Tuesday :: Oct 11, 2005

Treasongate and Judith Miller - Plea Bargain (or) A Bargain?

by eriposte

[UPDATE 2 (10/13): Updated reports, more information and a response to Mark Kleiman's question in Appendix B.
UPDATE: Two updates posted in section 3 which make it pretty much certain that Miller was not honest.]

The issue of uranium from Africa and the Valerie Plame expose took a sharp and unexpected turn this past week with the emergence of Judith Miller from prison. In my previous post on Lewis "Scotter" Libby's grand jury testimony and Judith Miller's first appearance before the Grand Jury, I made the following observations (with some comments added):

  • Libby's claim that he heard that Wilson's wife played a role in Joseph Wilson's trip, but that he did not (initially) know her name or occupation, is implausible and reflects a convenient, fake cover story.
  • Libby confirmed that Dick Cheney had some involvement in the campaign to trash Joseph Wilson (and possibly his wife)
  • Libby's strange letter to Judith Miller showed that he was clearly implying that Miller knew about Valerie Wilson prior to their having talked. It is unclear whether this is true or not. The public appearance of the letter and its implications may have had a role in Miller's sudden "discovery" of additional notes from a June 2003 meeting with Libby.
  • Miller's lawyer's letter to Libby's lawyer indicates that both Libby and his lawyer were not telling the whole truth in their respective letters. As Murray Waas notes in his article today in the National Journal, Fitzgerald may construe this (and their silence when Miller was in jail) as a possible attempt to obstruct justice.

Since my previous post, I have spent more time reflecting on the emergence of Miller's "notes" and her planned return to the grand jury tomorrow to testify about them. A review of the facts to-date suggests that Miller may have indeed been caught in a perjury trap as Jane Hamsher (Firedoglake) and Emptywheel (The Next Hurrah) et al. have hypothesized, and that the latest developments are a natural consequence of her wanting to get out of it with her (already poor) reputation intact. After all, it's a clear bargain to retain the myth of "martyr" and testify to the whole truth and nothing but the truth, rather than to face the long arm of the law for less than stellar behavior. Yet, the latest news articles do not point to this theory - rather, they appear to suggest that Miller merely (and suddenly) recollected some information about an earlier meeting with Libby and is doing her part to testify truthfully based on those recollections.

In fact, a more detailed review of the facts and reporting actually provides significant evidence for the perjury hypothesis. So let's explore that in this post (which is broken up into a few sections for clarity).

1. Preface
2. The Perjury Hypothesis
3. The Case for Miller Having Misled the Grand Jury
4. Miller's Possible Motives to Not Reveal the Whole Truth
5. Conclusion
6. Appendix A: The Significance of Fitzgerald's Push for Matt Cooper's and Judith Miller's Testimony
7. Appendix B: Did Fitzgerald Intend to "Mousetrap" Judith Miller all along?

1. Preface

Let me be up front and admit that come to this issue with a bias against Judith Miller for her false and flawed propaganda in the New York Times in favor of the Iraq war. That said, I have always been willing to believe that she may be on the right side of the law on the issue of the Valerie Plame expose. My position has been one of extreme skepticism about her "martyrdom" claims and concern about her real motives, but balanced by a willingness to let the facts speak for themselves when they come out.

2. The Perjury Hypothesis

Let's begin with a summary of the perjury hypothesis. Mark Kleiman has handily summarized the hypothesis attributed to Jane Hamsher (Firedoglake) and Emptywheel (The Next Hurrah) - with some comments of mine inserted in []:

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 [eRiposte note: That's uranium from Africa, but Africa was used as a proxy for Niger], 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 [eRiposte note: See Appendix B of this post for my comments on this], 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.

Not every detail in this hypothesis may pan out in the end, but as a broad outline it serves as a reference for the future.

3. The Case for Miller Having Misled the Grand Jury

To see if the facts to-date support the hypothesis that Miller misled the grand jury and got "caught", let's begin by drawing up a quick table showing the expected legal outcomes for Libby and Miller based on whether or not they told the truth to the grand jury, about the fact that they spoke to each other on June 23, 2003 and discussed the Wilson issue (apparently including Valerie Plame - or at least Joseph Wilson). For example, if Libby's response regarding the June 23 meeting was truthful, we enter a "T" under his name, if not we enter an "F". Likewise for Miller. Focus on the last two columns. You will see that there are two situations where the legal outcome for Miller is "BAD" and two where the legal outcome for Libby is "BAD" - corresponding to "F"s under their names. The only situation where the legal outcome for *both* is bad or uncomfortable is the last one. That is exactly what you've seen play out in the press, albeit using a highly softened tone.

Libby's response on June 03 mtg
Miller's response on June 03 mtg
Legal Outcome for Miller
Legal Outcome for Libby

Now, some of you may suggest that Miller may have actually told the truth and that her attempt to report the newly discovered "notes" is a sign of cooperation, rather than a response to having misled the grand jury. Unfortunately, as much as I would like to give Miller the benefit of doubt here, the actions and reports suggest otherwise.

(a) If Miller actually told Fitzgerald about the June 2003 meeting during the grand jury appearance, then she must have shared the same information with him when he deposed her (at the time she was released from jail) prior to her grand jury appearance. In that case, Fitzgerald would surely have allowed her to submit her "notes" for review first, before hauling her to the grand jury, so that he could avoid having to bring her to the grand jury twice, especially at a time when the grand jury is running out of time (expiry date of October 28, 2005). Clearly, this did not happen - and that indicates that Miller did not reveal the June 2003 meeting during her testimony.

(b) If Miller's defense is that Fitzgerald did not ask her specifically about meetings prior to July 2003 because the subpoena only asked for information on her July 2003 meetings with Libby, then there would not have been any need for her to go back and "discover" some notes from a June 2003 meeting and report it back to Fitzgerald. After all, why volunteer information that was not asked for when the terms of your agreement were to not reveal conversations with sources unless specifically agreed-to up-front? So, the fact that she did bring up the "notes" after her grand jury appearance suggested that she must have said something during questioning that effectively denied or ignored the June 2003 meeting, even though the question solicited that information (directly or indirectly). As a result of her testimony, she was forced into a corner by Fitzgerald to acknowledge the earlier meeting (since Fitzgerald knew about it through another source), even though it fell outside the July period (which is the only period explicitly communicated to her by Libby).

(c) If Miller's defense is that she "honestly" did not remember the June 2003 meeting until after her grand jury testimony, this would be ridiculous considering that she has had 85 or so days in jail, preceded by a year or more prior to that, to go back and check all her notes and ensure she brushed up on all her facts and recorded conversations. It is simply implausible that a reporter who takes notes of her conversations would accidentally forget the notes and her memory of perhaps the most significant conversation relating to the issue, a conversation that would have made the Bush administration's argument -- that their response to Wilson's op-ed led to the unintentional release of classified information about his wife, and purely in response to questions from reporters - appear to be false or made-up after the fact. Moreover, even if she actually forgot, given that the date fell outside the ostensibly agreed-to period (July 2003), why would she suddenly decide to volunteer more information after fighting against testifying for so long?

(d) The description of the story about Miller's notes was conspicuously passive and devoid of details (with heavy use of the word discovered), indicating that there was no active confirmation that Miller voluntarily remembered, searched for, found and revealed the notes in order to uphold the truth and cooperate with the prosecution. Moreover, one report even indicated that her attorneys asked her to "reexamine" other notes and that the "discovery" occurred in response. The descriptions in all these reports were serious, yet low-key, indicating that there was much more behind the scenes than was visible from an outsider's perch.

NOTE: One news report said that Miller's newly "discovered" notes were found in the Washington bureau, where she has not had a desk for a long time. Jay Rosen provides more recent reports that point out that the notes were found in Miller's own notebook, not in the Washington bureau. So, did someone on Miller's team leak inaccurate information to make it look less embarrassing for her?

(e) It is instructive that news reports of her testimony, which were not contradicted by anyone, specifically said that it was quite consistent with Libby's testimony - and there was no mention in the reports that she ever mentioned a June 2003 meeting with Libby. (This is also significant considering Libby's explicit mention of conversations he had only in July 2003, in his private letter to her, among other things.) There was not a single report suggesting that she agreed, during her testimony, to turn over additional notes. Subsequent news reports confirm that she specifically failed to mention the June meeting in her testimony.

(f) Worse, it appears both Miller and her legal team misled their own newspaper about when she first spoke to Libby, as Jane Hamsher explains at The Huffington Post:

From the NYT on October 1, in an article written by David Johnston and Richard W. Stevenson, with reporting by Doug Jehl:

Ms. Miller spoke with Mr. Libby first on July 8, when the two met, and on July 12, when they spoke by phone. She was working on an article about banned weapons in Iraq that was not published.

(my emphasis throughout)

The article appeared two days after she cut her deal with Fitzgerald, the day after she testified before the Grand Jury. Now that we know that Miller and Libby first talked about Wilson on June 23rd and not on July 8th, we have to ask -- who is the source for the statements about when Miller and Libby "first" spoke?

Well, there are only two people (presumably) who were party to that conversation, Judy and Scooter. Scooter's career of talking to reporters has been tragically truncated, and he now speaks through his lawyer.

Despite having their hands tied behind their backs by a hopelessly complicit management, these reporters are thorough professionals who have shown themselves on repeated occasion to be perfectly capable of adding "...according to sources who have been briefed on the meeting" or some other roadsign to hip the reader when what they are about to read is quite possibly some outrageous legal dissembling.

One would naturally assume that this information came from the Times' own star reporter, Miller, recently out of jail and anxious to get back with her peeps. And she punks 'em.

Now, the unbelievable part in this theory is not that she tried to play her fellow reporters for suckers -- she'd certainly done it once before to Jehl, a decent guy who's tried to hold the Times to account in the past and who ought to be getting pretty tired of Judy's crap at this point. (Note to Jehl: third time's the hat trick, man. Enough's enough.)

No, for me this theory falls apart when Judy has an interlude of honesty standing before Fitzgerald's Grand Jury. Why would she then walk out and lie to Johnston and Jehl and the rest of her "clan?" I'm not buying it. If she was honest with Fitzgerald and the Grand Jury, why did she allow her own paper to print a blatant fabrication on the very next day? If she planned to cop to the June 23 meeting all along, why hang her "tribe" out to dry and make them look even stupider and more uninformed than they had been before in her wake, if that was even possible?

That's the thing about liars. Once they start with a particular lie, they don't make pit stops for honesty. They keep going 'til they're busted.

Emptywheel, who is the co-author of the "dust bunny" theory adds this:

And we know, too, that the NYT did their own correcting of the Johnston story. Two days after the fact. But they didn't correct the July 8 date. Which says that, as of Sunday night, the NYT was still operating on the story that Judy first spoke to Libby in July.

I'd add to that the silence of the NYT after this happened. They went from Happy Judy to Taciturn Judy in just a few days. Something happened.

Further, the intrepid and compulsively readable Tom McGuire [sic] points to this in the October 1 NYT article:
Lawyers for Ms. Miller would not discuss her testimony. But a legal adviser who has talked with her about her conversations with Mr. Libby said she talked twice to Mr. Libby and did not fully recall all the details, but kept notes that had been turned over to the prosecutor in edited form.
So both Judy AND her legal advisers were sticking to the "talked twice" fiction the day after she testified. Anyone still want to argue she went in and uncharacteristically coughed up the truth to Fitzgerald?

Also, Fitzgerald interviewed Judy in jail on Thursday, September 29. We assume she told him everything she was going to tell him the next day -- and by all accounts he is a very, very careful and thorough prosecutor. If she had mentioned any notes, my gut feeling is that Fitzgerald would've had them in his hands, pronto. Why wait a week? Why drag Miller in front of the Grand Jury without having seen what could be critical information in the notes first?

For those who want to argue that Miller just "remembered" a bunch of previously forgotten documents outside the scope of the subpoena that she (or the New York Times) simply willingly offered up -- you're going to have to work a little harder to convince my inner novelist.

(g) As Mark Kleiman notes:

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.

(h) Finally, the New York Times management's disgraceful behavior throughout this episode is yet another reason to suspect that Miller and her bosses have not been straight with the prosecutors, other employees and their readers. Jay Rosen has more on that at Press Think.

Thus, the preponderance of evidence (not speculation alone) points to the conclusion that Judith Miller was not straight with Patrick Fitzgerald and was not straight with the grand jury - and that, as a result, she is trying to cooperate now to salvage whatever is left of her poor reputation. It is also therefore a reasonable conclusion that media reports about her present cooperation with Fitzgerald are probably written in deference to a colleague, with the tone and content being softened to give her benefit of the doubt and reflect her newfound cooperation with Fitzgerald. In that spirit, and considering the seriousness surrounding the investigation, I am willing to retain a very very tiny bit of benefit of the doubt for her pending more information, but my patience has just about run out with Miller.

4. Miller's Possible Motives to Not Reveal the Whole Truth

If Miller told the truth and is simply cooperating as a consequence of that, well and good.

On the other hand, with the evidence to-date suggesting she wasn't entirely straight with the grand jury, one must ask what possible motives could she have had to not be straight.

In my previous post, I indicated that Libby's letter to Miller suggested that Miller knew about Valerie Plame prior to their conversations on this topic. I have no idea whether Libby's indirect reference to this was true or not. Time will tell. But it would certainly be a strong incentive for Miller to hesitate admitting that she leaked information about Valerie Plame to Libby if that is what really happened. Again, I don't know if that happened and given Libby's own problems with the truth, it is entirely probable that Miller was not the person leaking Valerie Plame's identity to Libby.

Another motive could be Miller's closeness (I don't mean romantically, but platonically) to Libby (a relationship that seems to be more than a routine friendship between a reporter and her source) and to other members of the White House Iraq Group (WHIG), considering that she helped them significantly in generating reams of false propaganda on the nation's newspages to take the country to war with Iraq.

5. Conclusion

Miller may have gotten a last chance to turn her "plea bargain" into a "bargain" - a chance to walk into the sunset claiming to a First Amendment "martyr" while testifying to the truth. She hopes we won't notice the reality - we will. But she's gotten a golden opportunity to ensure that the general public won't. She might as well use it.

As for Libby, as Tom Maguire at Just One Minute says:

Depending on the specific testimony of Libby and the materiality of the June 23 talk, this new information ranges between modestly bad and disastrous for Libby.

P.S. Other comments and discussion on these developments are at Talk Left.

6. Appendix A: The Significance of Fitzgerald's Push for Matt Cooper's and Judith Miller's Testimony

I said this in my comments at one of Emptywheel's posts at The Next Hurrah and it bears repeating only because the big picture has become a lot clearer now, about the direction of Patrick Fitzgerald's investigation.

The key thing is that Fitzgerald was after Cooper and Miller because he felt there wasn't much of a case without their testimony. If we work back to that using the knowledge we have today, it becomes clear that he was after them for the following reasons:

1. Rove had changed his story with the grand jury which made it clear that his words could not be trusted. He spoke to Novak and Cooper and Novak was a serial fabricator in cahoots with Rove who could not be trusted. Cooper was the only person who could shed light on whether Rove's latest narrative was true or not. Hence his appeal to the court to force Cooper to testify.

2. Libby testified on all his contacts with the Press, but Fitzgerald must have heard from another witness that Libby left out at least one meeting with a reporter (Miller) - in June 2003. That must have made it apparent to Fitzgerald that unless he gets Miller to testify to that meeting, he could not prove that Libby hid something from the grand jury. Hence his push to force Miller to testify.
[UPDATE: Anonymous Liberal has a similar argument, except he(?) also introduces into evidence the fact that Libby had claimed he heard about Valerie Plame from Tim Russert of MSNBC in July 2003 - which Russert has "denied". If Libby had spoken about Plame with Miller in June 2003, that would be another point to snare Libby with].

So, here's a question. Who might have known about the Miller/Libby meeting in late June 2003? Is it likely to have been a NY Times colleague who was interviewed or subpoenaed?

Emptywheel's suggested answer to the last question is David Johnston at the New York Times. Maybe, maybe not. Time will tell.

7. Appendix B: Did Fitzgerald Intend to "Mousetrap" Judith Miller all along?

In a nice roundup post, Mark Kleiman asked this question:

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?

He provides one possible answer from Anonymous Liberal [A.L.] (bold text is my emphasis):

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.

I think A. L.'s argument has some merit - as he expounds in his blog post, but, it is also possible that there is another slightly different explanation. Here's the gist of what I wrote to Mark in response to his question and you'll see the slight, but important, difference in my version compared to that published by Mark and attributed to A. L.

Fitzgerald's ultimate goal was to catch Libby in a lie, not Miller (Miller was not his original person of interest). So, once he knew Libby had not disclosed a June meeting with Miller involving Joseph Wilson, he needed to get Miller on the stand to contradict Libby. However, he COULD NOT include the June 2003 date in the subpoena to Miller because that would tip off LIBBY (not Miller) that Fitzgerald was on to him and allow him to come back to the grand jury saying he "misspoke", before Miller contradicted him. That's the key.

Now, on to Miller. I suspect Patrick Fitzgerald did not expect that Miller would deny or hide the June 2003 meeting [I say this because I don't know of any a priori evidence that Fitzgerald had which would have convinced him that Miller would collude with Libby, as she did]. That may have come as a mild surprise to him. The Miller trap, in that sense, was applied ONCE Miller was deposed by Fitzgerald prior to her grand jury appearance and just after she was released from jail. When Miller didn't mention the June 2003 meeting during her deposition, Fitzgerald must have realized she was trying to help Libby and had to get her under oath - so that he could flip her.

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