Plamegate Update
Murray Waas has another major scoop in the Plame-leak investigation. His new article in the National Journal seems to confirm the so-called "mousetrap theory" first advanced by Jane Hamsher and Empty Wheel. In short, Fitzgerald caught Judith Miller being less than candid in her initial grand jury appearance, which led to her sudden "discovery" of additional notes and necessitated a return trip to the grand jury. Billmon also deserves credit for correctly guessing the way in which Fitzgerald found the bait for his mousetrap, by subpoenaing the sign-in logs at the Executive Office Building.
If there was any question remaining as to whether Judith Miller should be fired, this pretty much answers it. Not only does it appear that she attempted to mislead a federal grand jury, but it is indisputable that she misled the readers of the New York Times. Her self-serving story in Sunday's Times conveniently failed to mention the chain of events that resulted in her discovery of additional notes or why she was forced to "clarify" her previous sworn testimony.
But while Waas' article seems to explain Miller's situation, it leaves me entirely baffled as to Libby's. Particularly this line:
It's late, so I'm not thinking particularly clearly, but it seems to me that the only way to reconcile these facts is if Libby's testimony regarding the June 23 conversation took place AFTER the three things mentioned above, i.e., sometime after Miller's first appearance before the grand jury on September 30. But how could Libby have slipped into the courthouse without being noticed? Maybe Fitzgerald "pressed" Libby about the June 23 conversation in a private proffer session, i.e., not in front of the grand jury. If so, then Waas (or his source) may just be using the term "testify" somewhat loosely. That's the best explanation I can come up with at the moment. If anyone out there has a better one, please share it.
Meanwhile, the New York Times gives us this assessment of the state of the investigation:
Stay tuned.
If there was any question remaining as to whether Judith Miller should be fired, this pretty much answers it. Not only does it appear that she attempted to mislead a federal grand jury, but it is indisputable that she misled the readers of the New York Times. Her self-serving story in Sunday's Times conveniently failed to mention the chain of events that resulted in her discovery of additional notes or why she was forced to "clarify" her previous sworn testimony.
But while Waas' article seems to explain Miller's situation, it leaves me entirely baffled as to Libby's. Particularly this line:
As National Journal reported on October 11,But as Swopa points out, that's not what Waas reported in his October 11 article. That article stated that Libby did NOT discuss the June 23 conversation in his prior grand jury testimony and that Fitzgerald only just recently learned of the June conversation. Nothing in that article indicates that Libby discussed the June 23 meeting after being "pressed on the issue." Did Waas really mean to say this? Apparently so, because a few paragraphs later he writes:
Libby also did not disclose the June 23 meeting
to investigators and the grand jury until he
was pressed on the issue.
But Libby testified regarding both theSo Libby did testify about the June 23 meeting. But when? And how can that be reconciled with Libby's September 15 letter to Miller (which only mentions the July conversations)? Or his leaked grand jury testimony the night before Miller's first grand jury appearance (which also only mentioned the July conversations)? If Libby had already testified about the June conversation, why not let Miller know that? And there's also the matter of Fitzgerald's September 12 letter to Libby's attorney. In that letter, Fitzgerald mentions that Libby has testified before the grand jury only twice (both in 2004) and that he testified about two conversations with Miller, one on July 8 and the other on July 12.
June 23 and July 8 meeting that he had
never named Plame nor told Miller that
she worked for the CIA, because either he
did not know that at the time, or, if he had
heard Plame was a CIA employee, he did
not know whether it was true.
It's late, so I'm not thinking particularly clearly, but it seems to me that the only way to reconcile these facts is if Libby's testimony regarding the June 23 conversation took place AFTER the three things mentioned above, i.e., sometime after Miller's first appearance before the grand jury on September 30. But how could Libby have slipped into the courthouse without being noticed? Maybe Fitzgerald "pressed" Libby about the June 23 conversation in a private proffer session, i.e., not in front of the grand jury. If so, then Waas (or his source) may just be using the term "testify" somewhat loosely. That's the best explanation I can come up with at the moment. If anyone out there has a better one, please share it.
Meanwhile, the New York Times gives us this assessment of the state of the investigation:
Mr. Rove and Mr. Libby have been advised
that they may be in serious legal jeopardy,
the lawyers said, but only this week has
Mr. Fitzgerald begun to narrow the possible
charges. The prosecutor has said he will not
make up his mind about any charges until
next week, government officials say.
With the term of the grand jury expiring in
one week, though, some lawyers in the case
said they were persuaded that Mr. Fitzgerald
had all but made up his mind to seek
indictments. None of the lawyers would
speak on the record, citing the prosecutor's
requests not to talk about the case.
Stay tuned.
posted by A.L. at 11:56 PM
12 Comments:
Good job.
I am sti=uck on the fact that the subpoena also only mentioned two conversations.
A possible hint - the letter from Fitzgerald says that Libby mentioned "relevant" conversations with Miller as July 8 and July 12.
*MAYBE* Libby was asked about the June 23, based on logs, daily diary, or whatever, and said they talked about something else.
Now, why wouldn't Fitzgerald subpoena her to verify that? I have no idea.
Tom Maguire
From the Nat Journal:
Libby has told **federal investigators**, according to legal sources familiar with his testimony, that he told Miller at the meeting that he had heard that Wilson's wife had played a role in Wilson being selected for the Niger assignment. But Libby testified regarding both the June 23 and July 8 meeting that he had never named Plame nor told Miller that she worked for the CIA, because either he did not know that at the time, or, if he had heard Plame was a CIA employee, he did not know whether it was true.
END
Well, there was something in the times about Libby going back to meet with Fitzgerald after Rove finished Round IV.
SO that may be when he told investigators his version of June 23.
Tom Maguire
Agreed, nice job. It’s tangential, but I wanted to add a note on the perjury trap theory. It seems like Fitz did indeed withhold his knowledge of the June meeting from Miller until after she omitted it from her testimony. But the gloss (not yours, but a possible one that could be placed on the theory) that Fitz did this to trap Miller herself seems in need of questioning. Assume that, before Miller testified, Fitz was interested in Libby’s potential coaching of her to not talk about the June meeting (his suspicions being aroused if for no other reason than by Libby’s September 15 letter). As has been pointed out elsewhere in the blogosphere (sorry I can’t recall exactly where), there’s no better way of solidifying a case of tampering/coaching than to show that the witness (Miller) actually followed the orders that you allege were given. So Fitz lets her testify without prompting about the June meeting, and, arguably per Libby’s telegraphing, she omits the June meeting. Thus it seems at least possible that the real purpose of Fitz’s withholding of his knowledge of the June meeting from Miller was to dig a deeper hole for Libby, and not to spring a trap on Miller per se. (Of course, a by-product of this may indeed be a potential perjury charge against Miller, but that charge looks thin and, at any rate, all indications have been that Fitz, for whatever reasons (future utility, etc.), views Miller as a source only, and not a target.)
Well - Fitzgerald is not going to (a) have Miller as a star witness againt Libby while (b) trying her for perjury.
Secondly, Miller is a star witness *for* Fitzgerald in an Islamic charity case in Chicago (Salah, IIRC). Yes, I know, she is a defendant in a different Islamic charity case - those two have a complicated relationship.
Thirdly, when did Fitzgerald get evidence of this June meeting? Surely he got the entry logs years ago. So why not ask Libby?
My guess - she signed in to see someone else; that person told Fitzgerald that said nothing relevant.
Libby was never asked about a June meeting (but probably gave a general "As best I recall, I only met with Judy twice").
Fitzgerald showed her the entry log, said, "You signed in to see X; did you see anyone else?"
And she eventually "remembered" Libby, after asking to check her notes. Since the date was not covered by the subpoena, she had not prepared testimony, etc., so all her answers were hedged (unless she ignored the coaching from the high-priced legal talent.)
Never a perjury threat, although it is interesting to see how many want to believe that. Well, there seems to be a limitless appetite for Judy-bashers.
Meanwhile, while everyone focuses on Miller, this is either really bad for Libby, or dreadful.
Tom Maguire
Tom,
I think we’re in agreement here, but I leave it to you, with greater knowledge of the facts, to correct me if need be. I definitely agree that Miller couldn’t coherently be prosecuted for perjury and be a star witness, either in this or the Chicago case. That’s sort of what got me thinking about the perjury trap’s goal in the first place, namely that Miller is likely to be too useful to Fitz as a witness for him to want to set an elaborate trap so he can prosecute her.
As I read your comment, the only potential point of difference is on whether Miller actually and in good faith forgot about the June 23 meeting, or whether she arguably took Libby’s coaching and intentionally omitted it. I have to say, I never considered your point that Miller might have genuinely forgotten about the June 23 meeting, and you may be right. I guess I really don’t have a view on which is more likely. (Like you, I’m not a reflexive Judy-basher (or not as reflexive as some, I guess), a fact which also led me to question the perjury trap as being a trap for Miller; the distaste for her (admittedly distasteful) acts seems to have led some to wish for/assume her legal jeopardy, but I’m not quite convinced that’s the best explanation of what’s going on.) That said, I agree with your conclusion – this is either really bad for Libby, or dreadful. It’s dreadful, of course, if Miller actually did conform her testimony to Libby’s coaching. It’s merely really bad, I guess, if the best defense Libby has to claims that he was coaching Miller not to mention the June meeting is that his coaching didn’t work but she just coincidentally forgot the very thing he was coaching her not to mention. That defense seems like it would take some real good lawyering to get across.
HAL
HAL and Tom,
I agree with your assessment that Fitzgerald was never trying trap Judy into committing a prosecutable offense. Prosecutors don't like to prosecute mere witnesses. But they do like to scare them into being fully cooperative. I think that Fitzgerald may have indeed set up a trap of sorts for Miller, but I don't think his goal was to prosecute her for anything. If he trapped her, his goal was likely (as you say) to test Libby. As you say, the best evidence of witness tampering is when witnesses actually do respond to the coaching.
I also think it may have been a way of leveraging Miller. If Fitzgerald has something he can hang over her head (even if it is minor), he can use that to make her a more cooperative witness. He can also use that to get her to testify and produce notes about conversations that weren't included in his subpoena (like the June conversation). If he hadn't set the trap, so to speak, he might have had to jump through a lot more hoops (i.e. getting a new subpoena, etc.). This way, he can use her apparent lack of candor before the grand jury as a way of getting her to answer any question he wants an answer to.
That occurred to me, anon lib, and I agree that that's another motivation/benefit for Fitz to have withheld his knowledge of the June meeting. Just soften Miller up by scaring the bejeesus out of her. I guess it's hard to say which would have been the primary reason Fitz did it, since either would presumably have been sufficient from his point of view. But I emphasized the Libby jeopardy aspect because I think he had to have been looking into whether Libby was coaching Miller as an independent matter, and this makes for nice circumstantial evidence for his case. Were I a betting man, I'd be more inclined to wager that that was his lead motivation, though admittedly they are essentially inseparable. At any rate, I think we're in agreement that whatever the motivation was, it was not a desire to actually charge Miller with anything.
HAL
I agree that that's another motivation/benefit for Fitz to have withheld his knowledge of the June meeting.
I am utterly stumped as to how Fitzgerald could have had that knowledge and not previously asked Libby, which is why I think he did not have it.
As to whether Judy intentionally forgot the June meeting... way back when, my theory was that she *knew* Libby had a problem with his testimony just by looking at the subpoena, which only had July dates.
So I'll bet she intentionally danced a bit - after all, in one theory she ought to do the principled First Amendment thing and go back to jail while she fights Fitzgerald over a new subpoena (and loses).
But I don't think jail suited her (and I don't blame her).
So maybe she went with a face-saving, gee, I might have met him, let me check. Fitzgerald gave her and Bennet a pep talk afterwards, she found the hell out of those notes, and here we are.
From the National Journal, it is only the lead paragraph that says Fitzgerald *knew* they had met on June 23. The rest sounds like she waffled about whether she had been to the EOB at all on June 23, then admitted she had been, then agreed to see who she talked to.
EXCERPT:
When a prosecutor first questioned Miller during her initial grand jury appearance on September 30, 2005 sources said, she did not bring up the June 23 meeting in recounting her various contacts with Libby, the chief of staff to Vice President Cheney. Pressed by prosecutors who then brought up the specific date of the meeting, Miller testified that she still could not recall the June meeting with Libby, in which they discussed a controversial CIA-sponsored mission to Africa by former Ambassador Joe Wilson, or the fact that his wife, Valerie Plame, worked for the CIA.
When a prosecutor presented Miller with copies of the White House-complex visitation logs, she said such a meeting was possible.
END
Does that last sentence make sense in the "Fitz knew" story: She is looking at logs saying she signed in to talk to Libby, and then she admits a meeting was "possible"?
Maybe. Maybe she wants to suggest that, well, I can't remember if he cancelled.
But my story works fine - they said, "who did you talk to on the 23rd when you were at the EOB?"
She says, "I was where"?
They show her the logs proving she was in Libby's building, and eventually they resolve it.
Tom Maguire
Tom,
Your point is a good one. Consider this possibility, though. Perhaps Fitz has had the EOB sign-in sheet for a long time, and therefore suspected that Miller and Libby met on June 23. Armed with that bit of information, he likely wanted to get both Libby and Miller's story before presenting them with his evidence. But Libby did not mention any June conversation in his two grand jury appearances in 2004. This may have been why Fitzgerald was so eager to get Miller's testimony. He thought he might have caught Libby lying about something very important. But he didn't want to confront Libby with the information until he had Miller's version of the story. So he waited and waited and finally got her to testify. Only then did he confront both her and Libby with the evidence he had of a meeting that neither of them had mentioned. Miller came clean and provided notes of the meeting. Fitzgerald then went to Libby and "pressed" him about the inconsistency.
Does that seem plausible?
Agreed, I was just thinking on my ride home that I now see Tom's point, where I had not appreciated it before. It's good. I'll let you guys with the better command of the facts figure this last question out. I guess it in part turns on the (presently unknowable, I believe) question of whether or not the log specifically identified Libby as Miller's visitee. If it did, al's theory seems plausible. If it didn't, Tom's does. But that may be wildly wrong, I have no idea. My head hurts. I'm going for a run.
HAL
As has been pointed out elsewhere in the blogosphere (sorry I can’t recall exactly where), there’s no better way of solidifying a case of tampering/coaching than to show that the witness (Miller) actually followed the orders that you allege were given...
Story of my damn life, I tell ya ... ;-)
http://www.needlenose.com/node/view/2137
Just wondering what you think about David Corn's recent suggestion that Fitzgerald might deliver SEALED indictments.
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