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Sunday, October 16, 2005

Judith Miller's three concerns

The Fitzgerald investigation is very much still in play, and, in addition to that Bloomberg article attesting to that state of affairs (thanks to firedoglake), I think Judith Miller's article last weekend reflected that fact. I bet you money that Miller's article was of great interest not only to Fitzgerald, but to the targets of Fitzgerald's investigation. Looking at it from the perspective of Fitzgerald's targets and their lawyers...Miller's tardily delivered essay was written in very interesting ways regarding three separate topics:

a) Miller's future testimony in a court of law if there are indictments.

b) Miller's use of the essay as a means of communicating with Libby, Cheney, her other sources and whoever is the source of the name, "Valerie Flame."

c) What the terms of Miller's agreement with Fitzgerald to come back and testify before the grand jury a second time was.

I think that Miller's article reflected all three of these concerns, and perhaps is most significant, ironically, in what message it sends from Fitzgerald himself to his targets.

First, Miller's piece reads very differently from the point of view of what it might communicate to Libby or Cheney, or any other possible target of Fitzgerald's investigation. Just as we readers found Miller's piece vague and unforgiveable as journalism...it offers little concrete to the persons of interest caught in Fitzgerald's probe. Take this passage, which I'm sure is of interest to both Libby and Cheney and their lawyers:

"Before the grand jury, Mr. Fitzgerald asked me questions about Mr. Cheney. He asked, for example, if Mr. Libby ever indicated whether Mr. Cheney had approved of his interviews with me or was aware of them. The answer was no."

That's an interesting locution. First because the example is just one of potentially many questions she was asked about Cheney. Second, her response is unclear and written in the passive voice. One can say, effectively, "the answer was no"...and hence, honestly characterize one's testimony as being basically negative, but at the same time hide from NYT readers...and Cheney and Libby...that you said something much different from a simple, "no."

For example, Libby would have no need to indicate that Cheney approved of or was aware of Miller's interviews with him if, let's say, that was already clear to everyone involved. It's also possible that Miller may have been in frequent communication with Cheney. Answering "no" to Libby indicating whether Cheney "approved of" or "was aware" of her interviewing Libby does not mean that Cheney didn't already approve of and know about the interviews. It also in no way indicates that if Cheney was a source of Miller's, that Miller did not reveal that, or information that might point to that, to the Grand Jury. A situation where Cheney communicated with Miller secretly from Libby would be possible as well.

In fact, Miller's piece nowhere says conclusively that she didn't provide information, whether about Cheney or Libby or about who she thought might have been the source of Valerie Plame's name, or might have been another source on any other matter. Take this passage:

"On one page of my interview notes, for example, I wrote the name "Valerie Flame." Yet, as I told Mr. Fitzgerald, I simply could not recall where that came from, when I wrote it or why the name was misspelled.

I testified that I did not believe the name came from Mr. Libby, in part because the notation does not appear in the same part of my notebook as the interview notes from him"

This says some interesting things.

First, it tells Libby (whether he was the source or not) that Miller testified that "she did not believe" the name came from him. Let's say you are Libby's lawyers. Would you take that to the bank? That's hardly an unqualified assurance. What would she testify to in a court of law when this came up?

Second, to the person that name did come from, whoever that is, it says some very interesting things.

a) It says that she discussed "when" she wrote it. It says that she discussed "why" the name was misspelled. It says "as I told Fitzgerald, I simply could not recall where than name came from."

None of that means she did not have extensive discussions about the likelihood of where the name came from. In fact, it's likely that she did.

b) It also tells lawyers for the "sources and targets" of Fitzgerald's investigation that the misspelled name "Valerie Flame" is an active question, and that Judith Miller was presented to the grand jury as someone who was not the source of that information, and that Fitzgerald was pursuing where it came from:

"Mr. Fitzgerald told the grand jury that I was testifying as a witness and not as a subject or target of his inquiry. "

(That's interesting in and of itself....can you be characterized as a "witness" hence not a "subject" or a "target" of Fitzgerald... yet be a "witness" because you have made a plea bargain? ie. When did Fitzgerald say this? At the first hearing after which Miller was still under the contempt order? Or perhaps at the second, after her day long meeting with Fitzgerald?)

c) Finally, Miller gives little or no information to indicate whether she gave Fitzgerald information that would be useful for him to answer those questions given his resources.

Let's say that Miller in the course of exploring the "when" and "where" of the name Valerie Flame appearing in her notebook told Fitzgerald all sorts of things that allowed her to write this "non-commital" piece about her testimony...and yet provided Fitzgerald with more firm dates and information that contradicts the testimony of others. We can't know, because there is so little there from that point of view as well. Miller's piece is all very non-commital. It does not, as far as I can tell, give anyone else involved a solid assurance of what she would testify to in a criminal case in a court of law. Even for her purported "source," a source she claims she went to jail for, it is a very hurtful and damaging piece that does not seem to justify protecting him. ie. She writes that he asked to be mischaracterized in violation of NYT policy. That's interesting.

Would Judith Miller go to jail again rather than testify in criminal court? Would she be allowed to narrow her testimony in criminal court? What predictions can lawyers for those involved in the case make based on her piece? Has Judith Miller promised Fitzgerald that she will testify in court as a condition of her second round of testimony?

I think this passage is really interesting in this regard:

"Early in my grand jury testimony, Mr. Fitzgerald asked me to describe my history with Mr. Libby and explain how I came to interview him in 2003...[snip...Miller discusses her history with Libby and then notes...]

On the afternoon of June 23, 2003, I arrived at the Old Executive Office Building to interview Mr. Libby, who was known to be an avid consumer of prewar intelligence assessments, which were already coming under fierce criticism. The first entry in my reporter's notebook from this interview neatly captured the question foremost in my mind.

That's a fascinating elision. She states that Fitzgerald asked her to testify to how she came to interview Libby...and yet she characterizes her answer with information that we've been told she didn't reveal till after her first testimony before the grand jury. ie. While Fitzgerald's question, according to Miller, came "early" in her testimony; that answer most certainly came in the second round. Further, she writes as if that meeting with Libby was essential to her story...the first question noted in her notebook "captured a question foremost on her mind."... hardly an inconsequential or poorly remembered meeting.

Judith Miller nowhere states that she did not make a plea bargain agreement with Patrick Fitzgerald. She also nowhere states that her article reflects her unfettered and free recounting of her testimony before the grand jury...a free recounting that would be in her rights as a witness. In the absence of that statement, I think we can assume, at the very least, that Judith Miller's article is not only the product of vetting from her attorneys, but that it reflects an unremarked upon pledge, if not a possible plea agreement, she may have made to Mr. Fitzgerald.

Judith Miller has elided a great deal. Espcially information that would clear her name....such as how she "discovered" the notebook that led to her second round of testimony and whether she offered if voluntarily or not. Usually if you have something unconditionally exculpatory to say about yourself, and you are free to say it, you do so.

What's interesting to me is that the "lever" used to compel that second round of testimony is not simply the possible bargaining of Ms. Miller with Mr. Fitzgerald, but could also be some clear evidence that Fitzgerald has and wants to keep secret from his targets...and so elicited a promise from Ms. Miller not to talk about it.

It would be in Ms. Miller's interest to clear her name. This article did her no favors and really did nothing to advance her claim of protecting her source. There's a logical inconsistency to why she chose to testify now that is not cleared up in her piece at all.

The most plausible explanation is the of the three forces shaping Ms. Miller's statement, the most profound may be promises she may have made to Patrick Fitzgerald. In that sense, her article, in some indirect way, may be most significant in what it communicates to Mr. Fitzgerald's targets and their laywers from Fitzgerald himself...what it tells them about what promises Fitzgerald was able to gain from Ms. Miller...and what it implies about the evidence Mr. Fitzgerald had to compel Ms. Miller to testify about her notebook and her June 23rd meeting.

Judith Miller's three concerns point to some very interesting questions that all point up ways in which Fitzgerald's investigation is still very much alive even if its outcome is unknown. I keep coming back to the reality that Miller was held in contempt with sealed evidence that only Fitzgerald and the judges involved know completely. It is that reality I keep coming back to: there is something we haven't seen, and perhaps the targets don't know, that has kept this going. Nothing we've read yet tells us what it is; but nothing has tipped anyone's hand either. These will be an interesting two weeks.

{One final thing that bugs me, as someone who likes words...is that Miller could easily have written her notes with deliberate goofy spellings as a matter of course...though her testimony seems to indicate that she didn't testify to that. (ie. she said didn't know "why Plame was misspelled")

Here's how it would work...Miller would see her notes and know how to decode them, but if someone stole her bag, let's say...they wouldn't be all that usable. That seems silly. But with "Valerie Flame" and "Victoria Wilson" both on the table it seems mildly plausible. You see, it's not hard to get back to Valerie Plame or Valerie Wilson from either of those two mistaken spellings, but it would be very hard to get to those names if you didn't know them already.

Miller is no idiot. In fact, I think her "pretending" to be one is not all that voluntary. My personal take is that her goofy "Aspen" story had an effect we can't measure...I don't think Miller is as "goofy" as that article indicates. She may, however, be too clever by half.}



  • Try today's "free feature" in the Wall Street Journal. It's a great article on Judith Miller that includes a phone interview that ends in a huff.

    Worth a look.

    By Blogger kid oakland, at 10:34 PM  

  • Excellent post. Much to chew on. I think yr a thousand percent correct to read Judy's text as one that is performing a number of tasks: self-aggrandizement and exoneration; future book-sales pumping; and, most importantly, conducting an encoded conversation with a very select readership, including Libby, Cheney, Fitzgerald, and the phantom "second source."

    BTW, via TalkLeft, here's Judy in tomorrow WSJ:

    In a brief telephone interview Sunday, Ms. Miller said she discovered the June 2003 notes in her office after being prompted to seek out answers to another question Mr. Fitzgerald had asked her. "There was an open question about something, and I said I would go back and look and see if there was anything in my notes that would address that question," she said Sunday....

    She said she found the notebook in her office. She reiterated that she couldn't recall who told her the name that she transcribed as "Valerie Flame." "I don't remember who told me the name," she said, growing agitated. "I wasn't writing a story, remember?" Asked if the other source was Mr. Rove, she replied, "I'm not going to discuss anyone else that I talked to."

    I think I'm gonna go mad before this week's through. I've become a full-on Plamaniac. This has been so long in coming that the prospect that these bastards might in fact get their karmic comeuppance is almost excruciatingly pleasurable to contemplate. And the possibility that they might wriggle free from justice yet again keeps me up at night...

    By Blogger wg, at 10:44 PM  

  • Oops. Ya beat me to Miller's self-hagiography in the WSJ. I type too slow...

    By Blogger wg, at 10:46 PM  

  • Hey wg...no worries....

    Despite my verbosity...I'm a quick draw. lol

    My out of the blue prediction: there is something coming down the pike not from the investigation side, but from a journalist side.

    I think that as indications emerge that sources were participating in "bad faith" that that will free some folks push the story forward.

    I don't worry so much about wriggling free vis a vis Fitzgerald. He's given no indication of that. However, I do think that he is capable of keeping things utterly secret that may not all be like Christmas day for Democrats....

    my hunch is that there are more twists here than anyone can fathom....including a barrage of stories that will come out simply as a result of the Fitzgerald probe maturing.

    By Blogger kid oakland, at 10:51 PM  

  • Intriguing prediction, and one I can absolutely see coming true. Here's hoping that the ripples caused by the Fitzgerald Effect are in the direction of political and journalistic transparency at least. And if that means that embedded folks like Matthews and Russert go down in Plame...er flames, then I sure won't be shedding any tears.

    And I also think yr right about the effect of Miller's article itself on the unfolding of the case. One of the things I've been surprised at in reading about Fitzgerald is just how much he uses individual daily press stories to shape his case. Remember how that idiotic quote from Luskin in the WaPo (i think) allowed Cooper and Fitzgerald to claim that he'd gotten a personal waiver? And there have been a couple of other instances where we've found out that Fitz has used news stories as the basis of his questioning. Lord knows what he'll do with Judy's opus...

    By Blogger wg, at 11:01 PM  

  • Yes...and check your email!!!

    By Blogger kid oakland, at 11:07 PM  

  • That's a very interesting and extremely thoughtful analysis. But I wonder if Miller's article is really just a message from Miller to the co-conspirators, rather than any kind of message from Fitzgerald. Remember Miller's allusion to thinking that Fitzgerald might have looked at a paper he pulled out of his pocket. That's a very peculiar statement in the context of the rest of her article. Is it a warning that Fitzgerald has something in his pocket?

    By Anonymous Anonymous, at 10:29 AM  

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