The Scope Of The Miller Subpoena

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.

At Powerline (via Glenn), this provision attracts a great deal of attention as being the key to Judy's deal:

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 Subpoenas should avoid requiring production of a large volume of unpublished materials and provide reasonable notice of the demand for documents.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:  I get a NO Sale from TalkLeft, to which I respond in the UPDATE here.  Maybe I am just euphoric from the Yankees' victory, but it will take more than a lawyer to change my mind!

UPDATE 2:  Texas attorney Beldar takes up my side - no stoppin' me now!

Comments

[Jeff]

Here's one item of news in tomorrow's NYT, though it also strikes me as total bs:

A lawyer who knows Mr. Libby's account of said the administration efforts to limit the damage from Mr. Wilson's criticism extended as high as Mr. Cheney. This lawyer and others who spoke about the case asked that they not be identified because of grand jury secrecy rules.

On July 12, 2003, four days after his initial conversation with Ms. Miller, Mr. Libby consulted with Mr. Cheney about how to handle inquiries from journalists about the vice president's role in sending Mr. Wilson to Africa in early 2002 to investigate reports that Iraq was trying acquire nuclear material there for its weapons program, the person said.

In that account, Mr. Cheney told Mr. Libby to direct reporters to a statement released the previous day by George J. Tenet, director of central intelligence. Mr. Tenet's statement said Mr. Wilson had been sent on the mission by C.I.A. counter-proliferation officers "on their own initiative."

I don't doubt that such a consultation took place. But I seriously doubt it was the only or first such consultation. After all, in our timeline, July 12 is really quite late in the game. Of course, the Times piece nowhere specifies that July 12 was the first time Libby consulted with Cheney. That's just the impression it leaves. And I suspect precisely the impression Libby wanted to leave, while still acknowledging the general truth that he consulted with Cheney on the matter.

[TM]

It must be hard to be a reporter listening to this and not laugh out loud. Gee, Cheney boldly advised his staff to urge reporters to read Tenet's statement! Leadership that's working!

Does the story mention that other accounts say that Libby and Rove helped Tenet draft the statement? Tenet denied that (IIRC), but still...

[jerry]

Bennet was much more general on Chris Matthews today, he said Miller had (roughly) "agreed to be limited to discussing Plame."

It seemed to me at the time that this was something broader than discussing Libby specifically.

[Jim E.]

NY Times has a pdf of Libby's letter to Miller. (I assume we don't have to worry about kerning.) In it, Libby urges Miller to testify since he says it will only help him. Color me convinced that Libby wasn't coerced -- he's practically begging her to testify about their conversations.

The Wash Post article also says Libby was Miller's only Plame-related source. Maybe this (going to jail) was Miller's PR stunt? Libby's letter does hint at bafflement over Miller's reluctance to testify.

[TM]

It was either Froomkin or Kurtz at the WaPo who had a reaction to this debacle from some live NY Times staffers and reporters - they were genuinely shocked at the idea that this was a publicity stunt, but are as baffled as the rest of us as to what other explanation makes sense.

It was actually quite sad, all Times-bashing aside - she really has yanked that organization around.

[Jeff]

I checked out the pdf's of the letters, which also includes Abrams' significant one justifying himself. Libby is a good writer. Which makes the following baffling sentence (the one that starts, "Because . . .") all the more baffling (transcribing):

As noted above, my lawyer confirmed my waiver to other reporters in just the way he did with your lawyer. Why? Because, as I am sure will not be news to you, the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call.

What is up with that last clause? I'll guess that that should be "know." It's good to know that Libby understands that Plame can be identified otherwise than by her name. First question: is this identical to, or different from, saying "I did not discuss Ms. Plame's name or identity with them"? Second question: What is that last clause trying to say, exactly? That none of the other reporters knew about Plame before July 12, hence did not learn about her from him? Third question: what about Tim Russert? Fourth: How does this all serve Libby's interests? I take it the answer to that last one is that it shows that Libby was not spreading the word about Plame being undercover CIA. But at least one theory out there is that Fitzgerald is interested in all these reporters in order to preclude the possibility that Rove, Libby et al learned of Plame from them. On the other hand, Murray Waas is suggesting that Fitzgerald is very focused on the truthfulness of LIbby's testimony, so that fits.

Another thing about the WaPo article. It says

A sourceclose to Miller said yesterday that her testimony does not implicate Libby as intentionally and knowingly identifying Plame.

Talk about imprecision. I take it the point is that somebody got that line in to discount IIPA charges. But Libby certainly did intentionally and knowingly identify Wilson's wife as working for the CIA, according to Libby's ally's own account, recited two paragraphs later in the WaPo article. The claim is that he did not identify her by name -- which doesn't matter, best as I can tell -- and he did not identify her as a covert operative, which does matter. And which may or may not be true, remember.

Finally, for once I agree with the Minnesota boys who apparently favor anal sex (Hindrocket) and think they have a large penis (Big Trunk), and I should have added this to my theory of why Miller flipped: the agreement she got from Fitzgerald crucially precludes not so much bringing in other sources in the Plame matter but the other ugly case she is involved in that Fitzgerald is after her for -- plus, I would add, precludes more general, or non-Plame-related, questions about Miller's piss-poor, perhaps criminal reporting on WMD and Iraq.

[Jeff]

I do think that one part of what happened is that Libby's lawyer, Tate, threw some deliberate ambiguity at Abrams, saying in one breath that Libby's waiver was voluntary and with the next that this sort of waiver was inherently coerced. (Also, if this sounds like a last-minute rationalization, go back and read Waas' piece from the Prospect from before this round of negotiations, and notice the identical language, which suggests Abrams and Miller really perceived the ambiguity from Tate at the time.) For what reason? To run out the clock, or drag it out as long as possible, which they've succeeded at doing. Abrams is getting somewhat of a bum rap, if you buy what he puts in his letter to Tate.

Though from my armchair Miller strikes me as exceedingly narcissistic, I really don't think this was a publicity stunt on her part exactly.

One last thing: I can't get over the fact that he signs "Scooter Libby."

[Dwilkers]

So obviously it wasn't Libby's refusal to be more specific about the waiver, or to issue 2 waivers (or 16, or verbal waivers, or stand on his head), that was keeping Miller in jail.

So what was it then?

Beldar says the grand jury expiring wasn't really an issue - all Fitz would have had to do is empanel another. The Powerline post about her being concerned about being questioned on the charity issue is interesting, maybe that was it.

It could be that Fitz wouldn't agree to limit the questioning (excluding the charity) because he wanted to sweat her, to let her rot for a few weeks because he still resents her role in that. Clearly something triggered her willingness to testify now and it wasn't the waiver issue.

I just hope it isn't true (and somehow I doubt that it is) that Fitz agreed to only question her about Libby. It seems to me there are a lot of other interesting things that could be learned about Miller's role in this and what was actually going on that have nothing at all to do with Libby.

[TM]

I should have added this to my theory of why Miller flipped: the agreement she got from Fitzgerald crucially precludes not so much bringing in other sources in the Plame matter but the other ugly case she is involved in that Fitzgerald is after her for

Well, wait - what about my endless post right here explaining that Fitzgeralds's questioning is limied by the court order, not this new agreement?

And if Miller thought Tate was ambiguous a year ago, why wait until August to find out? Cooper did not wait to got to jail before negotiating a personal waiver (and, IIRC, his peresonal waiver amounted to an assurance that, yes, the original waiver was uncoerced and meant for him, too).

[TM]

OK, good point about that letter from Scooter, with the key clause:

As noted above, my lawyer confirmed my waiver to other reporters in just the way he did with your lawyer. Why? Because, as I am sure will not be news to you, the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call.

Emp. added. Now, set Russert aside and think about Cooper, whose version we know - I think Cooper fits in the last bit, as a person who knew about Plame before talking with Libby.

So Libby is saying that when he spoke to reporters, either (a) Plame did not come up, or (b) if it came up, both he and the reporter already knew about her.

Cooper is in (b), Russert may well be, Kessler and Pincus are in in (a) (I guess).

Bonus Speculation - since we have a leak that Libby and Miller did discuss Plame, *IF* Libby's letter means she is in the same pool as the other reporters, then she must have demonstrated knowledge to get Libby to talk.

Now, Miller might simply be Libby's mistake, as Cooper was with Rove. But he certainly seems to be saying, you told me stuff about Plame, too, remember (nudge).

Good catch.

[TM]

Having now read all three letters:

I know I am a partisan hack, but Abrams, Millers lead attorney a year ago, is an ass-covering phony.

His big complaint seems to be that Tate (Libby's att'y) noted that the White House was planning to sack anyone who took the Fifth or refused to sign a waiver.

Well, Abrams can't blame that White House rule on Libby, can he? Bear in mind that Libby worked deals with four other reporters (including Cooper, represented at the time by Abrams).

So Abrams claims that Tate "told him" that a waiver in such circumstances was inherently coerced. As an abstract point, I suppose it is, and as part of an abstract discussion, tate may well have told Abrams that.

But how come four other reporters missed Tate's emphasis of that point?

I don't think Cooper was looking for a chance to go to jail, and maybe Miller (through her att'y) just asked more follow-up questions about what is true coercion.

[Jeff]

TM - Good catch maybe, but bad interpretation on my part. I see now that (b) is what Libby means, and there is no typo with "knew." I think your speculation seems right too, though I think there is a good possibility that the July 8 conversation was news to Miller and set her on the trail of Plame, so that when they had their phone conversation on July 12 and Libby said, Wilson's an asshole, his wife works for the CIA in WMD, the CIA sent him, she sent him, Miller replied, Yeah, I knew that already. This is basically consistent with the theory of immaculate dissemination propagated with great verve by Swopa at needlenose.

As for this --

Well, wait - what about my endless post right here explaining that Fitzgeralds's questioning is limied by the court order, not this new agreement? --

sorry to say I pretty much discount how meaningful the limitations are. I'm no lawyer, but I suspect if something comes up (and Fitzgerald would presumably know how to make something come up), then those limitations melt away. As they apparently did with Cooper.

[Jim E.]

TM wrote: "I know I am a partisan hack, but Abrams, Millers lead attorney a year ago, is an ass-covering phony."

I think this is unfair. If you look at the top paragraph of page two of Abrams' letter, Abrams repeatedly writes how Miller (not Abrams) viewed the original waiver as "mixed" in its message and how Miller (not Abrams) was not satisfied with it being uncoerced. Abrams was clearly representing the wishes of his client. Nowhere does Abrams write that he advised Miller to make those conclusions.

Therefore, it is Miller -- and not Abrams -- who is the ass-covering phony. Abrams was just doing his job.

[cathyf]

sorry to say I pretty much discount how meaningful the limitations are. I'm no lawyer, but I suspect if something comes up (and Fitzgerald would presumably know how to make something come up), then those limitations melt away. As they apparently did with Cooper.

I'm with you, Jeff. Fitzgerald has a fearsome reputation for intelligence, determination and integrity. He's gonna just wink and nod if Miller lets slip some little thing? No, he'd be smart enough to catch it and appreciate it at the moment, and relentless about pursuing it.

If Fitzgerald has really agreed not to question her about anything other than that specific conversation with Libby, perhaps it means that Fitzgerald has decided "there's no there there." I've said all along that there is a fundamental dispute which everyone has been consistent upon:

Joe Wilson says that the white house was "outting" his wife as a CIA agent to reporters.

The White House (Rove, Libby) and the reporters (Novak, Pincus, Cooper) all claim that nobody knew about Plame's resume, or, more importantly, gave a s*** about it beyond the fact that she was Wilson's wife and she had a job (a job which any knowledgable person would know was not covert) which gave her the means to get the CIA to send him to Niger.

Suppose what Fitzgerald has uncovered is that nobody, White House or reporters, knew or cared that "Wilson's wife" was something more than a "WMD analyst" until Wilson started squawking about it, and furthermore, once Wilson made it an issue, reporters were able to figure it out using google because the CIA was (is?!?!) appallingly inept at keeping secrets. And he has discovered that reporters knew more than the White House anyway, because the White House cared even less than the reporters did.

That would make Miller the one last "loose end" whose testimony could contradict Fitzgerald's "perhaps Joe Wilson should seek professional help for his persecution complex while I go back to Chicago and investigate actual crimes" conclusion. If Miller already knew everything about Plame that Libby knew, and knew things about Plame that Libby didn't (highly likely given her WMD background), then Fitzgerald can say that he has done his due diligence, Joe Wilson's accusations are about something that never happened, the investigation is over, "move along, nothing to see here."

If Miller has been the recipient of classified info (and we know for sure that she has given the stuff she has written) then she hasn't committed any crimes, but the government employees who have passed her the info have. It's quite reasonable to imagine her going to prison to protect them from a zealous prosecutor exploiting every last bit of his prosecutorial discretion. And it's also quite reasonable to imagine that if Fitzgerald isn't interested in going after all those leakers it would be quite difficult in practice for him to be able to deliver the sort of reassurances that would truly reassure Miller.

If Libby's testimony was "every reporter I talked to about Plame already knew everything about Plame that we talked about" then a reporter corroborating Libby knows that the next obvious question is, "well, how did you know?" If Fitzgerald has given assurances that he isn't interested in the answer to that, then I think that it suggests that he's decided that there is no crime he is interested in pursuing and the investigation is over if Miller corroborates Libby. If he is going to try to prosecute Libby for perjury, then Libby's defense is going to be that Miller is lying. If Fitzgerald is going to prosecute based on Miller's testimony, then he HAS to know all about her sources for classified info, and there is no way he's going to be able to keep that promise not to question her about them. Fitzgerald's reputation for integrity is so high that I can't imagine him making such a promise if he's not going to keep it.

cathy :-)

[Geek, Esq.]

Did anyone else want to puke when they read Libby's engraved invitation/personal letter to Judy?

[Jim E.]

cathyf,
Why would a prosecutor bursting with so much intelligence and integrity so willingly take away the liberty and freedom of an innocent American citizen if he had already concluded "there's no there there"? That would make him (and the panel of judges that has endorsed FitzGerald's methods) stupid, unethical, anti-American and totally undeserving of the compliments you bestow upon him.

[boris]

had already concluded

Depends on the meaning of "already".

[Bob]

This is a little out in left field, but since we're playing guessing games here, ponder this:

Miller had been a target of Fitzgerald for another investigation, she and another NYT reporter, I believe it was Shenen, were accused by Fitzgerald's office of jeopardizing a search of some Islamic charity which Fitzgerald believed to have been funneling money to terrorists, claiming that they tipped off the people running the charity before the feds showed up with the subpoena. I don't know what went on between Fitzgerald's office and the reporters in that case, although I believe that some of the people in the charity case did a plea bargain.

At the very least, Fitzgerald must believe that Miller is a pain in the ass.

Secondly, as we know, Grover Norquist, an obscured but influential figure with this administration, has had much to do with Islamic charitable funding. There hasn't been a whole lot of press but it seems that there had been some noise down in FLA around the 2000 election about Norquist's connections, and then there was some questions about Operation Green Quest (a fed investigation more broadly checking into these Islamic charities) being undermined by the current head of Homeland Security, Chertoff.

Third, in the build-up to the war, Miller has performed more as cheerleader and propagandist for the administration rather than an actual news reporter.

Fourth, well... Well, I don't know what fourth is. I guess that the scope of the subpoena would have prevented Fitzgerald from asking anything about the last deal.

I guess that with as many scams going on as there seem to be, and with most of the top echelon on government willing to do things bordering on treasonous in order to secure very limited, tangible goals, I want to see some connection. You know, the same "reporter"/administration operative doing the heavy lifting to prevent the wheels of justice from grinding to a conclusion.

I want to see the string that connects the pearls. Maybe it's not there.

[Syl]

"As noted above, my lawyer confirmed my waiver to other reporters in just the way he did with your lawyer. Why? Because, as I am sure will not be news to you, the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call."

Actually, this doesn't make any sense to me unless 'our call' refers to Libby and Miller.

Libby is saying it all started with the conversation between Libby and Miller. And it is thus important to Libby that she testify as to the content of their conversation. Thus, why would his waiver be insufficient when it is obvious that it can only help him.

As for Abrams, it was his notion that this would be a First Amendment issue, a strategy not shared by Cooper's lawyers, and thus Abrams was not amenable to pushing for any kind of 'deal'.

I think the answer to 'why now?' is simply that Miller changed lawyers.

[Syl]

If one adds a comma between 'her' and 'before' you'll see it.

[Syl]

On the other hand, 'our call' does seem ambigous. TM's probably right.

[boris]

they did not discuss Ms. Plame's name or identity with me, or [already] knew about her before our call

My take is that our call and they go together and [already] would clarify the interpretation.

[Appalled Moderate]

I think the endless discussion of Judy Miller, who never published an article, with respect to this case, demonstrates how very far we have gone from the orignal article that started this whole mess. Libby has let it be leaked that he was not Novak's source number one. I would assume that he would not lie about this -- the lie would be expsed in a matter of weeks, if not days. So why all the hullabaloo? Why the prosecutorial interest?

A mystery writer would structure a case like this as an elaborate red herring to get your eyes away from the real criminal, who is right in front of your nose. Geek's candidate, Ari Fleisher, would be a great nominee on this basis. Problem is, Ari, too has denied being Novak source one. And, I just view it as impossible for Novak's #1 source to allow a lie like that to go into the papers. Because there is no doubt that lie will be exposed.

So, I cast my vote for a surprise candidate whose name has gotten lost in the shuffle. Dick Cheney. It's the only way Fitz's concentration on Libby and Libby's sources makes sense (since Cheney's source is very likely Libby). Now, calling Cheney "no partisan gunslinger" is a bit disingenuous for a description. But I think Novak used that phrase to signal to people that source 1 was not Rove.

Could be wrong. I submit that there is an awful lot we do not know. But, it's an explanation that seems to fit the facts.

[cathyf]

Why would a prosecutor bursting with so much intelligence and integrity so willingly take away the liberty and freedom of an innocent American citizen if he had already concluded "there's no there there"? That would make him (and the panel of judges that has endorsed FitzGerald's methods) stupid, unethical, anti-American and totally undeserving of the compliments you bestow upon him.

Well, if the leaks of Libby's testimony are the truth about what happened between him and Miller, then the "there's no there there" conclusion is purely a matter of prosecutorial discretion. It means that Fitzgerald is choosing to ignore any and all leaks that Miller recieved. In other words, to ignore that those leakers (probably rank-and-file civil servents) broke the law and/or committed firing offenses. If Miller went to jail because she wasn't sure Fitzgerald would ignore these other criminal acts, then that doesn't make Fitzgerald stupid, unethical or anti-American. It could simply mean that Miller was being pragmatic and reasonable in her skepticism. Miller knows lots of secrets from lots of people. This has been a hysterical witch hunt from the beginning, and if Miller's secrets get pulled out into the open there is a very real danger that innocent people will get ground up in the mill. (Or if not innocent people, then people whose guilt is trivial compared to the complete and total personal and professional destruction that they could suffer.) That Miller would be in jail for 3 months from unwillingness to take the risk of hurting sources does not prove that Fitzgerald would in fact go after her sources.

cathy :-)

[Jeff]

TM - Jim E. has at least half a point and maybe a whole one. You wrote

His big complaint seems to be that Tate (Libby's att'y) noted that the White House was planning to sack anyone who took the Fifth or refused to sign a waiver.

Well, Abrams can't blame that White House rule on Libby, can he? Bear in mind that Libby worked deals with four other reporters (including Cooper, represented at the time by Abrams).

If it is true that Abrams worked out the deal on Cooper's behalf with Libby's lawyer, that means Abrams is in the clear, and there are two main possibilities: 1)as Jim E. says, and you suggest, it was Miller who was more finicky, not Abrams, assuming Tate said the same thing to Abrams in his capacity as Cooper's lawyer as he said to him in his capacity as Miller's lawyer. The other possibility, however, is that 2)Tate said something different to Abrams as Miller's attorney than he did to Abrams as Cooper's attorney, and then Abrams was on good grounds interpreting what was up.

Another note on Libby's letter to Miller. A bunch of folks are picking up on the closing imagery

Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. [This is for real, you can look it up.]

Some are seeing this comment as a threat, others just as a maudlin tribute. I seriously doubt it's a threat, though it may be a reminder that is a variation on "we all hang together." I do think there's something more to it than just evocative imagery. Is it just Libby's expression that they are deeply connected, presumably as true believers in WMD or whatever? Is it in fact a promise that if she turns on him, he'll turn on her, whatver that would mean?

[Jim E.]

Jeff,
While I tend to doubt any hidden messages are there, you just blew my mind. Would be pretty cool.

The thing that struck me about the last paragraph is the Scooter referred to "suicide bombers" in Iraq. While the correct term, I thought "homocide bombers" was the preferred jargon for this administration. Take that, Fox News!

[Strick]

About Powerline's assertion that, "...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."

Isn't that contradicted by this quote from page 2 of the Washington Post article he refers to?

"Sources close to Miller said she had numerous government sources she wanted to protect, but Libby was the only one relevant to the Plame investigation."

[richard mcenroe]

It was Rove, dammit! Rove Rove Rove! ROOOOOOOVE!

Sorry. Missed some of the old conspiracy crowd...

[richard mcenroe]

You know Judy's screwed. Even Huffington's calling her out...

[dave in boca]

Miller wants to write another book. Howard Kurtz looks particularly like an ocean-floor crustacean scuttling sideways.... The NYT is becoming a legal, ethical, and moral mess!

[Jim E.]

Huffington's ALWAYS been anti-Judy Miller (for Miller's pre-war "reporting" and Plame stuff), so her op-ed is hardly a news flash.

[TM]

OK, good point about Miller being more finicky than Cooper (did he come across to anyone as a Profile in Courage?).

I suspect if something comes up (and Fitzgerald would presumably know how to make something come up), then those limitations melt away. As they apparently did with Cooper.

Keep in mind - Cooper got two subpoenas. The first was for Libby - Cooper was cited for contempt, then worked a deal. Pretty much as he was leaving the room after that testimony, Fitzgerald handed him a subpoena for Rove.

My point - if Fitzgerald is not limited by these subpoenas, why did he need two with Cooper?

Possible answer - he had struck a deal with Cooper to limit the first round of questions to Libby.

To which I say - then why couldn't Fitzgerald have done the same thing with Miller a year ago - strike a deal on Libby, then get a new subpoena?

Another possible answer - Fitzgerald had complied with DoJ guidelines in the Cooper case because he already had Rove's testimony, so the "two subpoena" strategy was easy.

With Miller, Fitzgerald doesn't have the testimony from the other end of the conversation, so he might have chosen to skirt DoJ rules by getting her under oath on the Libby subpoena, then expanding his inquiry.

And I say, fine, she can politely decline to answer his questions, argue they are beyond the scope of the subpoena, and take it to a judge. Her worst case is she goes back to jail for continued contempt.

My mind has not been changed on this - Fitzgerald's deal was always available to Miller, and his questioning is limited by DoJ guidelines, and (I think) the terms of the subpoena.

[Jeff]

There's some clarification -- or, depending on how you look at it, renewed cause for confusion -- from Bennett in TIME's new article:

In his deal with Miller, the prosecutor agreed to limit the scope of her testimony before the grand jury, focusing only on the reporter's conversations with sources about Plame, according to her lawyer Bennett. Miller wanted to rule out of bounds any questions about her reporting on WMD, a lawyer involved in the case told TIME.

Maybe this will put to rest the incipient blame-Fitzgerald's-pass-to-Miller-on-testifying-regarding-her-imagined-conversations-with-Wilson-or-Plame defense John "Hindrocket" Hinderaker is working up over at Powerline, for the use of the great robotic right. But it appears confusing, because it appears to conflict with the account Miller is reported by ABC (cited in TM's post) to have given of the deal with Fitzgerald -- unless they are equivalent because she had conversations with no other sources about Plame beyond Scooter. Either way, presuming Bennett knows what he's talking about, maybe the specific deal reached was, Miller will talk about conversations with sources about Plame, but not about other stuff -- which for her was important so she didn't have to revisit her problematic, embarrassing and -- who knows -- maybe criminal WMD reporting. This might explain away TM's arguments from what happened with Cooper, since the terms of the deal with Miller are fully distinct, both as to what is in and what is out.

As far as I can tell, the only other interesting thing is the TIME piece is this:

Miller had spent nearly two months in jail on civil contempt-of-court charges when negotiations between the two camps resumed. Another Miller lawyer, Robert Bennett, picked up the phone on Aug. 31 to call Tate. Bennett told TIME that the Miller camp had received an indication from a third party that it might be a good time to approach Libby with a new request to personally waive the confidentiality agreement.

Now, maybe the third party was Fitzgerald himself. But wouldn't it be fun if that third party were John Bolton, who we know visited Miller, and in August, right? Although I think it would have been in the first half of August, which means it would have taken an awfully long time for Bennett to pick up that phone and call Tate.

[TM]

Interesting bit on the deal. Her subpoena (as described by the court), says:

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.”

And from Iraq efforts to obtain uranium to WMDs generally is not much of a stretch, I guess. So maybe a clarification there was in order.

As to the PowerLine theory - don't ask me what else I can do to re-direct that. I'm not having any success with e-mails, and they don't seem to be inclined to link to this argument.

That said, it is not *just* the robotic right - Digby likes the idea that Fitzgerald gave up on a full expose, (I infer from comments at TalkLeft - I didn't find the killer psot at Hullabaloo).

Third party tipping Bennet - love the Bolton notion, but Murray Waas says his story had impact, so maybe it was just someone who had read that.

[kim]

Hey, despite the earnest desires of the left for Bush and Co. to be simple cowboys, it is repeatedly demonstrated that they are not.

Why not appoint as marshall the tight-lipped fearless gangbuster from the next county who's already acquainted with the treacherous ways of one of the pretty ladies in the saloon?
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[kim]

Dozin', drawn out, does he drawl? Zzzzt. Queeks draw, McGraw, zee snake has no longer legs to stand on.
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[kim]

Dozin', drawn out, does he drawl? Zzzzt. Queeks draw, McGraw, zee snake has no longer legs to stand on.
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[kim]

It is Tenet's inadvertent egg. The hawk hatched another predator's spawn. The eagle has taloned the viprous head, but is lashed by the tale.
=================================================

[kim]

Just settin' this little gem in context.
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[Jeff]

TM - I saw your related post on the other thread and I realize that you thought I was referring to Powerline's old Charities case theory when in fact I was referring to the newfangled argument, which is tailor made to defend indicted Republicans from an irresponsible prosecutor, so tailor made that it requires utterly misreading what Abrams says. Though I still can't quite wrap my mind around the DoJ guidelines business, here's a theory that seems to be consistent with what we know (of the deal): what if the basic content of the deal between Miller and Fitzgerald was that she would agree to testify to everything she knew about Plame (which very well may have extended only to conversations with Libby, as far as confidential sources go) if Fitzgerald agreed to not go after the broader issue of uranium-seeking by Iraq and, potentially, her WMD reporting more generally? In one of the latest things I've seen, either Abrams is reported saying, or Miller says on Lou Dobbs, something like in effect the deal limited her testimony to her conversations with Libby, which may mean the official deal was, all conversations relating to Plame are on the table, but as a matter of fact that only means conversations with Libby. The only trouble with this is that it is inconsisent with Miller learning about Plame between July 8 and July 12 from some other source, as Libby very well may have wanted her to -- except if she learned it from a source she doesn't consider confidential or who has somehow already released her.

In any case, I realize that the suggestion that Miller's focus was on the Fitzgerald piece of the deal-puzzle is to be sympathetic to Libby, probably. I'm working on that. I still do think that Libby deliberately held out on Miller, but I suppose one possibility is that he did so thinking that Miller wanted him to hold out because of the other piece of the puzzle.

[clarice]

Why assume Libby is lying?

Here is Judy's subpoena again:

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.

Couldn't this testimony be related to a conversation she had concerning Iraqi efforts to obtain uranium before July 6?

The dates in the subpoena relate to the period of time between the Wilson op ed and the Novak column because that was the initial charge, that Libby tried to "retaliate" against Wilson by "outing " his wife to Novak.

Perhaps in the course of his/her/both of their testimony it was revealed that they'd had a discussion relating to Wilson and Iraq's effort to obtain uranium .Perhaps her conversation related solely to something she'd learned about Iraqi efforts to obtain uranium.The subpoena required her to testify about that whether or not the conversation was about Wilson.

As a side note In his June 14 EPIC speech he says we might find some nuclear weapons in Iraq (and he said Iraq would be justified in having it.) But a careful reading of the subpoena goes beyond Wilson/Plame It says concerning W/P or Iraqi efforts to obtain uranium.

[clarice]

That would also explain her new notebook--the prosecution limit on the July 6-13 period applied (probably in error) to both aspects of the subpoena (W/P AND Iraqi efforts to get uranium) and there was no rational reason to put that time limitation on the second .Either or both volunteered info outside that time framework and Judy brought in her notes as confirmation.

[clarice]

There's a reason why Libby holds the position he does:He's very smart.

The instant ascribing of devious motives to him (or to Miller for that matter) and the suggestion whenever something comes up not immediately explicable that he's lying or covering up is unwarranted and can lead to ridiculous conclusions.