Patrick Fitzgerald’s mousetrap

Did Fitzgerald just mousetrap Judith Miller?

(4 updates)

Just back from the LA Blogger Bash, where Jane Hamsher of Firedoglake patiently explained to me her theory, and that of emptywheel of The Next Hurrah, of how it came to pass that Judith Miller suddenly discovered some notes about her meetings with “Scooter” Libby, Dick Cheney’s chief of staff, after her grand jury testimony.

If it’s not — as I suspect it is — a brilliant and plausible inference that accurately ties together disparate facts, it’s one of the best pieces of legal fiction ever penned. You should read both of the linked items in full, but here’s the idea as I understand it:

1. The revelation of Plame’s identity to Cooper and Novak (among others) was part of an attack on Joseph Wilson’s credibility that started before, and not after, his NYT op-ed of July 6, 2003. Wilson had already been the unnamed source of press reports casting doubt on the uranium-from-Niger story, and the White House Iraq Group was out to get him, for self-protection and retaliation.

2. Miller planned to write a story about Wilson, prompted by Libby and members of the W.H.I.G.; those plans were pre-empted by his op-ed. (Or perhaps when he learned that his role as a source for Kristof was going to be revealed anyway, he decided to tell the story himself.)

3. Libby had told the grand jury about his conversations with Miller in July, but not about conversations in June relating to the story that Miller planned to write but never wrote. Those conversations would have been hard to reconcile with the story Libby and his friends were trying to peddle: that their attacks on Wilson were purely defensive responses to his op-ed.

4. Unbeknownst to Libby and Miller, Fitzgerald had learned of those June conversations, either from Wilson or from someone at the Times.

5. As Fitzgerald expected, Miller in her testimony did not mention the June conversations with Libby. (Libby’s letter to Miller contains language that might be read as signaling to her that she should confine her testimony to the July conversations.) Fitzgerald asked her leading questions which, without tipping her off about how much Fitzgerald knew, put her in the position of having to testify falsely in order to avoid mentioning those conversations.

6. Once Miller’s testimony was over, Fitzgerald called her lawyer and said, “Why didn’t your client mention the June conversations when she was asked about them?” It was that phone call that triggered Miller’s sudden discovery of the June notes.

7. Having caught Miller committing perjury, Fitzgerald is now in a position to, in effect, renege on his agreement to ask her only about her conversations with Libby. Under the terms of that agreement, Fitzgerald can’t compel her to testify about conversations with other people, but she can of course do so voluntarily. And Fitzgerald can tell her lawyer that if she fails to volunteer, she may be looking at substantially more than 85 days behind bars on charges of perjury, conspiracy to obstruct justice, being an accessory to Libby’s violations of the Espionage Act, or being a co-conspirator with him and others in those violations. (This is perfectly acceptable prosecutorial conduct, not even close to any ethical line.)

Instead of a mere percipient witness, Miller is now a potential defendant, and Fitzgerald can try to “flip” her against all of her sources, not just Libby.

Jane concludes:

Note to self: do not EVER play poker with Patrick Fitzgerald.

Well, right. And I would add: do not enter a spy-novel-writing contest against Jane Hamsher or emptywheel. I don’t often encounter anyone with a mind more devious than my own, but in this case I bow to either superior penetration or superior invention. Whether this is Fitzgerald’s plot or Jane’s, its author has a wickedly brilliant intellect.

Update Tom Maguire notes that Fitzgerald’s subpoena to Miller covered only documents after July 6. So why, Tom asks, is Ms. Miller suddenly so talkative? Count that as another puzzling phenomenon that the Hamsher theory explains nicely.

Second update A reader has some thoughts:

A couple of things I can help on regarding Miller and Plame and Libby and Fitzgerald.

Re 2: We in fact know that a good part of what prompted Wilson to go ahead with his op-ed was that a journalist told him his name was about to be revealed as the relevant envoy to Niger. See Wilson, Politics of Truth, 3, 332, 419.

Indeed, on p. 332 he says that two weeks after Rice’s disastrous appearance on MTP on June 8 — which puts us around June 22 — his name was circulating openly among the press.

Of interest also — a fact that I have never seen any attention paid to — is that Wilson briefed both the House and the Senate Intelligence Committees (their staffs, apparently) in June (this is from 419). It’s possible, as emptywheel has speculated (she does speculate a lot), that Miller was the one writing the story, and it’s possible it was prompted by Libby. But we don’t have much to substantiate that idea. It’s also possible Wilson found out from Miller herself, though again we don’t know.

The crucial question regarding what’s going on with Miller right now — one whose answer might make for a much less exciting account than firedoglake/ emptywheel’s — is: what was the content of the deal struck by Fitzgerald and Miller? As far as I can tell, we don’t have a precise account of it. Pretty clearly, Fitzgerald agreed to scrap the second element of the subpoena(s) of Miller, which included uranium-seeking more generally. There has been some puzzlement as to why Fitzgerald would ease up on Miller now (especially from TM). I suspect part of the answer is that he got something in return, though we don’t know exactly what, and that is what enabled him to get info out of Miller on events in June 2003 (which is beyond the dates specified initially in the subpoena) without having to go back and get another subpoena or threaten her with more jail.

If this is right, the really interesting question about the deal is whether it stuck with the original narrower scope of the subpoena — that is, only material related to PLAME — or whether it broadened the scope to include WILSON’s trip more generally. So far media reports have been ambiguous, though they have only mentioned Wilson’s trip with regard to her newly discovered notes (as far as I can tell). It is possible this is all Fitzgerald was after anyway with the broader clause in the initial subpoena. And if that is all their June

conversation touched on, Wilson’s trip without mention of Wilson’s wife and any purported role she had in it, then there’s nothing much exciting: the Libby-Miller meeting is reported to have taken place on June 25, and we know that Libby was talking to Pincus about Wilson’s trip — though not his wife — earlier in June.

It is potentially far more damning for Libby and/or Miller if they did in fact talk about Plame back in June. And I will note this. Adam Liptak’s Oct. 1 NYT story sure makes it sound like the agreement was specifically limited to Plame:

“The second factor in Ms. Miller’s decision to go before the grand jury was a change in the position of the special prosecutor, Mr. Fitzgerald, concerning the scope of the questions she would be asked,

according to Mr. Abrams. Mr. Fitzgerald only recently agreed to confine his questions to Ms. Miller’s conversations with Mr. Libby concerning the identification of Ms. Wilson, Mr. Abrams said.”

Note no specification of date in there. Maybe this was what Fitzgerald was after all along.

My take on this goes along with the more deflationary view taken by TalkLefttoday, except that I think she makes one mistake. She says, “how many times did we hear her say she was going to jail because she didn’t want to go down the Matt Cooper road where she’d testify about one thing or person and then Fitz would come back and ask for more and

it would never end. “

If I am right, Miller is fine with the deal because it does confine her testimony to one thing — Plame-related (or Wilson-related) conversations with Libby. What I think Miller actually said was that

she didn’t want to end up like Cooper where her testimony about one SOURCE opened her up to testifying about other sources, which is what

happened with Cooper (Libby to Rove). I would also add as a qualifier that it is possible that Fitzgerald wanted to hear about all her conversations with sources about Plame, but in fact that meant only Libby.

Two other factors, real quickly. First, there was one report where Miller talked about the White House spin being put on the deal reached, where Libby’s lawyer tried to blame Abrams for her predicament. She seemed peeved, which one would imagine would make her more cooperative — not unlike what has been reported about Cooper’s motivation to cooperate on Rove. Second, there may be a hint

of Libby trying to indicate to Miller not to talk about their June conversation in his letter to her — which, remember, Fitzgerald explicitly said he did not want to see. Right after recalling that he signed a waiver of confidentiality regarding all conversations with

reporters about Plame-Wilson, Libby writes, “The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you.” JULY 2003. This very well may be true, but in the letter as I read it, it serves to qualify his waiver, saying, in effect, July 2003 is covered, but maybe not June or whenever else (like May 2003). If this is so, Libby may really really be in trouble. But maybe that’s my wishful thinking getting ahead of me.

A query, though for my reader and for TalkLeft: all the news accounts refer to the notes having been “found” or “discovered” since her latest testimony, rather than newly produced in respose to a new request. We need to account for the new discovery (whether actually new or conveniently remembered) and for Miller’s “volunteering” material outside the scope of the subpoena and the get-out-of-jail deal.

Third update Mickey Kaus points to Greg Mitchell’s column in Editor and Publisher, which in turn points to Mike Isikoff’s account claiming that that the notes were found (Isikoff doesn’t tell us by whom) in a notebook in the Washington bureau of the NY Times.

Fourth update Some evidence, pro and con.

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: