The Obligatory Open Plame Thread

Here we go, but let me clip in this cryptic quick and dirty summary of the Judy Miller problem, from the last thread.  For background, here is Miller 1, 2, 3, from Marcy Wheeler.

Miller is being asked by the defense about other sources for Wilson and Plame news and claims she does not remember them.  The defense wants to argue that:

1.  IF she honestly to god has forgotten, then how credible is her memory of the Libby conversations?

2. IF she actually remembers but has claimed bad memory because she doesn't want to reveal sources, then Libby is losing a chance to confront a key witness - her sources might include Powell, Armitage, Wilson, Rove... who knows, except maybe Judy?

3.  IF her memory improves with the use of her notebooks, then let her go home, look in her shopping bags, find the relevant notebooks, and answer the questions.

SO - Judge Walton wants to avoid Judy staging a First Amendment meltdown; he also wants to avoid having Libby's people win an easy appeal.

And his choices seem to be:

1.  Disallow the question - Libby will squawk;

2. Allow the question, threaten her with contempt - Fitzgerald will squawk, because he sees this freight train coming - she will insist her memory has failed, and advise him to put an egg in his shoe and beat it.  Or, she will refuse to answer and go to jail again, probably causing a mistrial.

3. Some middle ground - Judge Walton will try to rule that Miller can assure the court she remembers sources (thereby assuring us of her memory), but won't have to name them. This has the benefit of assuring Walton a permanent gig on Comedy Central - c'mon, how is the Libby team supposed to refute that sort of evidence?  Maybe the Amazing Karnak can come on for the defense.

And last question - what is surprising about this?  It was obvious that the defense would ask about Miler's other sources, and predictable that she would refuse to offer names.  So why did Fitzgerald and Walton let it get this far, and why is Walton going home tonight to do the research that could have been done months ago?

I smell mistrial.  I also think The Decider (aka, the 13th Juror, aka, George Bush) has seen enough, and Libby's pardon is now gift-wrapped.

UPDATE -  WITH TIMES ON MY SIDE:    In an unlikely alliance with Neil Lewis (buttressed by Scott Shane), I find the Times is with me regarding a mistrial:

The day ended with an extraordinary argument by lawyers for both sides, as well as a lawyer for Ms. Miller, over whether Mr. Jeffress could ask her if she had other sources she spoke to about Ms. Wilson. The question, which was left unresolved by Judge Reggie M. Walton until Wednesday, threatened to derail the trial over the very constitutional issue that saw Ms. Miller go to jail in 2005.

Judge Walton seemed disinclined to allow questions about Ms. Miller’s other sources. “I appreciate that there is an interest the media has in not having questions asked that aren’t germane to this case,” he said. But if he does allow them, and she refuses to answer, she could be held in contempt once again and a mistrial could result.

I imagine we will get a ruling from Walton this morning.  My Bold Prediction - he will rule the question irrelevant and opt for the slow death of reversible error (if we ever get to the point where the defense is appealing the verdict) rather than the quick death of being forced to jail a star prosecution witness for contempt.

However, the defense should still be able to score points with such a ruling.  Their presentation to the jury can be that Ms. Miller originally had no memory of the June 23 conversation; after being asked by Fitzgerald to check her notes for Libby-related conversations, she remembered his demeanor and that he was the first to mention Wilson's wife to her.  Well then, the defense can ask, what else might Judy Miller remember if someone asked her to check her notebooks for all Plame-related conversations?  The prosecutor has not asked her to do so, and the judge won't order her to do so, which means that "the truth" will not be uncovered and an innocent man may go to jail as a result.  But for all we know, prior to June 23 Ms. Miller may have had a chat with Marc Grossman of the State Dept. in which he was the first to mention Wilson's wife to her - we don't know, and no one is making the effort to find out.  This also ties in nicely to the defense theme of a White House conspiracy to get Libby - who is Judy protecting (cue "Twilight Zone" music...).

As to substance - of course Miller's memory is relevant.  And how can it be that she has checked her notes and is sure that Libby made the first mention of Wilson's wife, yet she can't remember the names of the other parties to the conversations she (presumably) checked?  Either she checked all of her notes, or she didn't.  And since Fitzgerald wasn't asking about all of her notes, it is easy to believe that she hasn't checked them all; in fact, I presume her attorney would have advised her to not check them, then plead ignorance if the topic of other sources was broached, just as is happening here.

 

Comments

[cathyf]

Question: Miller just testified that she had the requisite knowledge, on June 23rd, to be the journalist who Libby heard telling about Plame "as if for the first time." This was part of the prosecution's case. At the end of the prosecution's case, the defense traditionally moves that the judge make a ruling -- if the defendent is not guilty even if everything in the prosecution's case is true, then the judge must find right then and there that the defendent is not guilty, right? (What is this motion called?)

So is it significant that Judy testified for the prosecution that she had the requisite knowledge to be the journalist on the other side of the "as if for the first time" conversation? Is this an appealable decision -- if the judge rules against the defense, and the jury convicts, can the appeals court rule that the case should never have gone past the point where the prosecution rendered it logically impossible to prove their own case beyond a reasonable doubt?

[MJW]

As an addendum to my previous comment, here are examples of the type of accusatory interrogation Libby was subjected to in the Grand Jury. The first two questions substantially misrepresented what Libby was saying.

And you are telling us under oath that from July 6th to July 14th you never discussed with Vice-President Cheney whether Mr. Wilson's wife worked at the CIA?

As you sit here today, you are telling us that his concerns about Ambassador Wilson, his concerns that he's working pro bono, that he's an ambassador sent to answer a single question, his concerns that his wife may have sent him on a junket, would not have occurred between July 6th and July 12th when you were focusing on responding to the Wilson column but instead would have occurred much later?

And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson's wife worked at the CIA but your source was a reporter rather than the Vice-President?

[JM Hanes]

TM:

Pls. allow me to do my small bit for the cause by placing a couple of weeks' worth of Open Plame Thread titles at your disposal:

Wide Open Plame Thread
Open and Shut Plame Thread
WYSIWYG Open Plame Thread
Classic Open Plame Thread
New Improved Open Plame Thread
It's the Open Plame Thread, Stupid
Open Plame Thread for Dummies
Open_Plame_Thread.alt
The Thread Formerly Known as Open Plame
Just an Old Fashioned Open Plame Thread
Open Secret Plame Thread
Flaming Plame Thread
WTF? Open Plame Thread
Open Plame Thread Does Dallas
Best Damn Open Plame Thread Ever
That's More than 14 Open Plame Threads
So You Can Count, Big Whup! Open Plame Thread
Same to You Fella Open Plame Thread
Last Damn Open Plame Thread Ever
In Your Dreams! Yet Another Open Plame Thread!
So I lied. Open Plame Thread

There are plenty more where those came from, of course, so don't hesitate to ask for further assistance, whether or not you need it.

[Yet Another Tom]

Voice of Reason: Do I have this right? In your scenario, a Libby pardon would allow Fitzgerald to pursue bigger prey like Rove and Cheney using the new grand jury testimony of a now unjeopardized Libby? Don't you think it fairly unlikely that Fitzgerald would be able to get very far in an investigation, let alone a subsequent prosecution, where his key fact witness is a convicted perjurer? What's more, a man convicted for giving false testimony regarding the very same events which would have to be the basis for any investigation or prosecution of the bigger fish.

A prosecutor can try to turn one member of a conspiracy against the others by threatening that guy with perjury and obstruction charges, but that's as far as it goes. If the prosecutor actually follows through with the threat and gets the guy convicted of perjury then he has destroyed the guy's utility as a witness in any subsequent prosecution of the other conspirators. He can't have it both ways.

[pete]

Hey Losers

Start any illegal wars lately? Your fascist neoconized repuglican party is falling apart. Good rindance. Oh man this is fun to watch.

[Patton]

Perhaps 'CP' in Millers notes is really Colin Powell.

Maybe not the person, she may have been referring to a source at the State Department.

[Ranger]

Hey Losers

Start any illegal wars lately? Your fascist neoconized repuglican party is falling apart. Good rindance. Oh man this is fun to watch.

Posted by: pete | January 31, 2007 at 12:03 AM

Well, at least we have established beyond a resonable doubt that pster Martin is also poster pete.

[MayBee]

This is interesting, via Talk Left, Waas had reported that Judy found her June notes because Fitzgerald showed her the Secret Service Logs:

Miller testified that she still could not recall the June meeting with Libby, in which they discussed a controversial CIA-sponsored mission to Africa by former Ambassador Joe Wilson, or the fact that his wife, Valerie Plame, worked for the CIA.

When a prosecutor presented Miller with copies of the White House-complex visitation logs, she said such a meeting was possible.

http://www.talkleft.com/story/2005/10/20/689/72897>Here.

Was Waas just making stuff up, or did that get glossed over today?

[Ranger]

This is interesting, via Talk Left, Waas had reported that Judy found her June notes because Fitzgerald showed her the Secret Service Logs:

Posted by: MayBee | January 31, 2007 at 01:14 AM

Hmmm. If that is true, then how can she clame an independent memory of the meeting if she previously forgot completely about it?

[MayBee]

I have to say that seeing Judy's 'note driven memory' in action for the prosecution, I understand why Fitzgerald didn't want a memory expert anywhere near the jury.

[Patton]

I don't even think this is a close call. Millers memory is at issue. She now claims to remeber he discussion with Libby when before she testified she did not.

All Wells is asking is do you remeber anyone else. She says she talked to many people, if she can't remeber one other one then it goes directly to her credibility as to remembering anything Libby said.

[MayBee]

You know, this could get interesting, especially if Tate does testify.

According to Waas (if he's right), Fitzgerald sent Libby's lawyer, Tate, a letter while Judy was cloistered away in prison. Fitz basically said, If you can't do more to make her testify then I'll assume you don't want her to testify. We're looking at you, buddy.

BUT...getting Judy to testify actually took concessions on Fitzgerald's part. He grew suspicious of Libby (and put pressure on his lawyers) partially because Judy wouldn't testify-- but Fitzgerald's conditions were one of the reasons she wouldn't testify.

And Tate is apparently ready to talk about that in court.

[Ranger]

Ok, I am beginning to wonder if this is Judge Walton setting up a high stakes game of legal chicken:

Walton I don't have a problem if you ask her regarding sources on Wilson and Wilson's wife. I think that's going to be my ruling. It'd have to be impeached on an issue that's relevant to this litigation. I understand from Bennett that that would require her to reveal sources she is unwilling to reveal.

As far as I can tell, Fitz is trying to get the court to accept Miller's counsel answering the question for her. Wells is saying that is insufficient, he has a right to make her answer the question in front of the jury. Walton is saying that Wells is right. This sets up the game of chicken.

For Judy, either refuse to answer and be in contempt of court, or say under oath that she doesn't remember (which is simply not a credible answer).

Fitz put Judy on the stand presumably knowing what her testemony would be.

If he knew she was going to refuse to answer this quesiton he put a witness on the stand that he knew was unwilling to testify to key elements of the case so he could get his side before the jurors and deny Libby the chance to confront his accusor.

If she claims that she does not remember, then she is engaging in the same pattern of conduct under oath that he is prosecuting Libby for. Either she lied about remembering her converstation with Libby in June or she is about to lie about not remembering other conversations in the same time frame. In a sense he has suborned the same kinds of acts he is prosecuting.

So, total speculation about what may happen, but:

In the morning, Fitz tries to get himself out of this by asking to withdraw the witness and drop the counts relating to her from the trial. If he does, Walton askes if he can guarantee the court that he will not face the same problems with his other two star witnesses. Fitz obviously can't, so Walton could declare a mistrial or declare that since without those witnesses Fitz can't make his case and dimisses all charges.

It probably won't happen because I don't think Fitz has any problem denying the defendant a fair trial if it gets him a win, but you never know.

[P]

Miller has not asserted any right to not answer. If this were any other witness (Non-journalist) Walton wouldn't even be considering not making them answer the question.

[cboldt]

-- According to Waas (if he's right), Fitzgerald sent Libby's lawyer, Tate, a letter while Judy was cloistered away in prison. --

Tidbits From The Libby Filings Oct 31, 2006
(Fitzgerald' letter to Libby's lawyer, Tate, is Exhibit F to the first filing cited by Maguire)

Text of letters between lawyers

Links to the pleadings and text of the letter exhibits, including the letter Fitzgerald sent Libby's lawyer, Tate, while Judy was cloistered away in prison.

[MayBee]

Thanks, cboldt--
In part:

after Judge Hogan noted that Ms. Miller held the proverbial key to her jail call in her pocket, I stated that two people held the key to her jail cell: Ms. Miller and her source, who might proffer a waiver to Ms. Miller in the manner akin to the waiver Mr. Cooper received. In the three months that have passed, I have assumed that Ms. Miller chose to remain in contempt either in spite of her awareness of Mr. Libby's waiver or because Mr. Libby has decided that encouraging Ms. Miller to testify to the grand jury was not in his best interest. Indeed, there was press reporting to the same effect:

Sources close to the investigation, and private attorneys representing clients embroiled in the federal probe, said that Libby's failure to produce a personal waiver may have played a significant rile in Miller's decision not to testify about her conversations with Libby, including the one on July 8, 2003.

(American Prospect, August 8, 2005)

At about the same time, Rep. John Conyers wrote (and publicly released) a letter cosigned by several Congressmen asserting: "[Mr. Libby's] failure to grant such a waiver to Ms. Miller has apparently led her to refuse to testify ... and, in turn, led to her recent incarceration for civil contempt. ...

After this, Fitzgerald goes on to say that upon reviewing Cooper's response to Rove, perhaps there is just a misunderstanding.

BUT it still seems to me that if PART of what got Judy out of the cloisters is an agreement by Fitz to limit questioning, or at the very least that Judy understood that to be the case....isn't that a little questionable?
I mean, John Conyers was writing letters about Libby releasing Judy, and Judy was waiting to hear about someone else.

That seems a bit I don't know...iffy...to me.

[Ranger]

I mean, John Conyers was writing letters about Libby releasing Judy, and Judy was waiting to hear about someone else.

That seems a bit I don't know...iffy...to me.

Posted by: MayBee | January 31, 2007 at 04:29 AM

Well, she said as much in her NYT story after she got out. She only agreed to testify once the subject was limited to conversations with Libby because she had other sources to protect.

[cboldt]

-- it still seems to me that if PART of what got Judy out of the cloisters is an agreement by Fitz to limit questioning, or at the very least that Judy understood that to be the case....isn't that a little questionable? --

Of course it is questionable. See questions galore, including some who to this day believe Judy was protecting sources in an entirely different case, the Holy Land/Global Relief Foundation leak case where Miller was thought to have evidence of which government agent leaked to the press, the plan of an impending raid.

Others believe that Fitzgerald was planning to question Miller beyond the four corners of what was stated in the subpoena to her, in the Plame leak case.

I think she (Miller) is just being anal about protecting sources.

[cboldt]

Oh. I think it is false that her agreement was to testify only to matters Libby. That meme isn't supported by the record.

[MayBee]

I don't mean iffy unbelievable (this is why I need to learn to use real words).
I mean, I think it put Libby in an unfortunate public position. And I think Fitzgerald allowed it to/caused it to happen. He allowed and indulged in speculation that Libby must have something to hide because he wouldn't give Judy the keys to her prison cell. But Fitzgerald actually held one of those keys.

[Ranger]

MayBee,

He did more than that. He specificly perpetuated that misunderstanding in a court filing just a few weeks ago, essentially misleading the court my implying that Miller stayed in jail because of Libby's refusal to grant a second, specific waiver to her. He also quoted her counsel at the time out of context to support that claim. He failed to mention any actions on his part to negotiate to get her testemony.

[MayBee]

Oh. I think it is false that her agreement was to testify only to matters Libby. That meme isn't supported by the record.

We'll have to wait and see what Libby's lawyers say they discussed with Judy' lawyers about what they thought they were agreeing to. Unless Fitz wants to tell us. Or Judy.
And if her agreement wasn't for only matters Libby, why the assumption beforehand that Libby held the key to her release?

I think she (Miller) is just being anal about protecting sources.

She had Wilson's phone number, which Libby didn't give her.
She has said she spoke with others about Wilson/Plame. "Just being anal" doesn't really cover it.

[MayBee]

yeah, Ranger, I think he has a lot on the line with this. He wouldn't want this to come in because it takes away that line of argument.
It's iffy!
yes, cboldt, I could be wrong about that.

[cboldt]

-- Fitzgerald actually held one of those keys --

The better argument is that it's all Fitzgerald's fault. If he hadn't sought Miller's testimony, she'd not have been jailed, and not have been a witness against Libby.

Fitz was the jailer.

[clarice]

It is perfectly clear on the public record that not having to testify about other sources was part of her get out of jail deal.

[MayBee]

Heh. Cbait comes into the thread.

[MayBee]

Holding someone in prison for refusal to testify can be completely legitimate.
Pretending it is up to one third party to get that person out of jail while you know you are negotiating with her about other parties isn't legitimate.
Besides, the jail/key thing is Fitzgerald's not mine.

[cboldt]

-- And if her agreement wasn't for only matters Libby, why the assumption beforehand that Libby held the key to her release? --

This "key" or "keys" metaphor creates a number of false impressions and pointless arguments. The quality of Libby's general waiver was (she says) part of the reason she would not honor the subpoena. Beyond that, her demand was that the prosecutor not present questions outside what was in the subpoena. She didn't get an agreement to narrow the subpoena, she got an agreement to stay within its confines.

[cboldt]

-- He [Fitzgerald] failed to mention any actions on his [Libby's] part to negotiate to get her [Miller's] testemony. --

Did I stick in the right names?

[cboldt]

-- Heh. Cbait comes into the thread. --

Start of list of reporters who were not subpoenaed. Gregory, Dickerson (even after Fleischer named them to investigators), Woodward .... none of those people were exposed to the risk of contempt of court.

I'm recalling Byron York's comment on C-Span, where he opined that the big deal with this case is the impact it has on reporter/source confidentiality.

"Cbait" indeed. No longer announcing intentions to "go mute" or "twit list" certain handles, "Just doing it."

[Pofarmer]

I understand why Fitzgerald didn't want a memory expert anywhere near the jury

Uh, huh. How did Fitz pull that one off? I can't imagine not having a memory expert in a trial that depends entirely on basically 4 peoples reccollection of events. Especially when one(Cooper) is already said to be impeached based on his reccollections vs his notes at the time.

[Ranger]

-- He [Fitzgerald] failed to mention any actions on his [Libby's] part to negotiate to get her [Miller's] testemony. --

Did I stick in the right names?

Posted by: cboldt | January 31, 2007 at 05:06 AM

No, sorry, sloppy use of pronouns.

Should read:

-- He [Fitzgerald] failed to mention any actions on his own [Fitzgerald's] part to negotiate to get her [Miller's] testemony. --

[Ranger]

Sloppy use of pronouns on my part that is.

[lurker]

Anyone read Michael Sniffen's article about Judy Miller contradicting Libby's story?

[MayBee]

"Cbait" indeed. No longer announcing intentions to "go mute" or "twit list" certain handles, "Just doing it."
????
Did I read your post wrong? I saw sarcasm. No?

[MayBee]

She didn't get an agreement to narrow the subpoena, she got an agreement to stay within its confines.

In the end, the general waiver that had worked for everyone else worked for Judy.
And the agreement that Judy only testify to those who provided a waiver was met.

What's Conyers doing writing a letter about Libby's obstinence?
What's Fitzgerald doing quoting it?
The jury should not be left with the impression that Libby's fear of prosecution left Judy Miller in jail.

[cboldt]

-- Pretending it is up to one third party to get that person out of jail while you know you are negotiating with her about other parties isn't legitimate. --

You say that at the time Miller was in jail, Fitzgerald was negotiating with her to obtain testimony about other parties. Can be more specific about the "other parties" aspect of that?

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."

That's from the Feb 15, 2005 Opinion of the Circuit Court of Appeals, and a little more detail is in the government's brief ...

On August 12 and August 20, 2004, grand jury subpoenas were issued to reporter Judith Miller and her employer, the New York Times, seeking documents and testimony related to "conversations between Miller and a specified government official occurring between on or about July 6, 2003 and on or about July 13, 2003, concerning Valerie Plame Wilson (whether referred to by name or by description) or concerning Iraqi efforts to obtain uranium."

Where is the evidence that Fitzgerald was seeking more than that, in later negotiations?

[cboldt]

-- In the end, the general waiver that had worked for everyone else worked for Judy. --

No it didn't. She sought and got more, as did Cooper.

-- What's Conyers doing writing a letter about Libby's obstinence? --

It sure did turn into a political event -- probably was a political event from the start, with the judicial branch being swept in on account of gutless politicians.

-- The jury should not be left with the impression that Libby's fear of prosecution left Judy Miller in jail. --

Libby's goal here is to convince the jury that he expected the reporters to testify forthrightly, and that Miller kept herself in jail for her own selfish motives. Libby wants the jury to believe that Miller has no damaging testimony, and that he always knew and expected she would tell all to investigators and the grand jury.

My mental picture of this aspect of the case is to consider Libby's expectation of privacy, in that "privacy" gives one opportunity to lie and not be caught.

[lurker]

Boy, did Arlen make a stupid comment yesterday?

Byron York wrote about Miller's memory problems. Looks like Jeffress is not finished with Miller. Will Walton agree that Miller must reveal her other sources? Miller's memory problems may discredit her revealing of sources as well. But that's good for Libby that he's just like the rest of us...sinners, liars, and all.

[Ranger]

Well, I think this is a clue:

Published in the Sunday, October 16, 2005 New York Times

A Personal Account

My Four Hours Testifying in the Federal Grand Jury Room

by Judith Miller

Equally central to my decision was Mr. Fitzgerald, the prosecutor. He had declined to confine his questioning to the subject of Mr. Libby.

She does present is as going beyond just information about Wilson and his wife:

This meant I would have been unable to protect other confidential sources who had provided information - unrelated to Mr. Wilson or his wife - for articles published in The Times. Last month, Mr. Fitzgerald agreed to limit his questioning.

But the information from the dsicussion with Tate indicates that she was concerned about other sources of info about Wilson and his wife too. And if the (non)transcript from yesterday is accurate, then Judy's counsel has indicated to the judge that she is going to refuse to answer questions about other sources of information on Wilson and his wife.

[MayBee]

You say that at the time Miller was in jail, Fitzgerald was negotiating with her to obtain testimony about other parties. Can be more specific about the "other parties" aspect of that?

No, I say Judy was trying to ensure that he wouldn't try to obtain testimony about other parties. And I can't be more specific, because I don't know who they are. That is, as I understand, it what the defense would like to ask about in court today.

Where is the evidence that Fitzgerald was seeking more than that, in later negotiations?
As far as I know, there is no more evidence that Fitzgerald was seeking more than that, than there is that Libby didn't really mean the waiver he'd signed.

[cboldt]

-- trial that depends entirely on basically 4 peoples reccollection of events --

Not exactly. What Fitz is doing now is painting a picture as to whether or not Libby knew Mrs. Wilson worked at the CIA. The reporters are part of that half of the case. The "fireworks" will come in the second half, and won't depend much on "he said she said" as between Libby and reporters.

[Ranger]

Last month, Mr. Fitzgerald agreed to limit his questioning.

I would say that indicates a back and forth regarding her testemony. It also indicates that what Fitz said was critical to her decision to talk, not just what Libby said. She says as much in the story:

Without both agreements, I would not have testified and would still be in jail.

So, for Firz to say that it was all about Libby giving her a waiver is not accurate, at least not according to her.

[Sue]

Can her article be introduced to impeach her testimony if she says otherwise?

[Other Tom]

As I recall, Judy said in her published account (truthfully or not) that she was concerned that Fitz would question her about sources unrelated to this case.

Voice, you're in way over your head here, son.

[cboldt]

-- I can't be more specific, because I don't know who they are. --

I was wondering if you thought she was insinuating that Fitz was trying to get Holy Land information (those "other parties"), or if the information sought was limited to the Plame leak investigation. If the later, then what's the line of inquiry that exposes Miller's other sources?

[lurker]

Funny...

It's still all about the Plame leak...the BIG case.

Fitz didn't want a BIG case but is questioning a BIG case.

What exactly is he trying to prove?

So far he's failed to prove Libby lied, perjured, and obstructed justice.

Think the "fireworks" will fizzle to nothing.

What is the jury thinking based on their questions?

[Other Tom]

My post at 0627 crossed with Ranger's, which quoted the account I was trying to recall.

[Ranger]

Well, if it was about protecting "confidential sources who had provided information - unrelated to Mr. Wilson or his wife - for articles published in The Times." as she claims, then why did she hold out for Fitz to "confine his questioning to the subject of Mr. Libby." and not the subject of Wilson and his wife? She is playing cute here, claiming that she was hold out to protect sources unrelated to Wilson and his wife, but in fact she held out to talk only about Libby.

[MayBee]

I was wondering if you thought she was insinuating that Fitz was trying to get Holy Land information (those "other parties"), or if the information sought was limited to the Plame leak investigation. If the later, then what's the line of inquiry that exposes Miller's other sources?

I have no idea what she was insinuating, nor do I believe her only fear was protecting Holy Land information. She has stated, in this case, that she talked to other sources about Wilson and Plame. She had Wilson's phone number. Her recollection of events has been spotty.
The line of enquiry that exposes Miller's other sources is asking her if she had other sources. Fitzgerald asked in the Grand Jury and she said she couldn't remember. The defense is dissatisfied with that answer.
Is there a fancier way to do it?

[MayBee]

Yes Ranger, exactly.

[Rick Ballard]

The day is starting well. Looks like another juror is jumping off the train.

[cboldt]

-- why did she hold out for Fitz to "confine his questioning to the subject of Mr. Libby." --

I'm not convinced it's a "hold out" against Fitz's request. It may be a hold out of her own fabrication. The indictment doesn't seem to ask about "other sources," at any rate.

Fitz: I have a subpoena about conversations you had with Libby.

Miller: Those conversations are privileged.

Fitz: You're in jail until you comply with the subpoena.

Miller: I have other sources too! But I refuse to talk to you about them.

Fitz: I asked you about Libby.

Miller: I won't talk about Libby unless I have a waiver from him that isn't colorable as coerced, and you promise not to ask me about the other sources that I told you about.

Just a guess on my part. She has selfish motives to create and blow up the "other sources" aspect, because that feeds the issue of reporter privilege in general.

The context at trial is very different from the subpoena context. Libby's right to testimony is different from Fitz's power to compel testimony.

[Sue]

They can use that to impeach her, no?

[Ranger]

The context at trial is very different from the subpoena context. Libby's right to testimony is different from Fitz's power to compel testimony.

Posted by: cboldt | January 31, 2007 at 06:48 AM

True, and Judge Walton appears to have said yesterday that he agreed with Fitz that questions about the op-ed are out, but he also appears to have agreed with Wells that questions about sources of information about Wilson and his wife are in. He also said he believes that she won't answer questions about other soureces about Wilson and his wife, even after he tells her she has to.

[Cecil Turner]

What is the jury thinking based on their questions?

I don't think you can tell, especially since they only reflect subjects jurors feel weren't adequately explored by counsel. Also, questioning personalities ("spring butt" types) are generally not, IME, good bellwethers. Based on the various reactions to the trial, it appears most interpret witness testimony to back up predilections (the "news as affirmation" effect). One would expect the same thing in the jury box. And though voir dire appears to've weeded the most strident BDS sufferers, sampling theory suggests it's not populated with folks sympathetic to I. Lewis Libby. But there's likely at least one. At that point, it depends on strength of personality. A betting man would probably go with "hung jury" unless the evidence was overwhelming one way or another . . . and I don't think it is.

JMH: ROFL!

So if Fitzgerald believes Libby withheld information to protect Cheney or Rove or anyone else, he can force that testimony . . .

Ah, the vampiric grand conspiracy meme (unkillable by any amount of contrary evidence, apparently). I rather doubt the President will pardon Libby. But if he does, I can't think of any possible reason not to simultaneously fire Fitz. And the idea that grilling Libby for another couple hours would be fruitful borders on clinical.

[Pofarmer]

MayBee,

He did more than that. He specificly perpetuated that misunderstanding in a court filing just a few weeks ago, essentially misleading the court my implying that Miller stayed in jail because of Libby's refusal to grant a second, specific waiver to her. He also quoted her counsel at the time out of context to support that claim. He failed to mention any actions on his part to negotiate to get her testemony.

That still doesn't make any sense to me. Why would these reporters think they needed specific waivers, when they had already received blanket waivers from administration officials?

It looks like more politics, to try to make it look like administration types weren't being forthright. Although, we now know who the non-forthright ones were, and at least one of them got immunity for the case.

[hit and run]

lurker:

Boy, did Arlen make a stupid comment yesterday?

Well, he seems to do that on days that end in 'y'.

[Pofarmer]

Start of list of reporters who were not subpoenaed. Gregory, Dickerson (even after Fleischer named them to investigators),

Makes it look like Fitz was only going after certain fish, no?

[Pofarmer]

Not exactly. What Fitz is doing now is painting a picture as to whether or not Libby knew Mrs. Wilson worked at the CIA.

Yes, but part of the defense is also that reporters knew at the same time or before Libby did. If "all the reporters knew" then it's hard to say who told what to whom. If that information was held within the administration, then Libby has more of a problem, it would seem to me.

[MayBee]

Rory was good on this part.
I can't wait for our clarice to take the wifi.

[boris]

My mental picture of this aspect of the case is to consider Libby's expectation of privacy, in that "privacy" gives one opportunity to lie and not be caught.

Another princess?

If Libby remembered a June 23 disclosure to Miller (even though she "didn't") then intent to lie would prudently include an explanation. Same for Ari.

If Libby forgot it then the "lie" might be FUBAR memory.

This case is clearly and obviously based on reconstructed memories, using props, notes, and landmark events. One witness changed the month of her "clear independent memory" based on when she saw Joe Wilson on TV.

Libby's landmark event for memory reconstruction is "surprise as if for the first time". So nothing before that is possible. Somewhere he got it wrong.

[Pofarmer]

I think, just for fun, the jury should be made to reconstruct some business dealings from a couple years ago over a period of about a month, and see how close they come to what the final contract states, without benefit of notes. That would be eye opening.

[boris]

If "all the reporters knew" then it's hard to say who told what to whom.

Somewhere between the 100th monkey and the particle in a box there's an uncertainty principle for information.

[hit and run]

Pofarmer:
I think, just for fun, the jury should be made to reconstruct some business dealings from a couple years ago over a period of about a month, and see how close they come to what the final contract states, without benefit of notes. That would be eye opening.

How about just ask them to reconstruct the jury instructions they received at the opening of the trial?

Or opening statements from both prosecution and defense?

[maryrose]

Miller should be made to answer the questions about her other sources and how she came to know Wilson's number.

[Appalled Moderate]

Interesting. Yesterday, Judy Miller came across as a memory free ditz. Today, her memory free state seems more voluntary than a natural state of affairs.

Neither is going to help her with the jury, who is going to sense they aren't getting the full trusth out of her, and are going to wonder how coerced her testimony is.

[danking70]

After all the prosecution witnesses we've seen and heard, is a memory expert even necessary?

[hit and run]

After all the prosecution witnesses we've seen and heard, is a memory expert even necessary?

In the world, or just this trial?

[maryrose]

AM:
Good point and I am sure Miller will make her appearance today a thing of drama and intrigue. She's a good actress but an unreliable witness. Reminds me of Clinton's gj appearance and defining the word "is".

[azaghal]

The day is starting well. Looks like another juror is jumping off the train.

Rick, what does that mean?

[Rick Ballard]

Azaghal,

Another juror was released this morning. They're down to two alternates. The trial isn't getting major media play and I think that a few of the jurors might have been mini-celebrity wannabees.

Given that Jan-Feb are the worst months of the year for getting sick two alternates may not be enough.

[cathyf]

Ok, I know I'm being repetitive here, but,

1) Miller admitted that she went into the June 23rd meeting knowing about Plame from sources other than Libby.

2) Since Miller is Fitzgerald's witness, Fitzgerald has now irrevocably admitted, with no proof whatsoever required by Team Libby, that Miller went into the June 23rd meeting knowing about Plame from sources other than Libby.

3) The perjury count where Fitzgerald alleges that Libby lied and he really told Miller about Plame on June 23rd just blew up.

4) Since Russert has testified that he never had the "as if for the first time" conversation with Libby at all, AND since Miller knew about Plame on June 23rd, she may have been the journalist whom Libby had the "as if for the first time" conversation with.

5) Therefore, it is impossible to prove beyond a reasonable doubt that the "as if for the first time" conversation which Libby testified to did not happen on June 23rd.

6) The Russert perjury and obstruction counts, as well as the entire Ari Fleisher testimony, just Emily Litella'd away.

7) The only counts left are the two Cooper counts.

8) Fitzgerald cannot impeach Miller's testimony that she entered the June 23rd meeting knowing about Plame because she is a prosecution witness.

9) All questions about how Miller acquired the Plame knowledge that Fitzgerald says that she possessed on June 23rd are irrelevant and moot.

Can somebody explain to me what is wrong with this argument?

[danking70]

cathyf,

you forgot to blame Darth Cheney.

[Carol Herman]

Leave it to Fitzgerald to HIDE EVIDENCE right out in the open!

Yes, Libby sent the "Aspen's are connected at their roots," letter to MILLER. IN JAIL. And, she still sat there, uncooperative. In other words? Libby sent the "waiver" BEFORE the 85 days were UP. And, Judith Miller sat. STILL REFUSING to leave jail. UNTIL FITZ LIMITED THE QUESTIONS HE WOULD ASK HER!

While her lawyer, Bennett, got the NY Times to shell out millions of dollars in legal fees. They're still there. Open wallet and all. "For Judy."

While I think when Libby wrote his letter he saw a benefit to the artistic flourish ... which is true. Ungerground, tree roots grow together, towards their source of water. INTERTWINING.

Just like a conspiracy. WHich was set against Rove. And, failed. And, set against taking out BUSH. Failed, too.

With the cryptic monkey wrench thrown into Fitzgerald's fantasy water works, by WOODWARD. How said OUT LOUD. He heard about Plame. He even told others. IN JUNE of 2003. But that's the "big secret."

It's the dirty stuff the donks did to sway public opinion, though; that was riding high in 2004. Costs and penalties? Go ask Dan Rather! He's gonna get other idiots joining him in the bad lands of career declines.

For what? A blonde whore on the CIA payroll? Obscene. But it goes with the Blue Gap Dress. And, whatever it was that Sandy Berg(l)er burgled.