Let's Make a Deal: A Word on Judy's Timing

by emptywheel

There's been a lot of discussion on the timing involved in Judy's deal with Fitzgerald. Was it Franklin's plea bargain? Was it DeLay's indictment? Of course, none of these make sense, since she has been working on a deal for almost a month and a half.

Actually, Murray Waas tells us what the catalyst to Judy talking was. In large part, his own article.

A short time after that story appeared (indeed a very, very short time-- about a week later), Miller's attorneys and Libby's attorney, Joseph A. Tate, began prolonged negotiations that would lead to Libby finally providing her a personal waiver that would lead to her release and testimony. There is quite a backstory there, and my then unnoticed Prospect story paved the way, in large part, I am told for those negotiations.

My guess, from this, is that Judy used the news that Scooter had already talked about the meeting himself as an entre to start negotiations. Moreover, I imagine she felt a little exposed here. Imagine going to jail to protect a source, but in so doing, allowing him to tell his side of the story but not you to tell your side of the story. I think that'd make me a whole lot less willing to take the fall, particularly if I felt Libby had misrepresented the story. Particularly if I were as interested in self-preservation as Judy.

But this also means Judy started negotiations with Tate at precisely the same time that Bolton visited her. Waas' article came out August 8. Negotiations started a week later, on August 15. Which is precisely the day Arianna had the scoop about Bolton's visit.

Me, I'm at least as interested in what went on in the last two weeks as I am in what started the negotiations. Judy had her conversation with Libby over a week ago.

After the phone call from Libby on Sept. 19 or 20, Tate said, the lawyers wrote a letter to Fitzgerald indicating Miller accepted Libby's representation that the waiver was voluntary.

But that wasn't enough to get her to talk. Judy sat and sat and sat for over a week. I guess Judy wasn't really telling the complete truth when she said hearing from Libby himself reassured her his release was voluntary.

What really seems to have been the proximate cause of her talking is not her conversation with Libby, but a  back-and-forth between Tate, Libby's lawyer, and Abrams, Judy's (and the NYT's) lawyer.

On Sept. 16, Mr. Tate wrote to Mr. Fitzgerald saying his conversations with Mr. Abrams last year were meant to assure Ms. Miller that a broad waiver that Mr. Libby signed in late 2003 was not coerced and applied specifically to Ms. Miller.

On Thursday, Mr. Abrams wrote to Mr. Tate disputing parts of Mr. Tate's account. His letter said although Mr. Tate had said the waiver was voluntary, Mr. Tate had also said any waiver sought as a condition of employment was inherently coercive.[emphasis mine]

Abrams writes a letter to Tate on Thursday, Judy walks on Thursday.

It looks to me like Scooter went through all the motions of releasing Judy, even calling her and telling her to talk. Along with Tate's mock surprise that Judy's incarceration, punishment for contempt because she wouldn't reveal details of a conversation she had with a BushCo official the week of July 6 2003, had anything to do with the conversation Judy and Scooter had on July 8, 2003.

"We told her lawyers it was not coerced," Tate said. "We are surprised to learn we had anything to do with her incarceration."

But they retained this technical out--that so long as the release was made as condition of employment, it would not be valid. That is, until yesterday, Libby was trying to make claim, to Fitz, that he had released Judy, without actually doing so.

Comments

[DemFromCT]

So let me get this straight. Judy didn't really have to be in jail... but once she decided it was in her best interest to sing, the voice lessons started in earnest. And her principled first amendment stand that Daniel Schorr and others (but not Doug Jehl, to his credit) bought into is just Judy blowing smoke out her butt trying to proptect herself, sice it was clear she was being set up and dropped like a hot potato by libby.

Gee, i wish we all get to hear her concert when she sings. Oh, well, the summary will be broadcast all over the internets.

[emptywheel]

This makes me want to know the content of the Judy-Bolton prison diaries even more. After all, how do you send a message saying, "Sure, out Libby, but make sure you still protect our earlier conversation" without the prosecutor considering it an incriminating discussion. And did he also give them permission to speak, reassurances he wouldn't slap an obstruction charge on them?

There also seems to be some contention between Abrams and Bennett. Recall that Arianna said the NYT was rethinking its stance once it got more realistic advice than Abrams was giving. Bennett started negotiations with Tate, not Abrams. So maybe it was Bennett giving the Times the dose of realism. But everything seems to have come down to Abrams' negotiations in the end.

One question I've always had, too, was whether there'd be a time when Abrams or Bennett split off, one defending the NYT the other Judy. Or something like that. I would have thought Abrams would be the NYT guy, and Bennett (big celebrity lawyer) the Judy guy. But maybe I've got it reversed.

[emptywheel]

Oh, and one more thing.

I think I'm vindicated in my supposition that NYT had found a loophole in the work for hire assumptions regarding Judy's notes. By most standards, they would own Judy's notes on a story. We know, because she handed over her notes, that she DID take notes of the July 8 meeting with Libby. But NYT has always been able to argue they don't have anything pertinent to the subpoena.

Doesn't mean my speculation that the had put her in some kind of disciplinary status is right. But it does mean they were able to argue compellingly to Fitz that those notes, which under normal circumstances would belong to the NYT, don't belong to them.

[firedoglake]

I was a little confused about the part where Fitzgerald gives Judy assurances he wouldn't slap her with obstruction charges for her conversations with Libby; when I first read it I thought it must refer to her conversations with Bolton. That conversation feels like it must be key in some way still unknown.

Regarding Abrams -- it makes sense that he wrote the final letter not because he was in charge of the negotiations (she'd still be sitting there come Christmas, IMHO) but because he had conducted the conversations with Tate earlier in the game and it was on him to set the dissembling straight. According to the Reuters article, he's been on the shelf, and had not talked to Fitzgerald as of two weeks ago. Sounds like he got dragged back in by Bennett to clean up his earlier mess.

[Mimikatz]

Libby and Rove have both said they heard from "reporters" or "a reporter" that Wilson's wife was a CIA agent. But here's (again) the summary of Libby's testimony regarding his conversations with Miller as reported by the WaPo today:

"At the time, she asked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq attempted to buy uranium in the African nation of Niger. Libby, the source familiar with the account said, told her the White House was working with the CIA to find out more about Wilson's trip and how he came to be selected.

"Libby told Miller he heard Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said.

"Libby had a second conversation with Miller on July 12 or July 13, the source said, in which he told her he had learned that Wilson's wife had a role in sending him on the trip and that she worked for the CIA. Libby never knew Plame's name or that she was a covert operative, the source said."

Note, in the first conversation Libby tells Miller that Wilson's wife had something to do with the Niger trip. In the second conversation Libby tells Miller that Wilson's wife is a CIA agent.

Note that neither time does Libby say he heard the info from Miller--he is telling Miller. I have assumed that the source was Libby's lawyer. Maybe all Fitz wants is for Miller to corroborate that she didn' tell Libby. Then they have Libby for an earlier fabrication to Fitz's investigators or the FBI. Rove too.

This still leaves out who told Libby between 7/8 and 7/12 that Wilson's wife was CIA. Again, the prime culprit is the INR memo, which could have been read from AF 1 to Libby and/or Rove by someone who didn't pay close attention to the little "S" for secret by the paragraph, or didn't think it applied to them. Unless that person told Rove/Libby that it was secret, they might not have known either, although one should expect that the identity of CIA agents is secret. Was the person who saw/read the memo authorized to see all of it? Not necessarily. So the issue is still who told Novak, and how did the info originally get to the smearers? INR memo or Fleitz/Bolton?

It would seem that Fitz would only need Miller to complete a case against someone. If she told them, they are off the hook. Why would Fitz need Miller's testimony to wrap up a no-indictment report? Seems like a lot to put someone through, and Miller wouldn't go to jail to withhold exonerating info.

If the above summary of Libby's testimony is right, Libby is in trouble. Of course, it could have been a summary by MILLER's lawyer trying to pin it all on Libby and giving him a heads up that that was what she was going to do. In which case we don't know if it is correct as to what Libby testified to or, if so, if Libby testified truthfully. Wheels within wheels.

[DemFromCT]

Wheels within wheels.

An engine powered by CYA. nice guys to work with, these goodfellas.

[dksbook]

I really appreciate ya'll's fantastic work on this, but I am confused by the "condition of employment" thing. Could somebody elxplain it's significance? I probably missed that diary - I've been on the road some lately, but I would appreciate somebody explaining it.

[emptywheel]

dksbook

Last year, Fitz originally subpoenaed NYT and Time in addition to their reporters to receive any materials they might have related to conversations that week. The NYT was able to give some explanation that was convincing enough that when contempt citations were issued, NYT didn't receive one. Time magazine did receive such a citation, which is why they released Cooper's notes, which if you recall preceded his testimony. In other words, Time broke, which made it pointless for Cooper to hold out any more.

We know Judy was working on a story, so there must be an unusual reason why NYT wouldn't own her notes for that story. Normally, a journalist's notes are considered work for hire and therefore the property of the company paying her to do her job. But somehow, NYT was able to argue that that wasn't the case this time around.

As I have suggested, Judy was probably off the ranch when she was working on this story. She wasn't supposed to work on anything alone, without her two source buddies. So my speculation has always been that the NYT simply told Fitz, "Judy was under discipline at the time she interviewed Source A, she was only supposed to be be working on Story A, B, and C. So if she has any notes on Story D, then it's not work she was doing for us."

The interesting thing about that is that Scooter claims Judy was talking to Libby for a story on WMD. Stories on WMD or on the anthrax case were the only things Judy was working on at that time. She published her final summary of Iraq's WMDs just after the leak hit. So it is plausible that she was talking to him about WMD. But it would mean NYT should have owned those notes.

[ReddHedd]

Having caught the "Judy SPeaks After Testifying" show, I have to say that the one thing that leapt out for me from the whole performance was that she has not yet been home. Which means that Judy got out of jail yesterday afternoon and was remanded to the custody of the US Marshall Service for the evening to ensure her presence in court for testimony this morning. Unusual for a cooperating witness who is not accused of any criminal behavior, to be frank, or who is not a risk for flight. What does Fitz know about Judy that we don't know? This is getting seriously intriguing. A Federal Judge would not remand her custody to the Marshall's service without a reason to do so -- they don't waste resources for show, there has to have been a reason for sequestration. That La Miller was tired this morning says they were doing debriefing last night and getting her statement on record before testimony today -- and that sounds like it was a statement a bit longer than "Scooter Libby told me about Valerie Wilson Plame." doesn't it? Veddy, veddy interesting...

[emptywheel]

My favorite part of the WSJ coverage on this?

Reached last night, Arthur Sulzberger, Jr., publisher of the Times, said, "I can confirm that Judy Miller is out." He declined to elaborate except to say the reporter was "enjoying a steak at dinner, which you are interrupting." The New York Times is owned by New York Times Co. [emphasis mine]

Some people, after they got out of jail after 3 months, would go home and have a quiet dinner with their husband. Especially after reading those nasty rumors about the cruises and so forth.

But not Judy. She went and had dinner with Sulzberger.

Now, she and Sulzberger are old friends. And Sulzberger's presence doesn't mean her hubby wasn't there too.

But what does it say that he was treating her to a big steak dinner? A thank you for having finally agreed to testify and get the NYT out of its little legal trouble? A strategy session for how they were going to turn this embarrassment into a PR win? Or did Sulzberger just promise Fitz he would watch over Judy until she testified? Inquiring minds want to know.

[DemFromCT]

I also caught the media presser. All on principle, she says. hopefully within the week we'll know if that's so. She's got to know that quite soon, it all comes out.

What is she and Sulzberger playing for, if in a week or two, the facade disappears?

[emptywheel]

RedHedd,

Is it possible Judy's still up on charges (like conspiracy) but she is getting consideration for having testified here? It seems likely that she still was the carrier of some information to Libby, in which case she might be liable. But if she were going to be charged, would she get to wander around for a little while?

DemFrom,

Judy and Sulzberger are saving the Grey Lady from having to lift her skirt so we can all see she wears dirty underwear. What will likely NOT become public is the way NYT sat on this story, after telling Judy not to publish it. What will likely NOT become public is the remarkable "embedded" relationship the NYT has with the Iraq war cheerleaders.

Which is why Sulzberger probably paid for the steak.

[obsessed]

If she was sequestered overnight, where did the steak with Sulzberger fit in? Did he order it to go and bring it to her? Were there federal marshalls at the next table?

[jerry]

Interesting that she got both a written letter from Libby and the telephone call, why not a visit?

[ReddHedd]

Emptywheel, it is entirely possible that Judy could be looking at criminal liability, especially if Fitz has information that she might have been involved in any cover-up scheme -- that would leave her open to conspiracy and obstruction and potentially false statements to the FBI charges, along with any co-conspirators. Or to perjury if she makes statements under oath to the SGJ that are false and Fitz can prove that she did so knowingly. Or...well, you get the picture. No indictments have been issued that we know of (they could always be under seal, so you never know...), so Judy would be released until the SGJ completes its consideration of the evidence. Here's hoping we know something soon -- the suspense is killing me!

[ReddHedd]

btw, for everyone who hasn't spent time on the phone with people in prison or visiting them in the facility in person, EVERYTHING is pretty much recorded. While you are on the phone, you can hear periodic clicks that tell you your conversation is recorded -- and that is true for attorney calls as well, I can attest to that from calls between clients and myself in the past. When you visit, if you are visiting in the usual "between the glass booth" area, the phone that you use for speaking (like you see on tv) is also recorded. I would bet money that Judy's visits and calls have been recorded throughout her stay, and that Fitz already has an order in hand for a wiretap now that she is out for all her known numbers. I would.

[emptywheel]

Sorry dksbook,

I answered the wrong question. It appears that, since Bush said all WH employees had to give waivers, Tate said that didn't count. It was coerced. The implication being that Libby would have lost his job if he hadn't issued a blanket waiver.

[emptywheel]

Actually, to speculate on firedoglake's comment above--the import of the obstruction exception?

Is it possible that Judy and Bolton are collosally stupid enough to try to get away with an obstructing conversation in prison?

Imagine that Fitz has only finalized his Bolton understanding of this case since Judy's been in jail. Bolton goes to visit. He's an arrogant fuck, so he believes he's smart enough to outsmart Fitz. So he says something like, "Judy I appreciate the coverage you gave me for news issues while I was Under Secretary of State. And I hope you can give me the same coverage while I'm UN Ambassador." All true, I guarantee you. But enough a double entendre it could be interpreted as witness tampering. At which point Fitz says, "Oh Judy, in addition to the criminal contempt indictment I've got in my back pocket, I've got a little conspiracy charge for you as well. Are you sure you don't want to get on the horn with your buddy Scooter Libby?"

[obsessed]

>EVERYTHING is pretty much recorded

...so when you watch The Wire on HBO, and the visiting thug is talking strategy with the jailed ringleader, that's all completely unrealistic? There's no way for a powerful crime figure to get messages and instructions to the outside?

[Meteor Blades]

ReddHedd, just for the record as someone who was (illegally) wiretapped for eight months, I can assure you that recording phone messages - in or out of prison - doesn't require giving the game away with little clicks.

- - -

Let me add my speculation to one teensy, tangential part of this terrific discussion: Judy's notes.

Of necessity, reporters must be good compartmentalizers, as all but the most fortunate are usually working on several stories at once. So, while Judy may have been under discipline, and assigned only to subjects A,B & C, she may, like many of her fellows, been leveraging all her contacts for D, E and F stories. She gets to the end of her Times's assignment interview with Scooter and then she starts discussing something unassigned, something she may be planning to raise only later with her bosses, or something she has in mind to write for somebody else - a magazine, say. Technically, she may still be on the Times's clock, but ... And this might give the Times an out because that part of the notes don't apply. As we've heard, the notes have been redacted, and it's unlikely we'll ever learn what was in the left-out parts.

As for that steak, isn't that often offered as a last meal?

[ReddHedd]

There is a way, but both parties have to know what they are doing in terms of the conversation and the code they use for discussions. The Wire is REALLY well done -- one of my favorite shows, actually, because they get the details right unlike most crime shows on tv. When the two priciples were discussing stuff at the prison, they had three factors in their favor: (1) overwhelmed (and sometimes lazy as to details) police and prosecutors on the case; (2) smart felons who spoke in careful language; and (3) payoff to prison officials for safety and other issues -- really good writing on that show! Also, the prison scenes in The Wire are in state facilities for the most part and not federal ones. In my experience, the Feds operate a much tighter ship in terms of equipment and recordings and such. Also, there has to be an active effort to monitor the specific conversations -- they tape hours and hours of stuff every day and have to dig back through those tapes to get what they want after the fact if they aren't doing active daily monitoring of a specific inmate (via a court order for the information obtained by the police or a prosecutor). Fitz is meticulous in terms of details for his prosecutions, and I can only assume he's had a standing order for all this from the moment Judy entered the facility.

[ReddHedd]

MB -- I hear you on the clicks thing. I've had clients have to go through that as well and know what sort of technology you are talking about -- and how easily available it is for anyone who has a friend working at Radio Shack. In the case of prison calls, though, most facilities have put in place a system that makes the audible clicks due to either aged equipment not having been replaced or as an audible reminder that the calls are being recorded -- not sure about the motive as to why they do this, but every call I had with clients or witnesses in jail was accompanied with those clicks. May just be representative of them having antiquated equipment in WV -- that wouldn't surprise me one bit.

[ReddHedd]

Obsessed -- one other thing. As an attorney, you have particular non-wired interview rooms that you can use with clients. A dirty attorney could, feasibly, pass information between an incarcerated client to someone on the outside when meeting in one of those rooms. But even there, you are generally in a glass-enclosed space, or at the very least a room with a glass window in the door, for safety reasons where you can be seen at all times by the guards on duty while you are with your client. (Well, with the exception being the time they didn't have any rooms available and had me meet with my client -- a huge, violent skeezeball -- in the weight room. Alone.) At least that is how it has worked for me in every facility -- state or federal -- where I have visited clients.

[Kathleen]

On July 22, 2005 Congressman Henry Waxman pointed out 11 Security Breaches in the Plame Case. YubaNet

This was later followed by a letter to Fitzgerlad from Congressman Maurice Hinchey, signed by 40 other Dems, requesting that the scope of his investigation be increased to include the origins of the forged documents about yelowcake from Niger.Crisis Papers Since State Department records reveal John Bolton as actively involved in this, it could be that Fitzgerald is indeed increasing the scope of his investigation and Miller figured it was time to say Uncle.

[obsessed]

Bolton not realizing he was being recorded would be unthinkable -- I mean -- that would be like the President recording all of his grossly incriminating conversations in the Oval Office ... uhhhhh

I just can't get a handle on these guys ... they're smart enough to figure out how to get the red state masses act against their own financial interests and support them through thick and thin, but they're stupid enough to take over Iraq without any kind of plan to manipulate the no-doubt equally-gullible masses there. It's a puzzlement.