In past diaries I have opined that Judith Miller’s refusal to testify before the grand jury investigating the Valerie Plame affair is rooted not in her desire to protect confidential sources, but rather in her belief that she herself is a target of the investigation facing possible indictment. I believe that the evidence in support of this theory is more in evidence every day.
At least two news accounts have hinted that special prosecutor Patrick J. Fitzgerald has a journalist in his sights in his ongoing investigation.

The Washington Post reported on July 6, 2005 that “sources close to the investigation say there is evidence in some instances that some reporters may have told government officials — not the other way around — that Wilson was married to Plame, a CIA employee.”

And on July 9th The Los Angeles Times reported that “it appears clear that one possibility pursued by Fitzgerald is whether a journalist started a chain of conversations about Plame between reporters and White House officials.”

Other things are also clear. Fitzgerald has indicated in court papers that he wants to learn more about contacts Miller had with an “identified government official” that occurred on or about July 6, 2003 — the date Joe Wilson’s op-ed piece discrediting administration claims that Saddam Hussein had attempted to buy yellow cake from Niger — appeared in The New York Times. Fitzgerald also states that Miller’s “source,” whose identity he already knows, has signed a waver freeing Miller to testify about whatever communication she had with him. Fitzgerald has obtained blanket wavers from four White House officials, including Karl Rove, so it is probably a safe bet that Miller is “protecting” one of those four.

Miller, of course, is not the only journalist who has become a “person of interest” to the special prosecutor. She is, however, the only one who has claimed blanket immunity against even having to appear before the grand jury. Matthew Cooper of Time, Inc., for example, testified last summer along with Glenn Kessler and Walter Pincus of The Washington Post and Tim Russert of NBC about discussions they had with Dick Cheney Chief of Staff, I. Lewis “Scooter” Libby after Libby provided a “personal waver” releasing them from any promise of confidentiality. According to press reports, the journalists sought and received additional assurances from Fitzgerald that placed limits on their testimony. “I personally called Libby about a waiver,” Mr. Cooper told The New York Times, “and he said that if it was O.K. with his lawyer it was O.K. with him.” Cooper has now agreed to testify a second time after receiving what he regarded as similar assurances from Karl Rove.

So in at least five other cases journalists, all of whom refused to honor blanket wavers signed by their sources because they might have been coerced, sought and received personal wavers and then agreed to testify. They also all apparently sought and received some assurances from Fitzgerald allowing them to limit their testimony.

Now what of Judith Miller? According to The New York Times:

”Ms. Miller has been jailed for refusing to cooperate with a grand jury subpoena directing her to testify about “a specified executive branch official” whose identity is known to the special prosecutor in the case, according to court papers. But Ms. Miller refuses to rely on the waiver the source signed or the sort of assurances that have satisfied other reporters.” (Emphasis added)

Jack Shafer of Slate, a frequent critic of Miller, but a defender of her right to protect her sources, has been highly critical of her blanket refusal to appear before the grand jury. He wrote in Slate: “I don’t know of any court, let alone the Supreme Court, that is likely to hold that reporters possess a near automatic right to ignore grand jury subpoenas.”

So let’s add it all up: At least four other reporters on at least five other occasions refused, as did Miller, to honor blanket wavers that might have been coerced. The other four sought and received personal wavers. Miller did not. The other four negotiated with and won concessions from Fitzgerald. Miller did not. Only Miller claimed a right to defy the grand jury. In other words, Miller left no wiggle room for compromise on any grounds and set up a situation wherein Judge Thomas Hogan, a proponent of journalists’ right to protect confidential sources, had no alternative but to jail her.

Could it be that Miller, given a choice between subjecting herself to questions by the grand jury that might have delved into her own possible role in the outing of Valerie Plame, or going off to jail, chose the latter while camouflaging her decision with speeches about the need to protect a free press?

Sources and links:

For Time Inc. Reporter, a Frenzied Decision to Testify

Memo to Cooper and Miller Fire Floyd Abrams. Hire Bruce Sanford. By Jack Shafer

Mystery Thickens in Secret Source Case