Who is Impeding Fitzgerald's Investigation: Libby or Miller?

Sorry for the lapse in blogging lately. I was on a brief but much-needed vacation. In my absence, an article by Murray Waas has helped fill in (if only a little) the gaps in our knowledge of the leak investigation.

In a previous post I noted that if Judith Miller is being truthful when she says that the person Fitzgerald wants her to testify about has not given her a specific waiver, then that person is playing a high stakes game of chicken with the special prosecutor. Thanks to Waas' article and previous reporting by the Washington Post, we can now be pretty sure that that person is Scooter Libby, Cheney's Chief of Staff. What remains unclear is whether Judith Miller is telling the truth.

So who is it that's impeding Fitzgerald's investigation? Is Libby being uncooperative (by not giving Miller a specific waiver) or is Miller lying about her reasons for not testifying? Tom Maguire (who I rely on to keep my liberal wishful-thinking in check) leans toward the latter possibility, and he may well be right, but I find his reasoning on this issue unpersuasive. Maguire writes:

"[I]n my humble right-wing opinion, [Murray Waas]
gives too much play to the 'Libby uncooperative' theory.
It is not up to Libby's attorneys to open private
negotiations with Ms. Miller's team about the
circumstances under which she will testify - folks would
have good reason to scream 'Collusion!'"

I don't buy this. Fitzgerald clearly thinks that Miller's refusal to testify is significantly impeding his investigation. If he thinks that the reason she isn't testifying is because Libby refuses to give her a sufficient waiver (which is what Miller claims) then Fitzgerald would undoubtedly be furious with Libby. I don't think any prosecutor would view such behavior as anything but uncooperative. If you are a defense attorney trying to avoid an indictment for your client, there is no way you would engage in such obvious noncooperation (unless, of course, Miller's testimony is more damaging than the perceived lack of cooperation). If Libby's attorneys have no problem with Miller testifying, they would not let the perception of "collusion" prevent them from communicating a personal waiver to Miller.

That leaves two possibilities: 1) either Miller is lying when she says she has not been given a personal waiver, or 2) Libby's attorneys are so concerned about her testimony that they are willing to incur Fitzgerald's wrath by not granting the specific waiver. If the first possibility is true, Libby's attorneys would by now have communicated to Fitzgerald that Miller is lying and that Libby has in fact given her a personal waiver. They would want to clear that up right away. Therefore, this scenario raises a few puzzling questions. First, why haven't Libby's attorneys publicly acknowledged (through anonymous sources if necessary) that Miller has indeed been given a personal waiver? Wouldn't that be in Libby and the White House's best interest? Furthermore, under this scenario, Miller would have to expect that Libby would tell Fitzgerald that she is lying about the waiver. Why would Miller's attorneys pursue such a strategy? Why would they make public statements claiming that Miller has not received a sufficient waiver? These moves would only further anger Fitzgerald and risk obstruction or criminal contempt charges.

In his comment section, Maguire writes the following in response to a reader's comment:

"I agree with this totally. I think both Miller and
Libby have incentive for Miller to keep her mouth shut.
Sign me up to make three. I have said this before - if I
were advising Libby, I would not be unhappy with a
situation where Fitzgerald is stalled. Full exoneration
would be better, but Miller's memory may be a crapshoot
(and who says full exoneration is what her testimony
would deliver?)

Perhaps I'm misunderstanding him, but Maguire seems to be suggesting that Libby and his attorneys would prefer not to have Miller testify, whether or not Libby has anything to hide. I disagree. If Libby has not done anything wrong, his attorneys would very much want Miller to testify. Her refusal to do so makes Libby look uncooperative, which is the absolute last thing you want the prosecutor to think about your client. Indeed, if Libby's lawyers are keeping Miller from testifying (by refusing to grant a specific waiver) that's a fairly desperate gambit. It's essentially daring Fitzgerald to indict their client. Such a strategy would only make sense if Miller's testimony is either VERY damaging to Libby or so essential to putting the puzzle together that indictments for anyone would be impossible without it. Either way, it would be a huge gamble on their part.

So is it possible that Miller is the one lying here, that she has in fact received a personal waiver from Libby? Yes. As JeraLynn Merritt of TalkLeft points out, Miller may actually have explained her reasoning in a CNN interview last year.

"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."

So it may be that Miller's decision not to testify has little to do Libby's waiver (or lack thereof). Miller may in fact be protecting someone else. If so, she may fear that testifying about her conversation with Libby will only risk exposing that source, someone who may not yet be on Fitzgerald's radar. Whenever I consider this possibility, however, I always return to the same questions. Why have Libby and his attorneys apparently made no effort to draw the public's attention to this obviously exculpatory fact? Why have there been no leaks or anonymously sourced stories indicating that Miller is protecting someone other than Libby? Why would Libby (apparently) have told investigators that he heard about Plame from Tim Russert, and not Miller? In a previous post, I attempted to provide possible explanations for this conspicuous silence on Libby's part, but I couldn't come up with anything that didn't seem a little too far-fetched and conspiratorial.

So where does that leave me? I'm not sure. I guess I would say that my gut feeling is that Libby is in some trouble. Whether or not Miller has engaged in shady behavior, it would seem that Libby is not behaving like someone with nothing to hide. If he had in fact given Miller the waiver she requires, I would expect Miller to stop saying otherwise and come up with a different excuse not to testify. And if she didn't, I would expect sources close to Libby and the White House to be pointing the finger at Miller and insisting that she is protecting someone else. Who knows, maybe that will happen in the near future. Until it does, however, I will continue to believe that Libby is the one impeding Fitzgerald's investigation, and that he's doing so because he has something to hide.