The Libby-Miller Correspondence

The NY Times has posted the correspondence between Libby and Miller that eventually led to her jail break (via Glenn, we see that Powerline has found these letters as well).

We are most intrigued by this passage, in the letter from Libby to Miller, in which he proclaims that her testimony will aid his case:

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.

Since he is referring to their public statements, this is not really news - for example, Cooper told Libby about Plame on July 12 after he talked to Rove; with Kessler of the WaPo, Libby did not mention Ms. Plame (but did Kessler?); Tim Russert's evasion has been noted; and we are letting Walter Pincus slide for the moment.

Well - since Libby-philic leaks have told us that Libby passed some info about Ms. Plame to Miller, is this letter hinting that Ms. Miller passed some info back?  The recent leaks describe Libby's side of the conversation, but not Ms. Miller's, so we wonder.

At Powerline, the new post re-opens the speculation that Ms. Miller was intent on securing a deal with Fitzgerald that limited her testimony.  I will note their point that it is hard to understand why she stayed in jail after getting the new reassurance from Libby, but - I still don't understand why Fitzgerald's questioning is not clearly limited by the terms of the subpoena with which a court had ordered Ms. Miller to comply.

I continue to be deeply skeptical that Ms. Miller's highlighting of her deal with Fitzgerald limiting her testimony is anything other than a PR ploy intended to blame Libby and Fitzgerald for Ms. Miller's extended, baffling stay in jail.

MORE:  Jack Shafer is good on this, as expected - he likes the theory I have tagged as "Jail's a bitch, even if you are..."

UPDATE:  I get a No Sale from the left, specifically, attorney Jeralynn Merritt of TalkLeft.

OK, she should know, but... I still don't understand (a) why DoJ guidleines don't limit Fitzgerald's questioning; (b) why Fitzgerald managed to negotiate very limited testimony from four other reporters (Kessler, Pincus, Russert, and Cooper on Libby) rather quickly;  and (c) why, if the subpoena/court order specifically cites one official and one week's worth of notes and conversations, the actual order is much broader.

I will also toss in an additional factoid - after Cooper testified about Libby, he was slapped with another subpoena to talk about Rove.  Why, one might wonder, did Fitzgerald not question him about both under the first subpoena?  Or, since Fitzgerald had agreed to a deal on the first subpoena, why did that deal not encompass both Libby and Rove?  My theory is that Fitzgerald's subpoenas are limited.  Other views...?

My *guess* as to what Jeralynn is saying about point (c) is that any normal subpoena is naturally broad, and the addition of a particular detail about a particular conversation does not implicitly limit it.  Fine, but - this is a heavily contested and controversial subpoena to a reporter, subject to DoJ guidelines.

At a minimum, I think a deal was always on the table and that Ms. Miller could have negotiated a limit to her testimony a year ago, as four other reporters did.  Which means that her citation of Fitzgerald's agreement to limit her testimony as the breakthrough that led to her release is as phony as her citation of the new waiver as a breakthrough.

At a maximum, I think she could have refused to answer questions about anything other than Libby as beyond the bounds of the court order with which she was complying.  However, that belief seems to be in defiance of my counsel's advice.  Troubling.

That all said, I am with the crowd that thinks Ms. Miller is very interested in avoiding testimony about her many other sources; I just think that we are seeing hype and spin from her side when they suggest that Fitzgerald offered a deal now that was not available a year ago.  Fitzgerald could have done with Miller what he did with Cooper - strike a deal on her Libby testimony, then re-subpoena her for more.

UPDATE 2:  Texas attorney Beldar takes up my case and my cause, and man, do I welcome the support.

Comments

[boris]

I still don't understand why Fitzgerald's questioning is not clearly limited

Fitz: "Did you first learn about Wilson's wife from Libby?"

Judy: "No"

Fitz: "Where then ???"

Does it need to be any more complicated than this?

[Dwilkers]

/agree with Boris.

To me it is plausible that she (and her lawyers) were worried about excursions away from the subject at hand that could implicate her. Remember she appears alone, without her lawyer present, and its not like there's a judge or referee present to whack Fitz (or the grandjurors for that matter) on the knockles if he gets fiesty.

[Rick Ballard]

It is my understanding that grand jurors can direct questions to witnesses through the prosecutor. Does Fitzgerald's "agreement" bind all the jurors?

[SteveMG]

Rick:
"Grand jurors can direct questions"?

Yep, that's why they're called, when jurors get really frisky, runaway grand juries.

And my understanding is that any promises by Fitzgerald to limit questioning of Miller are as viable as the NY Times' corrections policies when they apply to Paul Krugman.

In other words, meaningless.

SMG

[Geek, Esq.]

It's possible that Judy didn't want Fitzgerald asking her about past activities--either with Islamic charities or her WMD reporting.

[SteveMG]

Geek:
"Her WMD reporting".

You mean her _sources_ for WMD reporting, correct?

Pedanticism aside, Miller was writing articles warning about Saddam's (and other countries') WMD threats during the Clinton years. That's where she obtained her information, some of it probably classified.

For some reason, Miller's critics are alleging (or appear to allege) that her tocsin's about Saddam's WMD only began when Bush took over. That somehow she was in cahoots with those nasty neo-cons to disseminate propaganda. Miller was warning about the threat from NBC programs throughout the 1990s based on information, it appears, provided by Clintonistas.

E.g., her 2001 book was based largely on reporting she and her co-authors did during the Clinton years.

SMG

[SteveMG]

Hmm, looks like it will be the old conspiracy charge.

W.Post reports some interesting behind the scenes accounts about what Fitzgerald is trying to cobble together.

I.e., Rove, Libby et al. didn't violate the covert agents statute but they did _conspire_ to engage in activity that had a criminal purpose - i.e., revealing a covert agent's identity.

Has Earle been advising Fitzgerald?

SMG

[jerry]

Bob Bennett told Chris Matthews on Friday that they had agreed to discuss Plame, not just Miller's source.

Here's an interesting link for you guys:

http://thinkprogress.org/2005/10/02/bush-directly-involved/

[TM]

Let me not leave a false impression about the extent of my disagreement with PowerLine or others - I also think Judy was worried about being questioned about other sources. I just disagree that this subpoena gave Fitzgerald the power to do it. Put another way, I think that if Fitzgerald had offered this deal on limited testimony a year ago, she would have turned it down, in part because that would have left Fitzgerald with a year to come back with a new subpoena.

I also think that she had some sense of being a First Amendment hero, and did not like jail, so I am invoking multiple motivations here.

As to the link suggesting that Bush and Cheney were involved in some of these discussion - gee, you mean Bush and Cheney were involved in some of the discussions about how the White House should handle the "16 Words" scandal? Do tell.

I also happen to think (in my non-lawyerly way) that yes, grand jurors can ask anything they want. However, Ms. Miller can politely refuse to answer (or, if she wants, she can be rude, since she is not a subject of the investigation).

The only consequence (which is non-trivial) - some judge will rule on whether her refusal to answer violates her subpoena, and she may end up back in jail.

[cathyf]

To refine boris's thought -- Fitzgerald's most logical question is not "Who, then?" but the more limited, "Was the person who told you who Wilson's wife is a government employee?" And only if the answer is "yes" would he ask "who is it?" And if the answer was "no" then the next question would be "was it someone other than Judy Miller?" This would be in line with DoJ guidelines that say that investigations should not interfere with journalists any more than is necessary. It's only against the law to reveal classified info if you are a government employee, and if it's not against the law then it shouldn't be of interest to a prosecutor. If everyone's testimony so far is that the ultimate source of the info is Miller, then she is different from everybody else in that she knows who the government employee is and what information the government employee revealed.

So it's possible that the difference between Miller and every other reporter that negotiated a limit to questions is that all that stuff that the other reporters didn't want to talk about wasn't relevant to Plame's identification, whereas the source(s) that Miller is trying to protect is(are) the one(s) who identified Plame. And 3 months in jail makes a lot more sense.

This could get really interesting if Miller says that Libby told her who Wilson's wife was and what she did, while Libby has testified that it was Miller who told him. If Fitzgerald tries to bring a perjury charge against Libby with Miller as his witness, then Libby's natural defense will be that she is lying, and he will have the right to ask wide-ranging questions about all of Miller's sources in order to further that defense. So if Wilson was right, and Libby was outting Plame to Miller to get Wilson, then Miller's best way to protect her WMD sources is to commit perjury and back up Libby's story. If she says she got the info from a CIA analyst source, says that the analyst was very clear that Plame was non-covert, and refuses to identify the source, then the investigation will be over. If Miller can convince Fitzgerald that the government employee who identified Wilson's wife as an WMD analyst had no clue that she was classified as covert, then IIPA says no crime was committed.

cathy :-)

[Beldar]

Tom, thanks for the comments over at my place, and the link here to the (more readable) copies of the correspondence. I'll throw a few observations into the mix -- speaking as a trial lawyer, albeit one whose personal experience has been almost entirely in the civil arena rather than this one.

Contra your assumption: In grand jury proceedings, and in pretrial and trial proceedings before a judge, witnesses are not generally free to simply refuse (whether politely or rudely) to answer an examining lawyer's questions. Unless an objection has been made and sustained, or there's been an assertion of a recognized privilege that's upheld, witnesses are generally required to give whatever evidence they possess. The subpoena compels not only their appearance (and perhaps their bringing of specified documents and things), but also their testimony. Refusal to answer, just like refusal to appear at all, can give rise to civil contempt of court, or potentially even criminal contempt of court. (And that's the backdoor way that a witness' assertion of privilege gets heard by a judge when the witness has refused to answer questions before a grand jury, where no judge is typically present to consider and rule upon other, more routine evidentiary-type objections like "argumentative" or "compound" or "hearsay.")

The consequence of this general rule is that in the ordinary case — one not involving a reporter as the witness — the prosecutor (or any other examining lawyer) has extremely wide discretion and authority with respect to the subjects about which he inquires. And in a grand jury, there's no judge present to hear or rule upon the sort of "relevance/fishing trip" objections that might be made in other judicial arenas. The prosecutor is therefore especially free to stray far afield from his original intentions when he invited or subpoenaed the witness to appear before the grand jury. He may indeed ask follow-up questions that lead him down all sorts of other paths (or rabbit trails). And when before grand juries, prosecutors don't face the downside of annoying a judge or regular jurors, so they have the luxury of blundering and fumbling around more in hopes of stumbling over something surprising and important.

These are some of the reasons why the prospect of giving grand jury testimony is so unsettling for any witness — once you're in there, things can normally go almost anywhere, calling time out isn't allowed, and you're without counsel or a judge to run interference for you.

However, I very much agree with your original point: The DoJ guidelines, although merely guidelines and not rules, nevertheless take our present situation out of the general rule. So long as federal prosecutors follow them, those guidelines in effect function as a pseudo-privilege.

It's entirely unclear, and I think actually quite unlikely, that Judith Miller would have gotten any more protection from any state shield statute, or from any proposed federal shield statute, or from any federal common-law privilege, than she's already gotten via the DoJ guidelines. The guidelines' protection, like that of the shield laws, has never been absolute and has always been subject to being overcome upon a proper showing (which every federal judge who's looked at this case has agreed that Mr. Fitzgerald has indeed made with respect to Ms. Miller).

But I believe you're absolutely right: Those guidelines don't just limit the circumstances under which a federal prosecutor can subpoena a press witness, but they also limit the scope of the questioning he puts to that witness once he/she is there and on the witness stand.

I'm not suggesting that the DoJ guidelines are every bit as comforting, from the standpoint of the reporter witness, as a formal privilege created by a shield statute or its common-law equivalent would be. The three judges on the DC Circuit panel, while confirming that Mr. Fitzgerald had complied with the DoJ guidelines, nevertheless also agreed with the DoJ's position that they're only guidelines that restrict the DoJ, and that they do not create a "right" or a formal privilege that belongs to and may be independently asserted by any witness. The sanction for violation of the DoJ guidelines is the prospect of the federal prosecutor facing internal discipline (or simple loss of face) within the DoJ — not the exclusion of the testimony obtained in violation of the guidelines. There's less opportunity for judicial review and intervention, then, with respect to the DoJ guidelines, and the witness must rely on the ethics and professionalism of the federal prosecutor. So in requesting advance assurances as to the intended ambit of his questioning, Ms. Miller's counsel weren't acting unreasonably.

But Mr. Fitzgerald's excellent reputation -- among fellow prosecutors, defense lawyers, judges, politicians of every stripe, and anyone else who follows such things -- is long- and hard-earned. Unless one's willing to posit that Mr. Fitzgerald was going to engage in a bit of deliberate career-ending trampling of the DoJ regulations (by chasing down rabbit trails with a press witness as to which he hadn't yet demonstrated a compelling need and thoroughly exhausted other avenues of inquiry), then Ms. Miller has never been at any real risk of his questioning running amok, far beyond the scope of her communications with the confidential source originally under scrutiny (whom we now know for sure to be Mr. Libby).

It's therefore doubtful that Mr. Fitzgerald took any offense at being asked (and/or re-asked) for assurances But it's also doubtful that he had any reluctance to give them, either now or if asked for them a year ago. Either way, he probably would reserve for himself the right to recall Ms. Miller for broader questioning; but before doing so, he would again have to comply with the DoJ guidelines for that broader questioning, and having then done so, would probably be happy to give further assurances that his new questions wouldn't go beyond what his new investigation had justified (on grounds of necessity and exhaustion of other means).

Bottom line: I'm highly, highly skeptical of Ms. Miller's lawyers' suggestion that Mr. Fitzgerald just recently gave up something new or important or meaningful that suddenly changed Ms. Miller's analysis and justified her decision to testify. It's quite possible that her lawyers didn't ask for the same assurances earlier, but I think it's very, very unlikely that they asked for and yet were denied them. Likewise, while it was prudent for Ms. Miller's and Mr. Libby's lawyers to confirm that Mr. Fitzgerald wouldn't look askance at them having direct discussions (i.e., Mr. Fitzgerald wouldn't charge anyone with obstruction or witness-tampering for that), there's no reason to believe he wouldn't have given that same assurance a year ago either. At this point, we know for sure that Mr. Fitzgerald wants (and has long wanted) Ms. Miller's testimony on the subjects as to which he's already complied with the DoJ guidelines. That tells us a lot, and it's quite certain. But whether he wants, or has ever wanted, anything beyond that from Ms. Miller is really, really speculative, and almost certainly without any present justification.

[Jeff]

This may be a silly question, but: was the deal Miller got from Fitzgerald in reference only to this subpoena, or did it cover Fitzgerald's and the grand jury's questioning of her altogether? Fitzgerald had to go back for a second subpoena for Cooper. This is the fate that Miller wants to avoid, as she had expressly said in some interviews a while back. So maybe Fitzgerald's subpoenas are limited in something like the way TM thinks. But maybe the deal Miller struck with Fitzgerald was, in effect, "No Cooper-ing Miller, no second subpoena." It's hard to imagine Fitzgerald would go for it. But maybe he knows exactly what he's going to get from Miller, and what the grand jury needs.

As for the interpretation of that most interestingn line in Scooter's letter to Miller, let's assume it's not part of a big lie, and nor are the Scooterific leaks we've gotten in the last couple of days. (One of the things that makes me skeptical that Scooter is a truth-teller is the timing of those leaks. All this time, and now he tells us his side of the story?) Then it seems to me that the unambiguous implication is that Miller knew about Plame before she and Scooter talked on the 12th. Scooter says, we acted toward you and your lawyer exactly as we acted toward the others, because you were all in one of two categories: either Scooter and the reporter didn't talk Plame at all, or the reporter already knew about Plame (knew what is a question that Scooter leaves helpfully -- for himself! -- ambiguous). Since we know from the leaks that Scooter and Miller did talk about Plame, she therefore falls into the second category, she knew about Plame. Again, we don't know what she knew, and we don't know that she knew everything that Libby may have told her, and we definitely don't know that Miller provided Scooter with any information that he didn't already have.

I still am impressed by the fact that Libby, unlike most of the media, is able to recognize the significance of knowledge of Plame's identity apart from knowledge of her name.

[Jim E.]

TM wrote: "Cooper told Libby about Plame..."

Does Libby even make this claim? It's not like Libby hasn't been leaking his side of the story. Seems strange that TM continues to push a pro-Libby line that not even Libby is pushing.

[Jim E.]

It would be more accurate to write that Cooper "brought up Wilson's wife" with Libby. Using "told" and "Plame" give a misleading (at best) impression for casual readers.

[Rick Ballard]

It would be very amusing if Fitzgerald announced tomorrow that it's all wrapped up and turns in a ten page report with no bills.

No indictments, every journo involved rolled over to get their belly scratched and the latest crap piece from Pincus can be used to further mock him forever.

A just reward for the propagandists that have pushed this ephemera for two years.

[Jeff]

So, Rick Ballard, your standard for restoring honor and dignity to the White House is: not indicted! How impressive.

[Tm]

In support of the view that Miller was just stalling for time, here is Isikoff (who gets trashed in a different comments thread, but go figure):

Oct. 10, 2005 issue - New York Times reporter Judy Miller broke her silence and agreed to testify before a federal grand jury last week. This followed tense, often acrimonious negotiations that began after special Justice Department prosecutor Patrick Fitzgerald signaled he intended to reimpanel a new grand jury—a move that could have kept Miller in jail for another year and a half, say two lawyers close to the case who asked not to be identified because of the sensitivity of the talks.

So, she did not talk because Fitzgerald suddenly offered a better deal, or because she had second thoughts about Libby's waiver - she worked a deal because she realized that running out the clock was hopeless.

Now, maybe she should have always seen that day coming, but maybe she wanted to test Fitzgerald and see if she could out-wait him.

[M. Simon]

Jeff,

My answer for restoring honor and dignity to the White House is not impeached. Well anyway, not convicted.

[M. Simon]

Jeff,

An even better standard is: no laws were broken.

The only complaint left is policy. However, differences of opinion on that are normal.

[Rick Ballard]

Jeff,

I respect Fitzgerald enough (based on his past actions) so that if he 'no bills' this matter I will presume that no laws were broken.

You can howl in the wilderness 'til you your voice follows your mind but the only thing that happened here is that the press revealed the depth of its mendacity.

Honor and dignity were restored to the White House when the sound of the last jangle of silverware rattling in Bubba's pocket faded in the distance.

[Jeff]

Rick Ballard - Good arguments! Nothing inconsistent in what you say! And this --

Honor and dignity were restored to the White House when the sound of the last jangle of silverware rattling in Bubba's pocket faded in the distance. --

exemplifies the combination of cult of personality around Bush and moral-political bankruptcy that is such a striking feature of the contemporary right.

M. Simon too: you have astonishingly low standards. As long as Bush is not impeached -- and with this Congress I actually think there is nothing that Bush could do that would lead him to be impeached -- and as long as no laws were broken (or provable beyond a reasonable doubt), then we've got honor and dignity. Again, the moral-political bankruptcy of the contemporary right on display. There are laws broken or unbroken, and then there is merely policy. Far be it from you to make any judgments.

[kim]

Sorry Jeff, despite your credulity with respect to Joe Wilson, you cannot stand there and defend Joe Wilson and complain about moral-political bankruptcy.

Go reread his February 6,l 2003 LATimes op-ed in which he proclaimed his views that Saddam had chemical and biological weapons.

Go figure wheare his income has been from, LATELY.

Go figure why even Kerry couldn't bear the irony of the 'Politics of Truth'.

Go figure out Val.

And Company.
=============================================

[Jeff]

kim - Thanks for telling me what I can and cannot do. Regardless of that, I have no "credulity with respect to Joe Wilson." My basic response to rest of what you say is, "Yes, and?" Imprecision in your characterization of Wilson's 2-6-03 op-ed aside, I don't understand what you think the implication of that point is? Wilson more or less repeats that point in his famous NYT op-ed, and it is indeed part of his argument. Go back and read it, and try to pay attention to his argument. Here's a hint: one part of his argument is that the Bush administration appears to be trumpeting claims about WMD based in part on the Niger business, which he believes to be without basis, not on the threats he perceives as more real. And the Bush administration is formulating policy on that basis. This makes the Bush case, both policy-wise and in front the American public, look less credible to Wilson.

Explain what the point is about where his income has come from lately. I assume he did well by his book. So what?

The claim about Kerry has been shown to be without basis, Jeff Gannon's claims to the contrary notwithstanding.

You've yet to show any basis for your continuing ominous insinuations about Val and Co. We'll obviously know more if Fitzgerald lets us in, one way or another, on what he knows.

[kim]

The basis for my insinuations about Joe, only maybe Val, are my interpretation of his character, gained by comparing his speech with his speech. He prevaricates.

What has been the source of his income since, uh, say, when he left the Diplomatic Service? Why did he leave anyway, and are there other person accounts of his exploits in the Mideast?

I don't know nuttin' from Gannon and assume that must be a red herring. Kerry's campaign dropped Joe like a hot potato when his testimony for the 9/11 Commission came out.

My point about the LATimes piece in which Joe claimed that Saddam would use chemical and biological WMD merely points out that all this savaging of the Yellowcake Strawman by Joe simply begs the question of "What do we do with Saddam".

So answer it. You or your confrere, Joe.
=========================================

[M. Simon]

Jeff,

What exactly must the President do to gain credibility in your eyes?

My guess is - fire people you don't like.

In other words you don't like the policies of this administration. Those policies are in conflict with your views on morality. Fair enough.

The proper correction for that is that you must find a candidate you like and get him/her elected.

BTW what was your position on the Clinton Admin. ? And have we ever come to a proper definition of "is"?

Personally I liked Bill. He proved once and for all that Presidents are only men. A great service to the country that came at great personal cost. If I had to take calls from Yasser Arafat I'd want my personal assistant on her knees too.

In any case I do not see demons lurking. Just men with all their limitations.

[kim]

Lucky enough to be surrounded by smart women.
=============================================

[Jeff]

kim - More or less what I thought. I still don't understand what you're trying to imply about Wilson's income source and its relevance? It's not true that Wilson was dropped by Kerry, and the source for that story was Jeff Gannon. It seems to me Wilson's LAT op-ed was addressed to the question of what we do and don't do with Saddam, and it wasn't bad. I will tell you what we don't do in a democracy, we don't mislead the public in its deliberations about whether to go to war or not.

M. Simon - It's true the President has pretty much blown his credibility with me. But yeah, given what he and his administration said, he shoulda fired Rove long ago, at least. More generally, he wanted to get to the bottom of it, he could have quite easily, demanding that those involved in the leak come forward to him. It's also true that, to a large extent, I don't like the policies of this administration. Your comment about the proper correction being getting someone elected shows a deep misunderstanding of public life in a democracy, especially a presidential one. As for the Clinton administration, I'm not sure what you're asking. I do, however, think that the Bush administration has shown even more mastery of so-called Clintonisms -- that is, casuistry, rhetorical sleights of hand, the use of weasel words, and so on -- and on much more weighty matters than Clinton ever did.

[kim]

I suppose Jeff Gannon disappeared Joe Wilson's Truth in Politics page on Kerry's website? I suppose he disappeared Joe from Kerry's campaign?

I didn't know Jeff's ARMS were that long? Or was it his nose he was sticking into your business?
==============================================

[kim]

And you still haven't read Duelfer and Rosett. They have information that postdates Wilson's knowledge, and shows that Saddam was dangerous enough to require removal.

Answer that. Joe can't. You can't either.
===============================

[Jeff]

kim - Just spell that out a little, and give me some section numbers from the Duelfer report for what you're saying. I can't find the conclusion that Saddam was dangerous enough to require removal, or the basis for it. I'm unfamiliar with Rosett. What is that?

[kim]

Duelfer's conclusions were that Saddam was maintaining as much capability to re-acquire WMD production as was possible under UN sanctions.

Rosett's conclusions were that Saddam was perverting the UN and the Security Council into lifting sanctions, directly through Oil for Food, and indirectly as creditor.
===============

[Jeff]

kim - That's what I thought: your headline doesn't match the substance. To say nothing of the fact that Duelfer says Saddam's intent was directed principally at countering Iran, and secondarily at balancing Israel and other countries in the region.

[kim]

Oh, you deign to divine Saddam's intent? It was his foolish unpredictability that made him dangerous, not just his viciousness, his power and his ambitions.
==============================================

[kim]

And the substance is there. Saddam would have regained WMD and used them as the rogue he is.
==============================================

[M. Simon]

Jeff,

I think Rove is perfect. He drives the opposition crazy.

As to Bush asking those involved in the Plame affair to report to him: how do you know he didn't?

In any case - the cure is to get some one you like elected. Good luck. In the last election I didn't vote Bush because he was my ideal candidate. Very far from it. I just thought Kerry would be much worse.

BTW according to rumors Rove is a witness not a target.

[TM]

Evidently the Hindrocket is going to respond without actually linking to me - in his latest post, he fully embraces the Abrams spin, jettisons his Islamic charities theory, and declares himself to have been right all along.

Whatever.

He does resolutley refuse to acknowledge the existence of DoJ guidelines, however.

[kim]

The well-beloved ballistic one is off target; I'm hoping he can be re-directed rather than destroyed.

Fitz isn't entertaining another grand jury to launder gossip. He's after justice and criminality on a grand scale. I think he's despising varmints and pursuing large predators. And note that the White House has constantly been prey since the opening beats of the overture 'The March of the Web-footed Amphibians'.
=============================================
=============================================

[Jerkweed]

Ah-TM-will you now grasp in practice what you failed to grasp in theory?

The Powerlies gang is despicable.

[TM]

Here is a summary of the Islamic charities case.

[TM]

I'm hoping he can be re-directed rather than destroyed.

Talk is cheap, but time will tell.

Ah-TM-will you now grasp in practice what you failed to grasp in theory?

Don't over-estimate your ability to read my mind.

[Cecil Turner]

Evidently the Hindrocket is going to respond without actually linking to me - in his latest post, he fully embraces the Abrams spin . . .

Not sure why the RocketMan can't get any love on this one (especially since his logic trajectory matches mine). Judy gave two reasons: Libby's release; and Fitzgerald's agreement to limit questions. The first was obviously no major hurdle, the second is essential if she's actually protecting an unnamed source. Assuming she didn't totally make up her excuse, the second part is the only reasonable sticking point. It seems to me that whatever the answer, the ballistic one is at least asking the right question.

As to speculating on who the source is, logic suggests it's someone: 1) who'd know; 2) and be talking to the Times; 3) and not really interest Fitzgerald. Does anyone fit all those criteria? Consider that in the lead-up to this mess, the Times had run several editorials about the Iraqi Africa connection, citing an expert source. Judith Miller was generally on the WMD beat . . . and her previous writings didn't really support Wilson's version. Why would the Times treat Wilson as the unassailable expert on the subject? On the basis of one short trip even he didn't think found anything? Or might the subject of his wife's employment have come up in the discussion of his bona-fides? ("How do I know? My wife runs the WMD proliferation desk at the Agency.")

Obviously that's speculation, but it seems to fit all the known facts. Fitzgerald's interest would be academic (since there's no crime committed, and at any rate he doesn't have a brief to investigate loose-cannon former diplomats), but since it's pertinent to his investigation he'd be loathe to agree to avoid the subject entirely. If so, the only logical reason he'd change his mind is the one proffered by the Rocketeer:

The only explanation I can come up with is that in the past year, Fitzgerald has concluded that there is nothing to the Plame story . . .

[kim]

Agreement Schreement. What good would that paper do when a defense attorney started a line of inquiry? This agreement is hogwash, just as the no release from Libby was hogwash.

Judy's in a bind.

Remember one tie binding Fitz's hands. That's the Plame/Wilson knot.
=========================================

[kim]

This prosecutor is too smart to enter a trial with questions he doesn't know the answer to. Why would you think he would agree to do that?
===============================================

[kim]

I think that is what misdirected John. He is taking the value placed on the agreement by Miller's lawyers uncritically. Just what does that agreement mean? John assumes that Fitz is no longer interested in 'other' information. I disagree. And since I'm privy to Fitz's thinking, I'm right.
======================================

[kim]

Think like a cop. "So this is what you don't want to talk about".
==================================================

[kim]

These journalists really are just sorcerer's apprentices. They really don't have any idea of the power and majesty of truth.
============================================

[kim]

Since when can a prosecutor agree to limit a juror's questions?
==========================================

[Cecil Turner]

Apparently she's fairly consistent:

“We had asked the special counsel over a year ago would he narrow his investigation to the source of his interest, the subject of interest; he wouldn’t do it then,” said Miller.

[kim]

Anybody indicted by Fitz is not going to have his curiosity limited except perhaps about the mosque thing.
===========================================

[kim]

Deus ex Machina: The case for no prosecution. I tried but can't get the evidence.

That is not my measure of Fitz.
===============================

[kim]

Since she's being so consistent, I wonder if she told him a year ago what she didn't want to talk about.
===================================================

[kim]

Judge: Why, Prosecutor, did you bring this action when your witness now says these things?

Fitz: Well, er, uh...she wouldn't tell me, then.

Judge: You fill in the blankety-blanks.
============================================

[TM]

Well, we have two strands running on Powerline.

First, here is his "more likely" theory, from the Weekly Standard:

...the most plausible explanation of Miller's conduct is that she went to jail because she feared that if she agreed to testify before Fitzgerald's grand jury, she could be asked about the FBI leak [in the Islamic charities case]

That theory strikes me as absurd, since it assumes Fitzgerald would (a) ignore DoJ guideliens on focused questioning of reporters, and (b) mock Judge Sweet of NY, who had jurisdiction of the Islamic charities case, and was ruling on Miller's obligation to testify and turn over notes.

The Islamic charities theory is what I intend to smite if I get ten minutes to actually post something.

As to the idea that Miller had other sources, I think we all agree she almost certainly did. The issue is, can Fitzgerald ask her about them within DoJ guidelines, and why can't he simply hand her a second subpoena?

A possible answer - suppose Miller said to Libby something like, "I heard from the CIA that Wilson's wife put him on that trip".

Now, clearly that fragment is covered by DoJ guidelines, since it is a direct exchange between her and Libby.

But can Fitzgerald stay within guidelines and ask "OK, who was the CIA source, or are you simply disguising Karl Rove?"

Ahh! Who knows? But I can see why she would want assurance on that point.

What I don't know is why we believe that Fitzgerald was more flexible now than a year ago, other than Abramas saying so (I refer now to this PowerPost).

As it happens, at least one of the questions I raised was answered definitively yesterday by Miller's former lawyer, Floyd Abrams, on CNN's Reliable Sources program. Howard Kurtz of the Washington Post, a journalist for whom we have considerable respect, pressed Abrams about Miller's claim that it was Libby's fault that she spent three months in jail. Abrams pretty quickly coughed up the real story:

KURTZ: I talked to people at the "New York Times" who are angry and confused about this. They say, understanding -- look, many journalists have used confidential sources. Most of us have not gone to jail. They say you could have had something approaching the same deal before she went to jail. You and Judy Miller took an absolutist position -- we cannot possibly betray the source -- by going to jail and what happens at the end? She takes the waiver and testifies before the grand jury.

ABRAMS: We couldn't have had the same deal. Indeed, in one respect I tried to get a deal a year ago. I spoke to Mr. Fitzgerald, the prosecutor, and he did not agree at that time to something that he later did agree to, which was to limit the scope of the questions he would ask, so as to assure that the only source he would effectively be asking about was Mr. Libby. She has other sources and was very concerned about the possibility of having to reveal those sources, or going back to jail because of them.

So there you have it. Abrams, who is a very reputable guy, told the truth: as has long been rumored, Judith Miller was told about Valerie Plame's employment with the CIA by several sources.

There you have it!

Of course, Abrams is paid to spin for Judy, was hooted at for botching her case, and eventually was moved aside in favor of Bennet. So maybe he is spinning here, rather than delivering God's truth.

Or maybe he is being totally candid in blaming all this on Fitzgerald's earlier inflexibility. Uh huh.

[TM]

Judy speaks, and tells the same story:

The journalist said her lawyers were unable to get Fitzgerald to agree long ago to limit the scope of his planned questioning of her conversations with her source.

“We had asked the special counsel over a year ago would he narrow his investigation to the source of his interest, the subject of interest; he wouldn’t do it then,” said Miller.

And why does this come out now? She could have said on the courthouse steps last July that Fitzgerald was refusing to agree to abide by clear DoJ regs; instead she blamed the lack of a waiver.

Did she think that public sympathy would side with the rule-breaking, over-reaching prosecutor?

And upon her release she blamed the lack of a waiver until we all laughed at her, and now its Fitzgerald's fault.

[kim]

I think he's kind of amused to assume the blame.
================================================

[Jeff]

As to the idea that Miller had other sources, I think we all agree she almost certainly did. The issue is, can Fitzgerald ask her about them within DoJ guidelines, and why can't he simply hand her a second subpoena?

But the question is, sources on what? Remember, the subpoena covered conversations with Libby having to do with Plame and more generally Iraqi efforts to acquire uranium. It's pretty clear that Fitzgerald agreed to scrap that second part (and remember that Miller got to redact everything from her notes of the conversation with Libby not having to do with Plame). Miller also now can't be asked about other sources on uranium and WMD where Plame is not involved, whereas that was a possibility before (even if it required a second subpoena). The Powerline guy simply assumes that Abrams is talking about other sources on Plame, but that's not at all clear. (The Powerguy who used to declare his taste for anal sex with his nickname is clearly eager to lay out in advance an outraged-right-wing defense in case Libby or someone else gets indicted: Fitzgerald fell down on the job, and is probably in cahoots with the Wilsons. You read it here first.) I find it almost unimaginable that Fitzgerald would agree to only ask Miller about Libby, so that even if Miller says, "Well, you should get a load of my notes from my conversations with that other guy who told me all about Plame!" he can't go there, even with another subpoena. And yet Miller seems obviously confident that she's not going to get that second subpoena. It strikes me that there is another plausible scenario, with two variations: The scenario is that the deal struck had to do with subject matter -- limited to Plame -- and not with conversation-partner per se. Recall that this is exactly how Bennett described the deal in TIME:

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.

The two variations: 1)Miller only talked to Libby about Plame, so that in limiting the subject matter, Fitzgerald was thereby limiting who he asked about. Note that this fits perfectly with what Abrams says, in the passage beloved of Powerman, when he notes that Fitzgerald agreed

to limit the scope of the questions he would ask, so as to assure that the only source he would effectively be asking about was Mr. Libby.

Don't want to make too much of one word, but to me that "effectively" might mean that to limit the scope was in effect to limit who he'd be asking about, even though the latter limitation was not an explicit part of the deal between Miller and Fitzgerald. (But see below for a different interpretation of that one word.)

2)Perhaps less plausibly, Miller talked to more than Libby about Plame, and simply agreed to answer Fitzgerald's questions about them as well, either because she did not consider them sources or because they were not confidential sources (ever or any longer). On this interpretation, Abrams' "effectively" covers (and glosses over) this fact; "effectively" here is, effectively, synonymous with "roughly". Fitzgerald will be asking about other people, just not other sources, or not other sources like Libby, i.e. confidential or whatever. In this case, what Fitzgerald gets out of the deal is he gets to hear everything Miller knows about Plame without potentially having to go back for another subpoena. DoJ guidelines addressed!

In any case, what is very clear is that Powerguy has jumped to conclusions in his interpretation of what Abrams says, even if he is not spinning -- though of course it could turn out that he's got the right interpretation.

[TM]

All that aside, we are being asked to believe that Fitzgerald went for this deal now, but wouldn't go for it a year ago.

The timeline, from the Sun, is that:

(1) Fitzgerald wrote to Libby/Tate saying Libby's position on a waiver was the obstacle;

(2) Libby and Miller work out a waiver;

(3) Fitz works a deal on limited testimony;

(4) Judy walks.

Now, if (1) and (2) were not the problem, shouldn't Fitz have known a long time ago that Judy was in jail because of his inflexibility?

I am not saying he should have announced that in a press conference, but... why did he write to Libby - just for show? When did he become so PR conscious, and why did he want to cover his rear area against a charge of inflexibility that no one was making?

Now, maybe Miller had problems with both the waiver and Fitzgerald, and chose to go to jail and blame the non-waiver in July even though she knew the truth.

Here is the Times on the day she was jailed - hard to read her statements as "Fitzgerald is refusing to limit his questioning to just one source".

And Fitzgerald was very flexible with Russert, who did not have to reveal what his source told him, and with Pincus, who did not have to identify his source (who had already testified - Pincus gave a time, and Fitzgerald made the match).

[Jeff]

All that aside? That was hard work! Not trying to defend Miller, but she did say something consistent with what she's saying now way back, in an interview with Terry Gross, I think, and/or someone on CNN, basically saying she didn't want Fitzgerald pulling a Matt Cooper on her. We also don't know that Fitzgerald was after Miller for the same reason as he was after Russert, Pincus and/or Cooper. As for why he might have changed his mind, I have no idea, but maybe something else that happened actually obviated the need for talking to Miller about the full scope of what he was initially interested in. Maybe he scaled back the case to just Plame and away from other classified info regarding Nigerien uranium.