Because of their less-than-forthright dealings with Judith Miller and her attorneys, Joseph Tate (Scooter Libby’s attorney) and Libby may find themselves accused of witness intimidation or tampering. Even if Patrick Fitzgerald, the special prosecutor in the CIA Leak case (aka Plamegate), does not press charges for witness intimidation, Tate may find himself the subject of a state or federal bar disciplinary investigation (depending on the jurisdiction).

Following Miller’s release, Floyd Abrams (the NYT/Miller 1st Amendment attorney) and Bob Bennett (Miller’s criminal attorney), appeared on Sept. 30 cable news shows. Both Abrams and Bennett emphatically said that Scooter Libby’s attorney did not give Judith full, unfettered permission — complaining constantly about the “coerced” waiver Libby was forced to sign by the government — UNTIL Libby sent Judy the now-infamous personal letter and called her at the jail. Both attorneys became testy about Tate’s comments after Miller’s release.

Abrams, who appeared Sept. 30 on his son’s MSNBC legal show, implied that Libby let Judith rot in jail until he finally did the decent thing. He snickered when his son Dan mentioned that Libby’s attorney expressed “surprised” that Miller took so long to agree because, Tate said, Libby had given her a green light.

It wouldn’t surprise me — based on my observations about Abrams’ anger with Tate, Libby’s attorney, and Murray Waas’s statements yesterday about Abrams — if Abrams himself contacted Patrick Fitzgerald to complain about the behavior of Joseph Tate.

It’s not a good thing when the nation’s most-respected First Amendment attorney complains about you to a special prosecutor and U.S. Attorney.

Bennett, with CNN’s Wolf Blitzer on Sept. 30, argued that Libby’s attorney did not call him until August 31, after Miller was in jail. Bennett edged towards anger, saying that Libby’s attorney and Libby knew where Judy was and how to reach her.

It’s also worth considering if Judith Miller and Bob Bennett — in reaction to the intimidation — “found” those additional notes that further implicate Libby, presented them to Fitzgerald, and testified again before the grand jury, after which she got her contempt charge lifted. (Fitzgerald, of course, may not have taken kindly to Miller’s 11th hour discovery of the notes, but is no doubt glad to get them and knows, from experience, what it takes to get Miiller’s cooperation. Smirk.)

Murray Waas, whose stories on the CIA Leak case have advanced our knowledge more than any other journalist’s, hinted at accusations of “witness intimidation/tampering” yesterday when he was interviewed yesterday on Democracy Now! by Amy Goodman.

MURRAY WAAS: Well, Judith Miller — there’s an issue that prosecutors are now looking and have been asking questions to Judith Miller, and that’s regarding whether Lewis Libby either directly or indirectly through her attorney attempted to discourage her to testify to the grand jury or cooperate in some other manner with Fitzgerald’s investigation.

Waas’s remarks continue below the fold.


I’m sorry, PISSers, but you may have to wait just a teensy bit (LIKE WEEKS!) longer: “A source close to the Plame case is saying that Fitzgerald met alone with Judge Hogan yesterday, presumably to ask for an extension of the Grand Jury.” (FireDogLake via Crooks & Liars)

PISS = Pre-Indictment Stress Syndrome

Waas’s statements continued:

And the issue there is very important, because if Libby or his attorney in any way said anything, did anything, signaled or in any manner — the Justice Department officials I have spoken to, four former federal prosecutors, all of them said that that could be evidence of obstruction of justice and that a witness and his attorney can’t do anything to discourage a witness.

Now, Floyd Abrams, who’s a very well-respected First Amendment attorney, some think he’s the best First Amendment attorney of this generation [Abrams is the attorney for the NYT and Miller], had written a letter to Libby’s attorney, essentially accusing Libby’s attorney, a guy named Joe Tate, of telling him that his client, Lewis Libby, would rather — that a waiver that Lewis Libby had signed was coercive inherently or in the sense that Lewis Libby had to sign that waiver to keep his job at the White House as a condition of his White House employment, and, you know, in addition to that, that Libby, you know, thought that any agreement that they might have had might still be standing. So, the prosecutor is beginning to look into those conversations, as well.

If this isn’t quite clear yet, recall the story I wrote on Sept. 30 about Judith Miller’s attorneys‘ visible anger with Scooter Libby and, moreso, his attorney Joseph Tate.

From my Sept. 30 story:

Another oddity was that both attorneys — [Floyd Abrams (NYT/Miller First Amendment attorney) and Bob Bennett (Judy’s criminal attorney), on Sept. 30 cable news shows] — claimed to have had communications with Joseph Tate, Scooter Libby’s attorney, that were not forthcoming about Libby’s permission for Judith Miller to testify, … Bennett said he didn’t talk to Libby’s attorney until August 31, after Miller was in jail, and that the attorney was not clear about Libby’s wishes.

Abrams went further: He said that Libby’s attorney talked a double story. He told Abrams that Libby graciously gave permission for Miller to testify about what Libby told her, but the attorney reminded Abrams that Libby had been coerced into signing a blanket, standard release. Abrams interpreted this as less than forthcoming, and so advised Miller. It was only after Miller received a personal letter from Libby, followed by a personal phone call to her at the jail, that she knew for certain that Libby was giving her permission to testify about what he’d told her, without reference to the blanket release he’d been “coerced” into signing.

It also didn’t help — as JPol noted in an e-mail to me — that the weird private letter that Scooter Libby sent to Judy was “leaked” to the press. (I wonder how THAT LEAK happened.)

The strange, muted threats in Libby’s letter to Miller — the aspens turning together — while she was still in jail, must have added to Fitzgerald’s suspected investigation into the possibility that Joseph Tate and his client Scooter Libby engaged in witness intimidation.

As JPol wrote to me in another e-mail (reprinted with his permission):

Fitzgerald asked Libby, through Tate, to write Miller a new letter stating
unambiguously that the waiver was voluntary and that she was free to
testify. Libby was assured that the communication would be private and that
Fitzgerald would not see it. That seems to have emboldened Libby to write
that bizarre letter which almost every one thinks is filled with code and
innuendo. The problem for Libby arose when someone leaked his letter. At
that point Fitzgerald read it and apparently saw it much like others did.
It is now widely available on the internet.

The Austin American-Statesman‘s Washington bureau gave a good write-up of Libby’s strange letter to Miller:

[E]veryone focuses on the ending.

“You went to 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.”

This prose flowed from the pen of Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, in a letter to Judith Miller ….

In what the New York Observer called “his oddly florid letter,” Libby personally released Miller from her pledge — as she requested, having rejected a release issued through Libby’s lawyer more than a year earlier.

“Your reporting, and you, are missed,” Libby wrote in the Sept. 15 “Dear Judy” waiver.

On the Internet, some bloggers think that Libby’s cryptic, purplish phrases carry sinister hidden meanings and that the turning trees of the West, and their connections and clusters, are all part of a secret code.

“Just take a look at how badly written this is. Libby’s no idiot,” one observer wrote on the liberal Web site “He’s taking this opportunity to send a message.”

“I’m sorry that I can’t crack the code — but it’s almost certainly there,” another e-mailer said. “All that talk about aspens and roots.”

See also: A PDF version of Libby’s personal letter to Miller, via the New York Sun and the New York Times PDF collection of letters to Miller. (Thanks, CATNIP! — She found these links for me.)

Update [2005-10-13 12:14:14 by susanhu]: As a little birdy — that’d be BooMan — whispered in my ear this morning, the message may be that “You’re as dead as David Kelly unless you testify correctly.”

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