Evidence on the Mousetrap Theory

Three reasons to think it’s true, one to doubt it. Why did Fitzgerald let Miller go after an hour and a quarter?

Update below

If you’re keeping score at home, emerging details on Judith Miller’s testimony today provide four points in favor of, and one point against, the Hamsher-emptywheel Mousetrap Theory.

In favor of the theory (from the Wall Street Journal):

Apparently Miller didn’t mention the June meeting with Libby in her earlier testimony. It’s hardly conceivable that the questioning was so sloppy as to not have required her to disclose such a meeting. And this seems to rule out the idea that the sudden “discovery” of the notes of that meeting resulted from Miller’s having mentioned it last week and being asked by the prosecutor to search for notes of it. That discovery might, of course, have been coincidental, but if it wasn’t then the Mousetrap Theory — that Fitzgerald caught Miller in a lie and was then in a position to demand cooperation beyond the scope of their agreement — explains an otherwise puzzling fact.

For a more detailed exposition, see eriposte at the Left Coaster, who is now convinced that the Mousetrap Theory is substantially correct.

In favor of the theory (from Jane Hamsher): Fitzgerald lifted the contempt citation against Miller after today’s testimony, but hadn’t lifted it after last week’s testimony. Why wasn’t he satisfied then? One possible answer: because he knew about the previous meeting before the “discovery” of the notes about it.

In favor of the theory (from Arianna Huffington): By turning over the notes and testifying about the June conversation, Miller went way beyond the scope of her waiver letter from Libby. If she was willing to go to jail to defend her right to keep her promises of confidentiality unless her sources release her from those promises, what changed? Again, the closing of the Mousetrap provides an answer.

In favor of the theory (again from Arianna): Miller and her colleagues, triumphant after last week’s testimony, were much less so after today’s.

Against the theory: Miller’s testimony lasted only 75 minutes. No doubt that seemed like an enternity to Miller, and it’s ample for her to confirm what was in her notes about the June meeting with Libby, but it’s hardly enough for her to testify “voluntarily” on matters further outside the scope of her agreement with Fitzgerald. After Miller’s testimony, the contempt citation was lifted; unless Fitzgerald wants to issue a new subpoena and fight it back up through the courts, she’s done as a witness until it’s time to start impanelling trial juries.

So if you imagined Miller on the stand like John Dean in front of Sam Ervin, saying “… and then Mr. Cheney said to me …,” tying in John Bolton, Richard Perle, and the Illuminati, and laying out in detail the whole plot to sell the war and trash its opponents, your hopes were disappointed.

But that leaves a puzzle for proponents of the Mousetrap Theory: Why should Fitzgerald bother to mousetrap Miller into perjuring herself about the June meeting if the only thing he get out of it is her confirmation that the meeting took place?

Update Kant at Daily Kos offers a new hypothesis that covers the facts, including the brevity of Miller’s second appearance before the grand jury: Miller was indeed caught in the Mousetrap, was confronted with questions that might have revealed her own culpability in the affair, and invoked her privilege against self-incrimination.

The Anonymous Liberal makes clear what had been vague in my mind: the significance of the earlier date. In the Liberal’s analysis, Libby was trying to defend himself by pretending that he’d gotten the tipoff from Tim Russert. If he mentioned Joseph Wilson’s wife at a meeting with Miller before his conversation with Russert, that won’t fly.

The A.L., I learn from an email back-and-forth, can also explain why the Mousetrap might have been necessary: since the subpoena covered only the period starting July 8, if Fitzgerald had telegraphed his intention of probing the June meeting Miller might have balked. Instead, on this account, he induced her to deny any earlier meeting by asking a general question such as “Had you and Libby discussed Wilson’s trip previously?” and then used the threat of a perjury charge to force Miller to change to a truthful answer, and to disgorge her notes even though the subpoena didn’t cover them.

Update: Tom Maguire has a no-perjury theory that also covers the facts.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com