Libby: ‘I’m Sorry You’re in Jail, Judy’

Martin Longman

19 years ago

CNN’s latest article on the Miller case offers some interesting tidbits. It appears that she was keen to avoid having to testify about her reporting on WMD. First some quotes, then some speculation on the flip.

Here, CNN is discussing the negotiations for Miller’s release from jail. They involved Libby’s attorney, Joseph Tate, Miller’s attorney, Bob Bennett, and Fitzgerald’s office.

Miller had spent nearly two months in jail on civil contempt-of-court charges when negotiations between the two camps resumed. Another Miller lawyer, Robert Bennett, picked up the phone on Aug. 31 to call Tate. Bennett told TIME that the Miller camp had received an indication from a third party that it might be a good time to approach Libby with a new request to personally waive the confidentiality agreement.

It took Miller’s lawyers a month, till Sept. 29, to hammer out the details with Libby and Fitzgerald. A legal source told TIME that Fitzgerald gave both camps a letter saying that if Miller and Libby were to have a talk about making a deal, the prosecutor wouldn’t view the conversation as collusive or obstructive as long as they didn’t discuss what Miller would testify to.

Said Bennett: “She would not testify until she was satisfied that the source personally was waiving confidentiality, and she wanted to hear it directly from him.” Negotiations with Fitzgerald were complicated, involving not only Miller’s testimony but her notes as well. The legal source told TIME that the prosecutor did not give the final O.K. for Miller’s release until after he received and reviewed the notes from one of two conversations with Libby in July 2003.

In his deal with Miller, the prosecutor agreed to limit the scope of her testimony before the grand jury, focusing only on the reporter’s conversations with sources about Plame, according to her lawyer Bennett. Miller wanted to rule out of bounds any questions about her reporting on WMD, a lawyer involved in the case told TIME.

:::flip:::
A couple of things stick out. First, Miller and/or her lawyer were approached by a third party who told them it “might be a good time to approach Libby”. A possible explanation for this comes later in the article:

Pressure had been growing on Libby from G.O.P. lawmakers to take whatever steps necessary to free Miller from her imprisonment.

So, it appears everyone and their mother knew that Libby was responsible for Miller’s imprisonment, contrary to Libby’s letter which expressed surprise that he was the source she was protecting. Also directly contrary to Tate’s latest bullshit:

Joseph Tate, who represents Lewis ‘Scooter’ Libby, chief of staff to Vice President Dick Cheney, accused Floyd Abrams, the well-known First Amendment lawyer, of engaging in ‘spin control,’ The Washington Post reported. Tate says Libby released Miller from her promise of confidentiality long before she was imprisoned for refusing to testify before a grand jury investigating the leak of CIA agent Valerie Plame`s identity.

‘The significant fact that you continue to omit, and that seems to be lost here, is that you never told me that your client did not accept my representation of voluntariness or that she wanted to speak personally with my client,’ Tate said in a letter to Abrams. ‘Even you can`t spin those facts away. That is the answer to this unfortunate circumstance of your client`s incarceration, not any failure on our part.’

But another possible explanation comes from Newsweek’s piece:

Fitzgerald indicated he would not let the matter drop when the grand jury, investigating the leak of covert CIA agent Valerie Plame’s identity, expires in late October. Instead, he would keep his long-running probe open with a new grand jury. The sobering prospect spurred fevered negotiations among lawyers to find conditions that would satisfy both Miller and Fitzgerald. What Miller wanted was a direct, personal assurance from Libby that he had no problem with her testifying about two conversations they had in July 2003. That finally came on Sept. 19, in what participants described as an “awkward” four-way conference call that included Libby, Miller (patched in on a jailhouse phone) and their lawyers. “I’m sorry you’re in jail, Judy,” Libby said, according to an account provided by his lawyer, Joseph Tate. “I am, too. The food is not very good,” Miller replied. Libby then told Miller he wanted to “encourage” her to testify to “help both of us… get this matter behind us.” At one point, Libby added “something like, ‘We miss you’,” according to Tate’s account.

I don’t know who the third-party is who initiated this phone conference. I thought it might be John Bolton, since it has been reported he visted Miller in jail. But that rumor was floated on August 15th, long before the process leading to Miller’s release got started.

I also am intrigued by the not so subtle use of the (…) by Isikoff. The clear implication of that (…) is to convey that Libby was sending a message. Perhaps even a veiled threat. I’ve been wondering whether Libby’s strange letter also contained a veiled threat. Libby wrote:

You went into jail in the summer. It is fall now. You will have stories to cover – Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work – and life. Until then, you will remain in my thoughts and prayers.”

Is Miller an ‘aspen’? Does ‘turning’ refer to becoming a state’s witness? Ah, so much to speculate on.

But back to the top clip. Miller was not only negotiating with Libby, she was negotiating with Fitzgerald about limiting the scope of his questioning. She didn’t want to answer questions about her reporting. How very intriguing. And yet, Fitzgerald agreed to limit the scope and not question her about her reporting. So, a lot of speculation about how wide of a net Fitzgerald is casting may be off the mark.

Still, why would Miller want these assurances? Why does she assume that Fitzgerald might want to ask about her WMD reporting?

And this gets back to something else I have always wanted to know. Judy Miller never wrote an article about Joe Wilson or Valerie Plame. So, how did Fitzgerald become aware of her involvement in the leaks? Answer me that question and we will be a lot closer to understanding this case.

Meanwhile, the Washington Post reported a couple days ago::

a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose…

One source briefed on Miller’s account of conversations with Libby said it is doubtful her testimony would on its own lead to charges against any government officials. But, the source said, her account could establish a piece of a web of actions taken by officials that had an underlying criminal purpose.

If that ‘web of actions’ connects up all the aspens, this investigation could still be earth-shattering:

Speculation is rampant in Washington this weekend, with ABC’s George Stephanopolous adding fuel to the fire Sunday morning, disclosing on the “This Week” program that “a source close to this told me this week that President Bush and Vice President Cheney were actually involved in some of these discussions” involving Valerie Plame.

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