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Judith Miller Released, Will Testify Before Grand Jury:
Okay, now I am really puzzled. New York Times reporter Judith Miller has agreed to testify before the grand jury in the Valerie Plame investigation, and has been released from jail where she was serving a sentence for contempt of court arising from her failure to testify. According to Editor & Publisher, Miller agreed to testify after speaking with Dick Cheney's chief of staff:
  "She was released after she had a telephone conversation with the Vice President Dick Cheney's chief of staff, I. Lewis Libby, sources said. In that conversation, Libby reaffirmed that he had released Miller from a promise of confidentiality more than a year ago, sources said."
The New York Times offers this report:
  The agreement that led to Ms. Miller's release followed intense negotiations between Ms. Miller; her lawyer, Robert Bennett; Mr. Libby's lawyer, Joseph Tate; and Mr. Fitzgerald. The talks began with a telephone call from Mr. Bennett to Mr. Tate in late August. Ms. Miller spoke with Mr. Libby by telephone earlier this month as their lawyers listened, according to people briefed on the matter. It was then that Mr. Libby told Ms. Miller that she had his personal and voluntary waiver.
  But the discussions were at times strained, with Mr. Libby and Mr. Tate asserting that they communicated their voluntary waiver to Ms. Miller's lawyers more than year ago, according to those briefed on the case. Mr. Libby wrote to Ms. Miller in mid-September, saying that he believed her lawyers understood that his waiver was voluntary.
  Others involved in the case have said that Ms. Miller did not understand that the waiver had been freely given and did not accept it until she had heard from him directly.
  Am I missing something, or was the jailing of Judith Miller not about high principle and the First Amendment but about a factual dispute as to whether Dick Cheney's Chief of Staff had really waived his confidentiality? If you're Bob Bennett, Judith Miller's top-shelf lawyer, wouldn't you try to clear this up before your client spent three months in jail? Something about this seems fishy to me.
TDPerkins (mail):
"Something about this seems fishy to me."

Naw! You think.

Whether it's real or not, it's not credible.

Yours, TDP, ml, msl, &pfpp
9.29.2005 10:44pm
Jim Rhoads (mail):
Fishy doesn't begin to describe it. This could have happened months ago. With zero jail time.
9.29.2005 10:44pm
Kristian (mail) (www):
Ah, but think of the timing...right as a HUGE supreme court nimination is about to Occur, in conjucntion with the oddly timed indictment of Delay (who reports say until a couple weeks ago wasn't even the subject of the investigation) can now get Joe 'Bush Lied' Wilson's story back on the front page, possibly getting a few drive by smearings of Cheney.

No, no reason to think there was any fishy timing here...
9.29.2005 11:00pm
Igglephan:
Yes, because Judy "I was proved f______ right" Miller, just HATES the Bush administration.
9.29.2005 11:07pm
pmorem (mail):
Ah, I seem to recall Sidney Blumenthal making all sorts of statements about his grand jury testimony.
9.29.2005 11:10pm
Reason:
Orin: Be fair.
When Libby originally "waived" Miller had every reason to consider it coerced and to be discounted.
Then, as the Times story reports, inter-laywer negotiations were neeeded so that she could, without being indicted for obstruction of justice, get a direct personal waiver from him that she was willing to rely upon.
Occam's razor applied here would suggest no need to invoke theories of a vast left-wing conspiracy.
9.29.2005 11:21pm
OrinKerr:
To be clear, I'm not invoking theories of any conspiracy, left-wing, right-wing, or center-wing. I'm just puzzled as to what happened.
9.29.2005 11:37pm
Glenn:
Reason:

But one must wonder why, after repeated assurances from Libby's legal representative, Miller still considered the testimony "coerced."

Given this small but important fact, Occam's razor would tend to suggest this was more likely a publicity stunt by Miller than an act of "standing on principle". It simply makes no sense, given the information she had, that she would reach the conclusion she claims to have reached.

It is beyond the pale to suggest that Fitzgerald would have leveled obstruction charges against her for verifying the validity of a wavier that presumably would have motivated her to do the very thing for which she was held in contempt for not doing! Last time I checked, prosecutors have something called "discretion" which is designed to cover just such circumstances as she claims here.

Personally, I don't think there is a conspiracy, left-wing or otherwise going on. I think Miller simply wanted to make herself a household name, and was willing to pay a price to accomplish it. Sometimes simple ambition is the best explanation - as Occam's razor would suggest here.
9.29.2005 11:46pm
Anderson (mail) (www):
Why would Libby wait this long? And having waited this long, why would he cease waiting?
9.30.2005 12:21am
blogger:
Orin, of course you're right ... see Miller's comments pre-jail about why she wouldn't testify ... had nothing to do with voluntariness or specificity of the waiver ...

"I felt that I didn't want to start to go down the road of testifying about someone who may or may not be a source, because, at this point, the focus of Mr. Fitzgerald's inquiry has been on one person. But, as we've seen from Matt Cooper, if you make a deal to discuss that one person who may or may not have given a voluntary waiver, what about what happens when Mr. Fitzgerald's target of interest or person of interest shifts?"

"And then there's another person and another person who comes under suspicion. And, eventually, somebody might actually get to one of your sources, if they haven't already. I just decided that the position has got to be, if I promised someone confidentiality, whether or not he was a source on a particular story, I'm not going to go in and testify about what that person told me. Otherwise, I can't do my job. "

http://talkleft.com/new_archives/011790.html (quoting Miller on CNN Newshour).

So basically, Miller changed her mind after spending a couple of months in jail, with the possibility of more. That's what the power of contempt is all about. In this case, she lost a high-stakes game of chicken.
9.30.2005 12:30am
Robert Schwartz (mail):
Well, at least she is out in time for Yom Tov. Maybe her husband came home from his cruise.

I wonder if any of her mates knited her a poncho, like the one that Martha got?
9.30.2005 12:36am
Stu (mail):
Something I never understood was since she never wrote a story, he was never an anonymous source right? So she could have talked at any time without burning her source, because he never was one...
9.30.2005 12:44am
blogger:
He spoke to her as a source during a confidential interview irrespective of whether she published his remarks.
9.30.2005 12:47am
Anonymo the Anonymous:
Stu: one can still be a confidential source without the proceeds of their conversations being written about. The confidentiality isn't contingent on a story. If Miller and whats-his-name talked, and she promised not to name him, that's all that counts.
9.30.2005 12:50am
Yankee_Mark:
I agree that it appears that Miller got what she wanted ... the opportunity to wear the mantle of the "persecuted journalist" and pick-up more than 15-minutes of additional fame in the bargain. Perhaps she just REALLY likes that jailhouse food ... or both :)
9.30.2005 12:54am
cathyf:
To continue with Blogger's point, buried in the NYT article
Bill Keller, the executive editor of The New York Times, said that Mr. Fitzgerald had assured Ms. Miller's lawyer that "he intended to limit his grand jury interrogation so that it would not implicate other sources of hers."

So, back at Occam, Ms Miller knew that Ms Plame was an WMD analyst because she got that information from one or more of her many CIA employee sources. Who are rank-and-file civil servants whose lives would be totally destroyed by being ground up and spit out in the beltway scandal machine. Who probably never even knew that Ms Plame used to be a covert agent and was still on the payroll as a covert agent. Those are the sources that she is protecting. Those sources broke the law by giving info to Miller. Whether Fitzgerald goes after them is totally a matter of his descretion.

So Miller testifies that she told Libby why Wilson (of all people) was sent to Niger. One of two things happens: Fitzgerald keeps his word, doesn't ask her how she knew, writes a report saying that Joe Wilson's persecution fantasies were just that, and Plame's employer was not a secret, and so no laws were broken when it was revealed that she worked on WMD for the CIA. Or Fitzgerald is a rat and asks who told her, Miller refuses to say how she got the info, and she goes back to jail for contempt and then gets charged with obstruction of justice.

cathy :-)
9.30.2005 12:54am
blogger:
cathyf: (1) I don't think CIA empees broke the law if they didn't know Plame was covert agent bc I believe statute requires that knowledge, and (2) you can be sure Fitzg will keep his word to Bennett.

WashPost now reporting that Fitzg wrapping up and may disclose next week whether anyone being charged/pleading guilty ... Of course, may be just closing the file.
9.30.2005 1:05am
John S (mail):
The evidence is clear that Miller learned about Plame from Libby, not the other way around:

www.nytimes.com/2005/07/16/politics/16reporters.html

"Mr. Freeman declined to say what efforts, if any, Ms. Miller and her lawyers have made to obtain a satisfactory waiver.

Asked whether Ms. Miller provided information about Ms. Wilson's identity to the source to whom Mr. Fitzgerald referred, Mr. Freeman said: "Judy learned about Valerie Plame from a confidential source or sources whose identity she continues to protect to this day. If the suggestion is that she is covering up for her source or some fictitious source, that is preposterous. Given that she is suffering in jail, it is also mean-spirited."
9.30.2005 1:27am
Buck Turgidson (mail):
Yes, because Judy "I was proved f______ right" Miller, just HATES the Bush administration.

I've seen more baseless statements on this list, but it's pretty high up. What the hell are you talking about?

On the factual note, Miller is probably more guilty in this morass than Libby and she's just covering her own ass. I wish she was locked up for the duration--she certainly deserved it.
9.30.2005 3:15am
Buck Turgidson (mail):
...in conjucntion with the oddly timed indictment of Delay (who reports say until a couple weeks ago wasn't even the subject of the investigation)...

This is another scary one. Oddly timed? It's the end of the grand jury term--what's odd about that?

DeLay was not under investigation? You must have been reading press releases from his office and mistaking them for news. He's been the subject of the investigation from day 1. Which part of "crook" do you not understand?
9.30.2005 3:18am
Reason:
The Wash Post account is illuminating.
9.30.2005 3:33am
MarkH:
It made perfect sense to me. She traded a couple of months in jail for the publicity and notoriety that would put her on the gravy train for life after she published her best-selling book and hit the lecture circuit. The plan went awry when people seemed to forget all about the whole affair.
9.30.2005 5:08am
Medis:
If I understand correctly, supposedly the key event was the phonecall from Libby, which was indeed a "new" event. Perhaps the confusion is caused by the fact that Miller says she was waiting for a voluntary AND personal waiver, and Libby's lawyers claim they always represented his waiver as voluntary ... but that doesn't address the "personal" part.
9.30.2005 8:41am
Public_Defender:
Stu: one can still be a confidential source without the proceeds of their conversations being written about. The confidentiality isn't contingent on a story. If Miller and whats-his-name talked, and she promised not to name him, that's all that counts.

But promises don't, by themselves, create a privilege. I can promise a friend that I won't betray a private conversation, but that doesn't mean that a court can't punish me for keeping quiet.

What I find annoying is the journalists seem to think they're above the law. My reading of earlier NYT editorials is that they want journalists be the final arbiters of privilege claims.

Privilege claims don't and shouldn't work that way. If a prosecutor claims that one of my former clients waived privelege, I don't get the final say in deciding whether that waiver was coerced or voluntary. I can argue to the trial court. I can appeal if needed. But if I exhaust my appeals, I have a choice--testify or go to jail (and maybe lose my right to practice law).

I can respect a journalist who commits civil disobedience even if I disagree with her reasons. But part of civil disobedience is taking the punishment.

Here, journalists not only want an evidentiary privilege, they want to be the final judges of all issues of scope and waiver. They want to be above the law.
9.30.2005 8:50am
Cecilius:
I don't see this as all that vexing. Miller wanted a publicity stunt that could get her attention as some kind of crusader and possibly to create a vehicle that would finally give judicial credence to the much-lusted-after Journalist Privilege that only exists, so far, on the editorial pages of the NYT. It's not unusual at all for people to get themselves locked up in the name of some frivolous cause so that they can feel self-righteous for taking on 'The Man.' Happens about once a month in D.C. as bunches of protestors get themselves arrested for some fringe cause or another. Miller wanted attention to further her cause and got it. Once her cause fell out of the media's eye, she wanted out of jail. Nothing complicated in my mind.
9.30.2005 9:25am
Bruce Hayden (mail) (www):
What I think may be interesting is whether or not Congress ever gives the press such a privilege. My impression, from here and other fora, is that many states have such a privilege for the press, but the federal government does not, and this is a federal case.

Since this whole case came up in what appears to many Republicans as a political attempt to harm the Administration, I don't see a Republican Congress being too sympathetic to the press right now. I suspect that it is either going to take a Democratic Congress, or the MSM going after Democrats as viciously as they appear to go after Republicans.
9.30.2005 9:30am
cathyf:

(1) I don't think CIA empees broke the law if they didn't know Plame was covert agent bc I believe statute requires that knowledge,

Sure, passing that one piece of information wouldn't have been a violation of any law. But Miller's "beat" is WMD intelligence. Given the contents of her stories, she has obviously been the recipient of all sorts of classified information over the years. Since the Plame piece of information was a triviality, it must have been surrounded by a conversation. And it probably wasn't the only conversation that she had with that source. Given that the whole source-reporter relationship is about passing information, and that so much of this information is classified (especially the interesting stuff), it would be surprising if this source (or sources) had not broken the law by passing other pieces of info along that the source damn well knew was classified.

The way I understand grand jury testimony, the witness is very alone in there. No lawyer. She can go out into the hall and talk to here lawyer, but that has its own problems. Recieving classified info isn't a crime, so she can't take the 5th. It would take a really cool character to successfully stay on the narrow line between contempt and obstruction of justice. How hard Fitzgerald pushes within his parameters is up to his discretion. Given that Miller and Fitzgerald have a history, and that history also involves anonymous sources, I gotta say that Miller being very very afraid of Fitzgerald is a totally reasonable attitude.

cathy :-)
9.30.2005 10:55am
Christopher (mail):
Bruce, don't you think that asking the MSM to go after the democrats right now is asking a lot? After all they aren't the ones in power. If they are still "going after" the republicans and not the democrats at some point when the democrats are in control of multiple branchs of government then you will have a point. The press is one of the few checks we have on powerful people breaking the law or at least employing substandard ethics. Maybe power doesn't corrupt, but regardless the only corruption that is important is of people who are powerful.
9.30.2005 11:01am
erp (mail):
Robert Bennett, Bill's brother, was the Clinton's very expensive lawyer too. How many, let's have a show of hands, find that shocking?
9.30.2005 11:25am
bld (mail):
DeLay was not under investigation? You must have been reading press releases from his office and mistaking them for news. He's been the subject of the investigation from day 1. Which part of "crook" do you not understand?

Ah, but you fail to take in to account the vast left-wing conspiracy, which is nearly all-powerful and all-knowing, and coordinates through all three branches of government, controls the media, and has a near perfect ability to time events and put the right face with the right message in order to damage those good, honest, hardworking Republicans. You know, they caused Katrina, in order to make Bush look bad.

Free Schiavo!
9.30.2005 11:26am
Bruce Hayden (mail) (www):
Christopher

Of course I don't expect the press to go after the Democrats any time soon. But a lot of Republicans will tell you of hypocracy after hypocracy, of the press giving a Democrat a pass, while hounding a Republican for something a lot more benign.

The reality of it, or whether it is justified by the Republicans being in power is not really the issue. Rather, the issue is the appearance of it to the Republicans. As long as it appears to them that the press is one sidedly after them, the later are not going to get a press privilege on the national level.

Always good at digging up dirt, and what appears to be dirt, Michelle Malkin today in an article entitled "Give Harry Hell" quotes Harry Reid's home town paper disclosing that friends of his, who were the recipients of federal funds (thanks to Reid) for running halfway houses, have apparently diverted over $400,000 into their own pockets.

Which is the press more likely to follow, this case involving Minority Leader Reid, or the HCA sales case involving Majority Leader Frist?
9.30.2005 12:11pm
Igglephan:
Buck, she wrote stories saying that Iraq most deinitely had weapons of mass destruction, which, while not decisive in leading to invasion, certainly helped the administration's case. These particluar stories, as it happens, were not true. When this was increasingly becoming clear, Judith Miller offered up the statement I quoted, clearly thinking of the Iraq invasion as a vindication of her journalism (much like Hearst must have viewed the Spanish-American war). To imply that she would then testify before the grand jury at precisely the time most opportune to embarass the White House marks the locus of the ridiculousness, not anything I said. I apologize for not holding your hand through the process of drawing inferences from available facts sooner.
9.30.2005 12:28pm
lee piazza (mail):
HYPOCRACY?--rule by hippos?
9.30.2005 2:22pm
David M. Nieporent (www):
What I find annoying is the journalists seem to think they're above the law. My reading of earlier NYT editorials is that they want journalists be the final arbiters of privilege claims.

The Times definitely thinks it is above the law -- not just in matters such as privilege, but in matters such as campaign finance.

But what has bothered me most about the Times' crusade for Miller is their disingenuous argument that she should be immune because "49 states recognize a journalist-source privilege." The Times ignores the fact that few states have an _absolute_ privilege, and that the circuit court panel that heard her case also stated -- albeit in dicta -- that even if there were a qualified privilege, the government would have met its burden in the Miller case.
9.30.2005 2:22pm
M. Watkins (mail):
This was designed to make her a martyr so that it would create a whirlwind of public outrage and lead to a federal shielding law being passed or a made-up constitutional amendment. Hear those crickets chirping? So do I, needless to say it didn't work.

How many times after the first highly publicised visits from such luminaries as tom brokaw and others did they return to see poor judith? My guess is zero.

After the first month they probably figured it wasn't going anywhere but they couldn't all of a sudden have turned around and have her testify it would look too obvious.
9.30.2005 2:52pm
Nobody (mail):
Bruce Hayden wrote:

Since this whole case came up in what appears to many Republicans as a political attempt to harm the Administration


Bruce, remind me of the name of that left-wing partisan Democrat who appointed Fitzgerald to investigate this affair. His name seems to have slipped my mind.

Oh yeah, now I remember. It was James Comey. Deputy to John Ashcroft. And who appointed Comey to that position? Noted pinko George W. Bush. Clearly, Fitzgerald's investigation is a political attempt to harm the administration.

(As Homer would say, "In case you couldn't tell, I was being sarcastic.")
9.30.2005 6:29pm
clarice feldman (mail):
Why didn't the NYT lawyers move to quash the subpoena on the grounds that there was no violation of criminal law involved? After all no reputable commentator thinks Agee applies.

Why didn't her lawyers ask the Prosecutor for permission to contact Libby's lawyer earlier to get Judy the full, full, I mean really full waiver she claimed to need?

I think she was afraid that the Prosecutor would go into her real sources(and Libby knew little according to both the Wash Po and NYT reports). I think the full waiver was a pretext. I think what she wanted was to run out the clock so that after she confirmed Libby's account, the Prosecutor under DOJ guidelines wouls not have time to fully probe all other sources before providing her yet another narrow subpoena also mandated by those guidelines.

I think Novak's source was in the CIA--Maybe Tenet. And I think so were hers.
9.30.2005 8:54pm
Buck Turgidson (mail):
Ok, I've had enough beer in me today to tell exactly what I think (in case I held anything back before).

Anderson,
Why would Libby wait this long? And having waited this long, why would he cease waiting?

He didn't wait at all. It was all in Miller's head. She imagined that she did not have permission to disclose. Why Fitzgerald would coddle this woman is beyond me--she not only got a deal, but a part of the deal was that she would only be asked about one person (I guess, Fitz wants to clear Libby and nail Rove).

Let's face it, guys, Miller is a self-promoting bitch who got tired of the slammer after thinking that she could skim some profits by posing as a martyr.

Igglephan,
I apologize for not holding your hand through the process of drawing inferences from available facts sooner.


Please keep your hands to yourself, I don't know where they've been and what you've been doing with them. It is quite clear that Miller has nothing against the WH. At best, she is classic MSM opportunistic suck-up (sycophant), who tried to make her career by playing Bush supporter in a nominally liberal newspaper. It backfired. She's in jail. She's desperate to get out and desperate for attention. She thought the story would be in the news awhile longer, but Katrina trumped her ass. So she wants to be back in the news. Too bad!

Bruce,

Since this whole case came up in what appears to many Republicans as a political attempt to harm the Administration...

It's almost funny how true believers try to repeat the talking points coming from on high. This is nonesense! Wilson was a diplomat first, American second. He did not become a partisan Democrat until these asswholes went after him. If anyone had a "political attempt to harm" it's Rove &co. Throwing away the key on him would not be enough--I'd run him over with a steamroller as a foremost enemy of democracty (with a small "d"). ...Or set him up for a one-on-one for a chains-and-leather session with Jimmy Guckert--I'm sure he'll love it. I can just imagine Karl on all fours squealing like a pig, can't you?

But never mind all that. Think, Bruce--who pressed for the investigation? Was it Democrats? No. Was it Wilson? No. It was the god damn CIA. Guess what?! They thought there was plenty of evidence that someone really blew it and they wanted the bastard flogged big time. Is CIA a bunch of partisan Democrat hacks? And Clarice Feldman got it right--who appointed Fitzgerald in the first place? And was FGitzgerald not a Republican? The world of True Believers is truly amazing.

Also Bruce,

Of course I don't expect the press to go after the Democrats any time soon. But a lot of Republicans will tell you of hypocracy after hypocracy, of the press giving a Democrat a pass, while hounding a Republican for something a lot more benign.

Perhaps it would help if you picked up the NYTimes once in while to see for yourself. Same day rat-boy DeLay was indicted, the Times had a Local Front Page story on the Brooklyn Dem Party boss getting convicted. Gee, I guess, they don't cover Democrats!

And the press didn't really go after Toricelli and McGrevey, did they? You, lying bastards! If anything, the MSM has been soft on DeLay, Blunt, and the rest of the Corruption Central. But when the dominoes begin to fall... Watch out! And, by the way, why is it that Dreier's promotion was withdrawn within 20 minutes of being announced? Not corrupt enough? I know what the liberal bloggers think. But what do you think?!

Robert Schwartz,

Well, at least she is out in time for Yom Tov. Maybe her husband came home from his cruise.

Perhaps you are right. Maybe she was worried that her husband was boning an intern. Nah...
9.30.2005 11:14pm