Behind the Headlines

We have obtained copies of Scooter Libby’s letter to Judith Miller dated September 15, 2005, in which he again urged her to testify before the grand jury, and repeated the waiver that he gave her more than a year ago; a letter dated September 16, 2005, from Libby’s lawyer Joe Tate to special prosecutor Patrick Fitzgerald, expressing astonishment at the claim that Libby’s purported failure to give a “voluntary” waiver was the reason why Miller remained in jail; and a letter dated September 29, 2005–the day before yesterday–from Miller’s former lawyer, Floyd Abrams, to Joe Tate, in which Abrams disputes Tate’s account of their conversation of one year ago and claims that Libby really is the “source” on whose behalf Miller languished in prison. Here they are:



It strikes me that a game of very high-stakes poker is being played here. I still think it almost inconceivable that Judith Miller, or anyone else, would sit in prison for three months, if all she needed to get out was a letter from Libby saying, in effect, “I meant what I said a year ago,” without ever asking Libby for such a letter or communicating to him that it was on his behalf that she was in prison. That scenario, as outlined by Abrams, seems senseless to me. It also doesn’t explain, as Paul noted last night, why Miller stayed in jaiil for another ten days after getting Libby’s letter.
Which leaves open the question we asked last night: What is really going on here?
PAUL adds: Abrams argues that Miller didn’t regard Libby’s waiver as voluntary because Tate allegedly told Abrams that Libby made the waiver as a condition of continuing to work in the administration. However, as Beldar notes, even if this is what Tate told Abrams, the notion that a waiver executed under that circumstance is coerced or non-voluntary runs counter to the law. Otherwise, says Beldar

there could never be a valid guilty plea, for instance. [And] you could freely breach every contract by claiming, “Oh, well, I was coerced into breaking my promise because I suddenly realized it would be disadvantageous to me to keep it.”

Presumably Judith Miller hired her high-priced lawyers (Abrams and then Bennett) to explain these sorts of things to her (Abrams’ claim that Tate “persuasively mocked” the notion that the waiver was voluntary is laughable — since when does a lawyer base his legal conclusions on the mocking of another lawyer). The other reporters involved in this case were satisfied with Libby’s waiver as Tate explained it to their lawyers. Abrams response to this is to huff that “Ms. Miller was not.” But why not? Is it because she received inferior legal advice? Because she wanted to serve some time to enhance her reputation? Or because she had another source to protect?
Abrams apparently would have us believe that it’s none of the above, but rather because she’s more principled than the other journalists. But that still wouldn’t answer the question of why she waited so long to get the answer that she, Judith Miller, needed to satisfy her lofty principles. Abrams admits that Miller regarded Tate’s message (as now depicted by Abrams) as “mixed.” The rational response to a mixed message under these circumstances would be to seek clarification before serving several months in jail.
In short, Abrams’ account doesn’t add up. The attempt to make Libby the fall-guy for Miller’s jail time is unconscionable.
JOHN agrees: It seems clear that Judith Miller and her lawyers aren’t telling the truth. What isn’t obvious, is why. Three possibilities: 1) Miller went to jail because she wanted to pose as a martyr, and she just needs an excuse for why she now wants to go home. That’s plausible as far as it goes, but it doesn’t explain why Miller stayed in jail for another week and a half after getting Libby’s “clarification,” while her lawyer negotiated with the prosecutor. 2) Miller went to jail because she didn’t want to answer questions about her tipping off a terrorist-supporting group that the FBI was about to execute a search warrant, an episode that also could have come before Fitzpatrick’s grand jury. She and her lawyer laid the blame on Libby so that the public wouldn’t learn about the other episode, which is pretty much unknown. Plausible, and consistent with what we’ve been told about her lawyer’s deal with the prosecutor–if, indeed, the terrorist tipoff was something that Fitzgerald could have pursued. I’m not sure whether that’s correct or not. 3) The third alternative is the most sinister: Miller went to jail to protect not Libby, but another source or sources, and the prosecutor has agreed not to ask her about those other sources. If that’s true, it suggests that someone in the administration–presumably, either Karl Rove or Scooter Libby–is being set up.
Maybe there are other alternatives, but those are the ones that jump out at me.

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