So Who’s She Protecting?

New York Times reporter Judith Miller has finally been released from jail, after agreeing to testify to what everyone already knew, i.e., that she discussed Valerie Plame with Scooter Libby, Dick Cheney’s chief of staff. I wrote about this last night; like many others, I expressed puzzlement over why Miller has finally agreed to name Libby, when he gave her and other journalists permission to do so a year ago.
Several readers have written to point out that I had missed a key fact that was not disclosed in the article I linked to last night, but was in today’s article in the Washington Post:

After she received this “personal, voluntary waiver,” Miller said, her lawyer approached the special prosecutor in the leak investigation and received an assurance that her testimony would be narrowly limited to her communications with the source. She did not mention the source’s name in her brief appearance on the courthouse steps, but he has been identified previously as I. Lewis “Scooter” Libby…

Bingo. No one is crazy enough to sit in jail over a silly misunderstanding–she wanted a “personal” waiver, and Libby was happy to give it to her, in fact thought he had given it to her last year, but somehow they failed to communicate. 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.
It’s hard not to find the prosecutor’s action here disturbing. Who is the second source that Miller went to jail to protect? Why is the prosecutor willing to forgo information about the second source? If Plame’s own husband was telling journalists that his wife was a CIA employee, isn’t that highly relevant to whether someone in the administration should be criminally prosecuted for saying the same thing? Or, if Plame’s employment was so widely known that journalists were telling one another that she worked for the Agency, isn’t that likewise relevant to any prospective criminal prosecution?
Is Scooter Libby being set up? Let’s hope not.
PAUL adds: One thing seems clear in all of this — Miller’s lawyer Robert Bennett is way out of line as he makes the rounds of the talk shows suggesting that Scooter Libby should have called Judith Miller earlier to personally assure her that she had his permission to testify. For example, he told Wolf Blitzer:

Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.

I find it amazing that Bennett would say something this ridiculous. As CNN has reported, Libby’s lawyer (Joseph Tate) told Miller’s original lawyer (Floyd Abrams) a year ago that she could testify as to Libby’s conversation with Miller. And Libby himself testified twice before the grand jury about his conversation with Miller. The claim that Miller thought Libby’s waiver of confidentiality might have been coerced is absurd. As Bennett knows, these waivers are executed in writing with a lawyer present, and state that they are given freely and voluntarily. In the real world, a lawyer-to-lawyer conversation between Tate and Abrams in which the former represented that his client had executed a waiver would have left no doubt that an uncoerced waiver had been granted. But if there was any doubt, Miller had a year to resolve it before going to jail.
In any case, Libby had no reason to contact Miller’s attorney again. As Tate told CNN, Libby assumed that Miller was protecting another source, as she very likely was. (Another, more speculative, possibility is that Miller was trying to play the martyr, perhaps to restore her “street credibility” after coming under attack from liberals for her reporting on WMD in Iraq). Thus, absent any word from Miller’s lawyer, Libby had no reason to think that Miller was in jail because she was protecting him, nor is there any reason to think that now. But as soon as Libby got word that Miller was claiming she needed personal assurances, Libby provided them. This makes it all the more unconscionable for Bennett to suggest that Libby is to blame for Miller stay in jail. And it’s absurd to believe that, if all Miller wanted was another, more personalized assurance from Libby, she would not have had her lawyer obtain it sooner.
In this regard, it’s also odd that Miller remained in jail for more than ten days after Libby provided his most recent assurances. This is further evidence that the real problem for Miller was not the absence of Libby’s voice repeating what his lawyer had long ago said. As John suggests, it’s most likely that the real event that had to occur in order to spring Miller was the prosecutor’s decision not to target the source Miller actually was protecting.
UPDATE: A New York lawyer has another theory, which is plausible. It’s also light years beyond anything you’ll read on this topic in the newspapers tomorrow:

Re: your post this evening regarding Judith Miller. Her change of heart may have been prompted by the prosecutor’s agreement to refrain from questioning her not about other sources in the Plame matter, but about another matter in which the same prosecutor filed a motion to compel Miller’s testimony before the grand jury.
I wrote you about this several months ago. In a published decision, U.S.D.J. Robert Sweet (S.D.N.Y.) denied Fitzpatrick’s motion to compel Miller to testify before a grand jury relating to a leak to Miller about a warrant issued to the FBI for a search of a New York Muslim charity’s offices. A source leaked this information to Miller, who, incredibly, promptly contacted the Muslim charity and revealed the warrant prior to the search. Fortunately, no FBI agents were injured when they searched the offices the next day, in what clearly could have developed into a very dangerous situation.
District Judge Sweet (I will resist reiterating my comments regarding him included in my other email to you) denied the prosecutor’s motion to compel Miller’s testimony about this incident, finding, if you can believe it, that Miller’s conduct was permissible because it was merely in keeping with the Times’ editorial policy of contacting subjects of upcoming articles for comment prior to publication. In opposing the motion Miller stated that she was contacting the charity to get its comments about an article she planned to write after the search had been conducted. In doing so, of course, she divulged the existence of the warrant and created a situation where the office could have been booby-trapped, or at a minimum crucial evidence destroyed or removed. As an attorney, I found the facts of this case and Judge Sweet’s reasoning so disturbing that I continue to be shocked, months later, that this incident hasn’t received more public comment. I don’t expect the Times to report it, of course, but where is the alternative media? I noted that the prosecutor himself (as opposed to a deputy) filed a long affidavit in support of the application, which I understand is something of a rare occurrence in criminal practice. If you haven’t read the decision you really should. I found it to be an eye-opener.
In any case, I always thought that Miller agreed to go to jail not to protect a dubious principle and a source who had already clearly released her from confidentiality in the Plame matter, but rather out of self-preservation, so that she could safely ride out the duration of the grand jury in jail without having to testify about the search warrant affair and her frankly criminal role in that. If my sense about this is correct, she caved once it was suggested that the grand jury could be extended for up to 18 more months. The absurdly public “release” from confidentiality recently restated by Scooter Libby gives her cover, but my hunch is that the real reason for her release from jail is the prosecutor’s agreement to limit his questioning of her to the Libby contacts, which puts the search warrant matter off limits.
If you are interested in reading Judge Sweet’s opinion let me know and I’ll try to locate a copy or a link. The decision was published in the New York Law Journal.
Love the site. It is consistently the most informative, reasoned and interesting blog I have seen.

If that’s right, maybe it’s good news for Libby: he’s not being set up by the prosecutor, he’s just the PR fall guy for Miller and her lawyer, who don’t want to mention a discreditable incident about which the public knows nothing. I hope that’s the right explanation. It still leaves open, of course, the question of why Fitzgerald seemed to think it was a big deal to get Miller’s testimony, if he wasn’t interested in the second source.
The case referred to by our reader can be accessed here.
PAUL adds: While we’re on the subject of unconscionable statements, consider this one by New York Times publisher Arthur Sulzberger Jr.: “We are very pleased that [Miller] has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify.” (emphasis added) Miller had a direct and uncoerced written waiver a year ago and she got the “phone” version immediately after she asked for it. It would have been hard for Paul Krugman to produce a more misleading statement than Sulzberger’s.

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