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October 01, 2005

Judith Miller and the Year Old Waiver

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.

digg this
posted by Dr. Reo Symes at 04:07 AM

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