the weekend the WaPo and the LA Times led with the news that Karl Rove may be the secret source that leaked Valerie Plame's identity; the Times front-pages the news that Ms. Plame went back to work on June 1, and is hoping to get her career back on track.

At this point, the Times has become so separated from reality on this story, I don't know if they can ever find their way home.  My quickie diagnosis - the Times is deeply involved in the Wilson saga, and yet is trying to report on it as if they were detached observers.  Some examples:

On Wednesday, a federal judge is expected to decide whether two reporters, Judith Miller of The Times and Matt Cooper of Time magazine, will go to jail for refusing to cooperate with a grand jury investigation into the leak.  That the leaker appears willing to permit journalists to be incarcerated rather than taking public responsibility for his actions simply shows the leaker's "cravenness and cowardice," Mr. Wilson said.

That the Times fails to mention their official editorial position, which is that "the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law" is also a bit craven.

A Jaguar-driving, cigar-smoking, silver-haired former ambassador, Mr. Wilson, 55, interpreted the leak of his wife's C.I.A. connection as an act of vengeance from White House officials for his public accusations of deceit in building a case for the Iraq war. Days before the leak, he had gone public in a New York Times Op-Ed article and television appearances to charge that the administration had covered up his own debunking of reports that Iraq had bought uranium in Africa.

Well.  That gives short shrift to the role played by Times columnist Nick Kristof, who based a couple of columns on phony leaks from Joe Wilson, and helped make him an anonymous star.  Matthew Continetti of the Weekly Standard followed up, but as best I know, neither Kristof nor the Times public editor have gone back and assessed their role in this.

He has acknowledged he may have misspoken about a few details, like the date he became aware of forged documents purporting to show a uranium sale.

Well, I missed that acknowledgement, although Wilson has said many things, so I don't dispute that he said this.  However, when he was defending himself on this point to Paula Zahn a year ago, his position was that "If they're referring to leaks or sources, unidentified government sources in articles that appeared before my article in "The New York Times" appeared, those are either misquotes or misattributions if they're attributed to me."  Nothing about "I misspoke".

Well, Joe Wilson is not the story.  Even, apparently, in a story about Joe and Valerie Wilson.
 

Karl Rove And The Plame Leak

Lawrence O'Donnell struck sparks by posting at Arianna that "Karl Rove was Matt Cooper's source" for the Valerie Plame leak.

Mike Isikoff of Newsweek modifies this a bit, delivering quotes from a chat with Rove's attorney Robert Luskin and telling us that "one of Cooper's sources was White House deputy chief of staff Karl Rove".  (Emphasis added). 

The Washington Post has the strongest denial:

Rove's lawyer said Rove never identified Plame to Cooper in those conversations. More significantly, Robert Luskin said, Fitzgerald assured him in October and again last week that Rove is not a target of his investigation.

Some thoughts - Karl Rove was under oath when delivering his grand jury testimony, and although unsworn, false statements to a federal investigator can lead to a prosecution.   His attorney, Robert Luskin, is not similarly constrained when making statements to the press.  Hence, his statements may be false (unlikely, since presumably Mr. Luskin has a professional reputation to consider), or artfully constructed to be misleading (Do tell!). 

Furthermore, Special Counsel Fitzgerald would not normally hold a press conference to rebut any misleading statements made by Robert Luskin. My strong impression is that unlike Ken Starr, who was authorized under his empowering statute to deliver a final report into his investigation, Special Counsel Fitzgerald will either present his evidence in indictments and at trial, or go quietly away.  Grand jury testimony is meant to be secret, after all, and although ironists would delight if Fitzgerald began delivering leaks to the press about the progress of his investigation into press leaks, he has run a tight ship so far.

So, let's pull out the direct quotes from Robert Luskin, and see whether there is any obvious wiggle room in his denials.  From Newsweek:

Luskin told NEWSWEEK that Rove "never knowingly disclosed classified information" and that "he did not tell any reporter that Valerie Plame worked for the CIA." Luskin declined, however, to discuss any other details. He did say that Rove himself had testified before the grand jury "two or three times" and signed a waiver authorizing reporters to testify about their conversations with him. "He has answered every question that has been put to him about his conversations with Cooper and anybody else," Luskin said.

Well, "knowingly disclosed" may be important in establishing criminal intent, but it sidesteps the question of whether Rove inadvertently mentioned a connection between Plame and Wilson.

"[H]e did not tell any reporter that Valerie Plame worked for the CIA", may be a perfect non-denial denial - did Rove say, for example, that Joe Wilson's wife worked for the CIA, but omit her name (which was available on the internet as part of Ambassador Wilson's on-line bio, now long gone)?

The Washington Post gives us more to work with:

More significantly, Robert Luskin said, Fitzgerald assured him in October and again last week that Rove is not a target of his investigation.

"Karl did nothing wrong. Karl didn't disclose Valerie Plame's identity to Mr. Cooper or anybody else," Luskin said. Luskin said the question remains unanswered: "Who outed this woman? . . . It wasn't Karl."

"Not a target" is not a direct quote.  However, it is possible that Robert Luskin is relying on a term of art, and simply telling us that Karl Rove has not received a target letter.  Maybe Fitzgerald's position is, Rove is not a target, but if it turns out he perjured himself or lied to investigators, that could change.

"Did nothing wrong" may refer to the notion that a prosecution under the Intelligence Identities Protection Act is probably impossible.  Or it may reflect the ethical judgment of someone sympathetic to the White House (see Howard Fineman's piece on the background tussle between the CIA and the White House.)

"Who outed this woman... It wasn't Karl" will be left as a challenge to the reader, but I will suggest this - Robert Novak claimed to have two sources; if Matt Cooper had a similar experience, maybe Rove merely confirmed a Plame/Wilson connection that Cooper had gleaned elsewhere.  In which case, Rove didn't exactly "out" her, did he?  Hmm... Let's note this from the WaPo:

Cooper has said that more than one confidential source is identified in his e-mails and the notes of interviews he conducted in July 2003 after Wilson's opinion piece appeared in the New York Times.

More from Robert Luskin:

Rove answered questions under oath for about two hours before a grand jury on Oct. 15 as part of the special prosecutor's investigation. According to Luskin, the prosecutor said he believes Rove was candid and forthcoming about his contact with reporters.

"I've been assured by the prosecutor they have no reason to doubt the honesty of anything he's said," Luskin said.

That's good news for Karl's fans, although it is possible that new evidence in Cooper's notes may change the prosecutors' minds.

Let's reprise one theory of the information flow that led to the leak, with thanks to Cecil Turner, commenting at the Beldar Blog.  Briefly, someone at the INR (the State Dept intelligence arm) attended the famous meeting where Joe Wilson was introduced by his wife; much later, when the White House was vexed by Wilson's leaks and his NY Times piece, Colin Powell was apprised of the Wilson/Plame connection while traveling with Bush in Africa:

Sources close to the case say prosecutors were interested in discussions Powell had while with President George W. Bush on a trip to Africa in July 2003, just before Plame's identity was leaked to columnist Robert Novak. A senior State Department official confirmed that, while on the trip, Powell had a department intelligence report on whether Iraq had sought uranium from Niger—a claim Plame's husband, Joseph Wilson, discounted after a trip to Niger on behalf of the CIA. The report stated that Wilson's wife had attended a meeting at the CIA where the decision was made to send Wilson to Niger, but it did not mention her last name or undercover status.

Well - if Powell knew, who else in the White House did?  And what did they know?  Not Ms. Plame's name, and not her undercover status, if this memo was the basis of their information.  The meeting is described in the SSCI report.  And let's note that Novak's original column was hazy on just what information came from which sources:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report.  The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him.

Let's try for a Big Finish  - playing "Parse the denial" is lots of fun, and great practice for a Hillary '08 campaign, but I will be more inclined to believe what Fitzgerald does than anything these guys say.  I'm not seeing anything here that makes me worried. 

Two points to ponder: 

(a)  This is reporting from the Hall of Mirrors - the WaPo has received lots of leaks on this, and their Walter Pincus testified to Fitzgerald's grand jury.  One would hope that if the WaPo runs a strong Rove denial without waving a lot of red flags, it is because the denial squares with what they already know (or think they know).

(b) Did the various editors at the Times, the WaPo, and Time magazine really sit on evidence that would have incriminated Karl Rove all through last fall's campaign?  What happened to the public's right to know?  And if they were worried about being subpoenaed by Fitzgerald, Sydney Blumenthal explained the solution years ago - leak the "Rove is a criminal" scoop  to some anti-Bush British papers (gee, could they find one?), and pick up the story from there.

Either they are awfully dumb (possible!), or the story is not there.  Or both.

MORE:  Michelle Malkin rounds up some links; Josh Marshall also weighs in, and we will highlight this:

What's implicit in Isikoff's report, however, and in the Tribune too, is that the special prosecutor, Patrick Fitzgerald is after Rove for some felony arising out of the case (perjury after the fact? conspiracy?) but not the immediate and original act of leaking the name.

We have seen press speculation that Fitzgerald's investigation has degenerated to a Martha Stewart style attempt to find secondary crimes, such as lying to investigators or perjury to the grand jury.  Has this become the new CW on the left?  Keep hope alive!

MORE:  Josh Marshall does hold up a flickering candle:

...Fitzgerald shouldn't be pressing matter of jailing journalists unless he thinks he's on his way to prosecuting a serious crime.

So just a question: Would Fitzgerald have pushed to get Cooper and Miller in the slammer if some other party in the White House weren't in a lot of trouble?

No doubt about it - Fitzgerald's behavior is fully consistent with the notion that he is on the trail of a big one.  That said, just what did people expect Fitzgerald to have done if his investigation, sans the evidence of Cooper and Miller, had reached a dead end with no prospects of indictments?   Perhaps Josh Marshall could volunteer to handle Fitzgerald's press relations on the day he announces something to the effect of "although it is obvious that I have left some stones unturned, my clearly incomplete investigation is at an end, and no indictments will be handed down"; that's not a job I would want.

Put another way, Fitzgerald's behavior is also consistent with the notion that he has nothing but can't quit until every lead is exhausted.

Sandra Day O'Connor To Step Down

OK - who will President Bush nominate as her replacement, and who would you like to see him nominate?

The first psychic pre-cog to correctly predict the eventual nominee will win... well, as a psychic pre-cog, you already know the prize.