Libby's Dangerous Game

In a major scoop, the New York Sun has printed a letter from Patrick Fitzgerald to Joseph Tate, Scooter Libby's attorney. In it, Fitzgerald informed Tate that he assumed Miller was in jail because Libby had refused to give her the type of personal waiver that she required. He cited specifically Murray Waas' August 8th article in the American Prospect which, citing sources close to the investigation, stated that Libby had not provided Miller with a personal waiver. Fitzgerald also cited a subsequent letter to Libby from Representative John Conyers and other House members urging Libby to provide Miller with a personal waiver. Fitzgerald wrote:

Given that there is no public response to the
Congressmen's letter, and in light of the
comments of counsel for Miller, I had assumed
that Mr. Libby had simply decided that
encouraging Ms. Miller to testify was not in
his best interest.

Now let's think about that paragraph for a second. Libby's side wants us to believe that this was all a misunderstanding, that they provided Miller with a personal waiver over a year ago. Tate claims that he did not reach out to Miller to "reaffirm" Libby's waiver because 1) he didn't realize that she thought the original waiver was inadequate and 2) he was concerned that doing so would be perceived as obstructive conduct. But Fitzgerald himself explains why neither of these reasons makes sense. First and most obviously, Libby and his attorneys never bothered to correct the public record. They never responded to Waas' article, or the public statements of Miller's attorneys, or the letter from Rep. Conyers. As Fitzgerald points out, that lack of response is not consistent with their current claim that they've always wanted Miller to testify. Even if they feared contacting Miller directly, there was nothing preventing them from issuing a public statement indicating that Libby had already granted Miller a personal waiver. Or better yet, they could have leaked that information anonymously to the press. Doing so could not possibly have been seen as obstructive behavior, and it would have served as a rebuttal to the serious accusations being leveled against Libby in the media. The only possible explanation (that I can think of) for the lack of public response on Libby's part is that he did not want Miller to testify. He was probably worried that issuing such a statement would prompt Miller to seek clarification of Libby's waiver, which would then have cleared the way for her to testify.

Tate likely learned from Robert Luskin's mistake. Luskin, if you remember, made a comment to the Wall Street Journal on the eve of Matthew Cooper's incarceration indicating that if Cooper was protecting someone, it was not Karl Rove. That public statement prompted Cooper and his attorney to seek a personal waiver from Rove that cleared the way for Cooper's eventual testimony. My guess is that Tate did not want to see the same thing happen with Judy Miller, so he kept quiet.

As for the claim that contacting Miller to reaffirm the waiver would be perceived as obstructing justice, Fitzgerald points out that Tate had previously reaffirmed waivers for a number of other reporters, and those contacts had clearly not been frowned upon by Fitzgerald's office.

So what kind of a game were Libby and Tate playing? Well, way back in July, before I even knew that Libby was Miller's source, I wrote that the source, whoever it was, was playing a high-stakes game of chicken with the Special Prosecutor's Office. I noted that Fitzgerald likely knew who the source was and knew that the reason Miller was refusing to testify was because that source had not granted her a sufficient waiver. I observed that, given those facts, the refusal to grant such a waiver was a provocative move, one likely to anger Fitzgerald. I concluded that the only reason the source's attorney would engage in such a dangerous tactic was if Miller's testimony was more damaging to his client than the consequences of not cooperating with the investigation.

In light of what we know now, I suspect that Tate was trying to have his cake and eat it too. I think he pretty clearly did not want Miller to testify (hence the lack of effort to contact Miller or publicly rebut the statements of Miller's attorneys and journalists), but he also wanted to have a plausible story of cooperation should Fitzgerald ever accuse his client of being uncooperative (hence the ambiguous waiver communicated to Floyd Abrams last year). Fitzgerald's letter finally forced Tate to choose one or the other, waiver or non-cooperation; at that point, Tate had no choice but to "reaffirm" the waiver to Miller.

But Libby's dangerous game doesn't end there. Fitzgerald's letter specifically warned Libby not to try to influence Miller's testimony. He wrote:

[I]f Mr. Libby maintains that his waiver is valid
and he wishes to communicate that fact either
through you or directly to Ms. Miller or her
counsel (without discussing the substance of
what her testimony might be), I would not
view such a communication as obstruction.

Yet the letter Libby eventually sent to Miller had at least one (possibly more than one) paragraph that could be construed as an attempt to discuss the substance of Miller's testimony. Libby wrote:

Because, as I am sure will not be news to you,
the public report of every other reporter's
testimony makes clear that they did not discuss
Ms. Plame's name or identity with me, or knew
about her before our call.

The contents of this letter may well get Libby into further trouble. As, Jane Hamsher points out, Fitzgerald clearly stated in his letter to Tate that he did not want to be copied on any correspondence between Libby and Miller. That means that Fitzgerald's office likely had not seen this letter prior to its publication in the New York Times (which brings up the interesting side question of who leaked it in the first place). At any rate, Libby might not have been counting on his letter finding its way into Fitzgerald's hands.

In another move likely to anger Fitzgerald, on the eve of Miller's appearance before the grand jury, sources close to Libby (most likely Tate) for the first time publicly leaked the substance of Libby's grand jury testimony to the Washington Post. That's the sort of move that infuriates prosecutors. It's hard to see this as anything other than an attempt to influence Miller's testimony.

As Mickey Kaus puts its, Libby is "living dangerously." The most obvious explanation for this bizarre behavior is that Libby is in a precarious legal position. Although it's hard to know exactly what Libby's role in this affair is, we may be getting closer to the truth. At the end of my previous post on this subject, I highlighted a strange passage from a Washington Post story a few days ago. The passage seemed to be hinting that Libby knew about the origin of Joe Wilson's trip much earlier than his leaked testimony indicates. Swopa at Needlenose has done a good job digging around and analyzing what this passage means, and I encourage you to read the entire post. The bottomline is that Libby's story does not seem to add up, and that, more than anything else, may explain his bizarre behavior.