September 30, 2005

Judith Miller and the Year Old Waiver
— Dr. Reo Symes

Recently, someone on (formerly) jailed NyTimes reporter Judith Miller’s team started the ball rolling toward her release by contacting the prosecutor, Patrick Fitzgerald. The story they told him: the only reason their client was still sitting in jail, refusing to testify, was because Joe Tate (lawyer for Cheney’s Chief of Staff, Lewis Libby) told them a year ago Libby’s waiver wasn’t really voluntary.

Fitzgerald apparently sent off a heated letter to Tate. I say "apparently," because though we don’t have that letter, the NyTimes obtained Tate’s excited response. They also have Floyd Abrams' (Miller's lawyer) reply to Tate and released them both today.

Comparing them, it seems obvious they can't both be telling the truth. The NyTimes Adam Liptak writes:

The dueling letters give sharply divergent accounts of what was said a year ago when lawyers for Ms. Miller and her source, I. Lewis Libby, Vice President Dick Cheney's chief of staff, discussed the possibility of Ms. Miller's testimony before a grand jury investigating the possibly unlawful disclosure of the identity of a C.I.A. officer.

That summary doesn’t do them justice. To get the real 'No, you’re lying. No you are' schoolyard sizzle, you have to read the actual letters (link in Liptak's article). Or just read this: Libby's response to the prosecutor:

To say I am surprised [at your letter] is an understatement... I told Ms. Miller’s counsel over a year ago and he assured me there was nothing my client or I could do to change her position...

... Over a year ago, I assured [Floyd Abrams] that Mr. Libby’s waiver was voluntary and not coerced and she should accept it for what it was. He assured me that he understood me completely. From these discussions I understood quite clearly that her position was not based on a reluctance to testify about her communications with Mr. Libby, but rather went to matters of journalistic principle and to protecting others with whom she may have spoken...

(Emphasis original.) Abrams', Sept 29th response:

… In our conversations […] you did not say that Mr. Libby’s written waiver was uncoerced. In fact, you said quite the opposite. You told me the signed waiver was by its nature coerced and had been required as a condition of Mr. Libby’s continued employment at the White House... A failure by your client to sign the waiver, you explained, like any assertion of your client of the fifth amendment would result in his dismissal. You persuasively mocked the notion that any waiver signed under any such circumstances could be deemed voluntary.

You also state in your letter that I “assured” you during our conversations last summer “that there was nothing [Mr. Libby or you] could do” that would change Ms. Miller’s position. That is simply inaccurate. Not only have I never said that, I have never said anything even remotely resembling that to you... Your similar assertions [in your letter] that you told me that you and your client ‘encouraged’ Ms. Miller to testify “over a year ago” are similarly inaccurate.

So what’s going on here?

My usual first impulse with stuff like this is to say it’s just a miscommunication that, for whatever reason, never got corrected. And I can sort of understand its not getting corrected: after the original talks, no one wanted to go back for more. With Miller saying she’s not going to testify, frequent huddling begins to look a bit sinister, something an ornery prosecutor might label ‘obstruction of justice.’ Better to just stay away.

But the underlying stories are just so different. So you ask: what does Libby gain by keeping Miller from taking the stand when other journalist had already testified as to their conversation with him? Why give Miller the run around as to the sincerity of his waiver? Good question. I don't know, though maybe now the Grand Jury does.

And what did Miller gain by stretching this out? Tom Maguire offered this 'run out the clock' theory not long ago.

Another, related to Miller’s drawing the concession she only be asked about Libby, was put forward by Powerline yesterday.

Those could be true but they strike me as complex. And frankly, a little dark.

I'm a sunny guy. I guess I'm gonna try and devise some simple story of lawyerly mega-incompetence. Maybe try to add in super-attorney ego trouble too.

I'll try. But man, they're sure making it hard not to call someone a liar.

Update: Powerline, today, has the letters in nice clickable form.

They also give them a good going over and seem pretty convinced Abrams' response is the weaker. Paul Mirengoff notes:

(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?

Good questions, but I’d note Abram’s job a year ago wasn’t particularly ‘legalistic’ or really calling for ‘legal conclusion.’ He was only acting as a go between, carrying to Miller the signs he gathered from Libby’s lawyers as to whether the White House staffer's waiver was really, truly voluntary. It seems whether or not Tate ‘mocked’ their voluntariness is exactly the info Abrams’ client wanted. Why? So she could make her own independent, ethical, journalistic conclusion based on those facts.

And the concern that Miller wasn’t satisfied while other journalists were, speaks to me as to the possibility Tate told Miller something different than he told other journalists (if they even asked) – and/or, more likely, as to Miller’s particular heightened ethics.

Is there a reason we shouldn’t expect Judith Miller to be little Miss set-a-noble-example? Someone usually is. And frankly, would it be that surprising to discover that a Times reporter romanticizes the journalist/martyr just a little extra, thinks of themselves as belonging to a special journalist-nobility caste of whom more is expected?

Not saying that other, darker scenario’s won’t be proven. (The whole not testify until the scope is restricted gives pause) but I haven’t seen anything yet that really knocks my simple journalist/martyr mind off it’s one simple track.

And I haven’t seen anything yet that makes me think Abrams is lying and Tate isn’t. (though one of them sure looks to be.) Not playing 'Mr. Above Partisan Politics' here. Just saying I don't see it for our team yet on these facts.

Posted by: Dr. Reo Symes at 11:07 PM | Comments (21)
Post contains 1118 words, total size 7 kb.

1 Judith Miller: "I don't have an agenda (period.). Did 'Scooter' really say that a year ago? Gosh. Whatever, I like prison food."

Posted by: ArmChair in sin at October 01, 2005 12:48 AM (8cgj2)

2 You were blogging until 4 am??!?

Posted by: lauraw at October 01, 2005 04:10 AM (Lt6Tu)

3 I still think she went to jail not to protect any individual or her first amendment principals, but to protect the illusion that it COULD be Karl Rove.

Posted by: Scot at October 01, 2005 05:13 AM (GDOa/)

4 Apparently the New York Times is not even competent to understand and report on what is going on with her own reporter, Judith Miller. If the NYT is incapable of understanding Miller, with seemingly unlimited access, how can the Times be expect to report compently on a far away place like Louisana, or my god even Iraq.

Posted by: David L at October 01, 2005 05:20 AM (enA7B)

5 I don't know, though maybe now the GJ does.

Who or what is GJ?

Posted by: at October 01, 2005 05:23 AM (52h84)

6 I'm a sunny guy. I guess I'm gonna try and devise some simple story of lawyerly mega-incompetence.

If you were really a sunny guy you would devise some simple story that Miller enjoyed the full body cavity searches, the communal showers, the bare-chested wrestling, . . .

Posted by: at October 01, 2005 06:29 AM (52h84)

7 It seems to me that now that Ms. Miller has testified in front of the grand jury (GJ), and if nothing comes of it in regards to Scooter, then Ms. Miller had another motive for martyring herself. Could it have been a legacy play? I mean, now, instead of being know as the NY Times reporter who was a Chalabi cheerleader, she will forever be known as the NY Times reporter who went to jail to protect a source. Just a Thought

Posted by: Bohemian at October 01, 2005 06:35 AM (z7WO1)

8 Oy Slubs, get on AIM and welcome me back home.

Posted by: Megan at October 01, 2005 06:36 AM (RPC3I)

9 Wait. Abram's claimed beef was that Libby was told, "say everything you know, don't let anyone keep secrets on your behalf, or you can't work in this White House".

If there had been any other position taken by the White House, the claim would be they're covering up. They took this position, and so they're being accused of "coercing" Libby?

Posted by: Robert Crawford at October 01, 2005 11:39 AM (Gn9tM)

10 Just assume the liberals are lying for whtever reason. It's more simple, and probably correct. Makes a lot more sense than Miller going to jail because her professional thics forbade her from ruining Karl Rove. If you believe that, what can I tell you?

Posted by: Moonbat_One at October 01, 2005 12:37 PM (p2G9i)

11 Powerline's take is a bit dark, but particularly with the addenda, doesn't seem complex at all.

To my utterly non-conspiratorial mind, it seems to fit the facts rather well.

Posted by: Patton at October 01, 2005 12:39 PM (cLlFA)

12 The theory she was covering her own ass regarding blown mosque search warrant sounds like the most plausible of the lot.

Thiat CYA theory requires fewer leaps of faith and suspension of logical self-interested behavior.

Its hard to believe that Sulzberger would have been so apparently staunch in his support if she were covering for some Bush administration factotum. There would have been a week in the can, then a fairly swift rolling over on the administration person were that the case. That would have given enough cover for the NYT to wax poetic about trying to "hold journalistic standards", yet caving because of "concern" that the real leaker needed to be "brought to justice"

Its easy to believe Sulzberger would be that staunch if he were trying to keep the NYT's name out of a scandal involving giving aid and support to a radical muslim crew. Even in the NYT's twisted universe that wouldn't look too good splashed around on the national stage.

Occams razor suggests the CYA theory is it.

Posted by: Purple Avenger at October 01, 2005 05:43 PM (X+OCl)

13 The problem I have with the Mosque angle is that I don't think the prosecutor could hav gotten into it in the first place before the Plame GJ.

He can't subpoena a person in one matter then put them on the stand to ask them about anything under the sun. Maguire notes that the original subpoena for her already would have limited her testimony to a particular source (Libby, we now believe.)

Also, Powerline itself notes that that District Judge Sweet already denied the prosecutor's motion to compel in that other matter. There's just no way a prosecutor thinks he can skirt one order and get his crack at her on that other case simply because he's got her on the stand in another. Just to far fetched.

Still though, I do have to ask myself, why did she bother to negotiate to limit what she could be asked about in the Plame matter. She must have had a reason. I just don't hink anyone's hit on it yet except to offer rank speculation she's covering up for Plame or Wilson or another media type.

Posted by: Dr. Reo Symes at October 01, 2005 05:59 PM (kUNrb)

14 There's just no way a prosecutor thinks he can skirt one order and get his crack at her on that other case simply because he's got her on the stand in another. Just to far fetched.

Ahhh, its only far fetched when you assume a DA without political motivation of his own.

It would NOT be profitable for a DA to draw the ire of the NYT by connecting one of their lackys to some jihadist nuts. That DA is well aware of the NYT's power and likely wants to use it in the future to advance his own career. Nutty as they are, they still swing a heavy bat.

The CYA angle allows for softballs and back scratching all the way around, and the DA got to send Miller and the NYT the message that only a very limited number of free passes will be given for playing footsie with the tangos. Having her vacation for more than a nominal week or two was their mild rebuke for being traitorous fucktards.

This CYA scenario would NOT have played itself out in front a grand jury -- indeed the DA would have done everything in his power to PREVENT a grand jury from knowing about any Miller/mosque connections. That story is poison for everyone involved. If ever accused of collusion to bury the case all the DA needs to say is there wasn't a prosecutable case there against Miller. Case closed.

This would have been the classic "back room" deal cut between the DA and NYT lawyers, maybe even Sulzberger himself (if there's a quid pro quo coming for the DA in the future for giving the NYT's treason a free pass).

Wanna bet any damning physical evidence against the NYT involving the mosque case has mysteriously disapeared now that this is settled?

Posted by: Purple Avenger at October 01, 2005 06:24 PM (X+OCl)

15 Dude, what?

Posted by: Dr. Reo Symes at October 01, 2005 06:42 PM (kUNrb)

16 Reo,

Its like the old time cops say:

Ignore what the perp says - if you want to stay alive watch their hands.

Don't pay any attention to statements and press releases -- that's BS for public consumption -- look at how the pieces are moving on the chess board.

Posted by: Purple Avenger at October 01, 2005 07:00 PM (X+OCl)

17 (I'm no attorney but I did stay at a Holiday Inn Express a couple years ago)

Once she's in front of the GJ, she can be asked anything the prosecutor wants to ask her about, unless she's got prior written agreement from the prosecutor about the scope.

If Fitzgerald wanted to ask her about a lot of stuff not germane to the current GJ's remit, that might irk the jurors, but otherwise, once he's got a witness under subpoena, most bets are off.

The moron judge from the Southern District of NY wasn't ruling on what he could ask her about, he was ruling on how he could compel her presence in front of the jury at all. Big difference, and I still think Powerline's story is the most plausible. It even explains the (likely) lies from Punch & Judy, as well those from the NYT's lawyers.

Posted by: Patton at October 01, 2005 07:19 PM (cLlFA)

18 Patton: Interesting. Also, just read a thing on Talk Left which goes over Maguire's subpeona limitation thing and says that the particualr type of subpoenas wouldn't have limited the scope to just Libby.

But if the Mosque issue was her concern all along, why bother to fabricate the 'not completley voluntary' story about Libby and go to jail for certain for something she might never have been asked about.

Why not answer Libby questions at GJ and IF the mosque came up, refuse those, get the obstruction and serve the jail time for that (an even more righteous martyr cause - not that the mosque ruling was right but it would have been played as so far afield to the matter, she was rightful to refuse. She could even point to the other ruling, though not exactly on point.)

Sure she's got the agreement and saved 85 days, but I have serious doubts she would have been jailed at all for refusing Mosque questions before this GJ. And I still doubt Fitzgerald would even had asked them anyway - bring it up before the appropriate GJ.

That's why I can maybe buy her fabricating the 'involunatry' story if she's really protecting someone else in the LIBBY matter. Not matter what, she was going to get hit with that question, and wuld have had to decide to serve jail over it.

I dunno, I guess it all boils down to my belief (and maybe it's nothing more than a belief) that Fitzgerald wouldn't have asked her about the Mosque here, and the Judge (especially with that other ruling out there, and apparantly another GJ seated for the Mosque thing) in THIS matter wouldn't have jailed her for refusing to respond to it here.

Posted by: Dr. Reo Symes at October 01, 2005 08:32 PM (kUNrb)

19 But if the Mosque issue was her concern all along, why bother to fabricate the 'not completley voluntary' story about Libby and go to jail for certain for something she might never have been asked about.

A few reasons:

1) The mosque story gets to age more and fall off the radar scope while the NYT pimps the hell out of the (now debunked) "Rove did it" angle. News that some major outlet, like the NYT, isn't actively pimping has a real short shelf life in the public eye. If you do a few months in the can, there's a real good probability that some shiny new "big story" comes along to guarantee the Mosque story stays dead and buried. The hurricanes and DeLay were here get out of jail free card WRT news trajectory aspects.

2) By having it be more than a token week or two stretch she now gets to become a millionaire -- something an ordinary reporter never gets a chance at. Book deals, speaking engagements, etc. If she can't pimp this into a couple of million bucks I'd be very disapointed.

I'd do a few months in the pokey if I knew easy street was on the other side. In a heartbeat baby, in a heartbeat.

Posted by: Purple Avenger at October 01, 2005 08:55 PM (X+OCl)

20 What did Bennet say? "They knew where we were, they knew how to reach us"? He was her lawyer, damnitall! If he had any notion to actually keep his client out of jail, if that is indeed what she wanted, he would have gone to them, for godssake. If he did not do this, then either: His client did not want to pursue it, or he is an incompetent lawyer. He charges too much if he is.
Am I wrong here?

I did like his defense of his brother, though.

Posted by: Tom M at October 02, 2005 04:51 PM (+XMdd)

21 He seemed to be clinically ruled out in the Nba Blend caused by a cardiovascular system flaw known as the PFO (Patent Foramen Ovale). The illness had a whole lot related to your pet going down until now within set up snowboards. The personal cardiologist sent all 34 Nba teams telling them cheap hats that they appeared to be scientifically safe and sound to experience.

Posted by: cheap hats at May 15, 2012 10:38 PM (AJGYv)

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