In Defense of Judy. Kind of.

by emptywheel

Update: Three things. First, I'm heading off to an undisclosed location for the next week, where I will have sporadic--and potentially non-existent--Internet access. Yeah, some pretty crummy timing, huh? But I'm sure Jane and ReddHedd will keep you up-to-date on the Plame Affair.

Second, it appears I was wrong in many of my speculations in this post. If we can believe Bennett (?), Judy didn't cop a plea, and was never in danger of perjury charges.

Miller was recently told by Fitzgerald that she is only a witness in the case, according to a source close to Miller.

"Judy has always been a witness in this case and nothing more," said Robert S. Bennett, Miller's attorney. "She is neither a subject nor a target of the investigation."

Which suggests it was shame or greed which kept Judy silent, not legal limitations. Well then, as I said below, make her squirm.

Finally, Arianna says the NYT story is on its way and it will be good. I have to say I'm more skeptical than she. I predict the NYT will frame the story very narrowly on the question of how Plame's identity got to Libby, rather than on the larger question of why and wherefore. As lambertstrether at DKos points out, there are some things the NYT simply doesn't want to print, for whatever reason.

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Bet you never thought you'd see that headline next to my moniker, did you?

Everywhere in journalist-land, people have lost patience. Why won't the NYT speak? Why won't Judy speak? I'm not going to make any excuses for the former. But I will suggest that there may be a very good reason for the latter.

Observers base their impatience on Judy's release from contempt the other day.

From NYT Public Editor Byron Calame:

The lifting of the contempt order against Judith Miller of The New York Times in connection with the Valerie Wilson leak investigation leaves no reason for the paper to avoid providing a full explanation of the situation. Now.

From Farhad Manjoo:

On Wednesday afternoon, that justification vanished. Miller made her second appearance before the grand jury, and Hogan then lifted the contempt order.

The hold-up preventing the NYT from telling a full story, is Judy's apparent unwillingness to grant interviews.

Reached Wednesday afternoon, Ms. Miller declined to say whether she would be giving an interview to the Times.

Judy is equally unwilling to offer her own newspaper interviews.

“What Bill is talking about is not when we can write a story,” Mr. Landman said. “What he is talking about is when [Judy] can be expected to tell what happened.”

Perhaps she is especially unwilling to offer her newspaper an interview (she was happy to offer "Judy Fan" Lou Dobbs an interview, before the second set of notes myseriously reappeared).

There are three very likely reasons Judy may be so reticent. Some have speculated that she wants to keep the story secret until she publishes her book. I think that unlikely since she apparently has yet to sign her book deal.

It could be pure shame. Judy was quite comfortable in the First Amendment martyr role. As it is, there are people who question whether Judy really got an uncoerced waiver to testify the first time. Her testimony the second time is clearly testimony Libby did not waive her to give; his letter very specifically (likely intentionally) referred to their July conversations, not their June one. In addition, there's a distinct possibility that the limits Judy had received from Fitzgerald for her first testimony got invalidated when she discovered new notes. Specifically, there's an equally distinct possibility that Judy was asked about a second source during her recent testimony and that--for whatever reason--the martyr stance no longer looked so appealing. There's no good spin Judy can put on the facts if she indeed violated the principles she celebrated so boisterously in July.

And if Judy is silent out of shame, I say, make her squirm. When I see crap like Richard Cohen's recent column, I think some public humiliation might make journalists like Cohen rethink their defense of journalistic impunity.

Finally, though, there's also the possibility that Judy's legal entanglements have not ended. Sure, her contempt charge has been cleared. But why are we so quick to assume that means she's in the clear? Or let me put it this way. There is no way any journalist would expect Larry Franklin to tell about his little espionage ring in the Defense Department, not until he's done testifying.

Let me make this clear. I'm not excusing Judy for her shitty reporting, her posturing before she testified, her general bitchiness. If she broke the law in some way related to the Plame Affair, I will be thrilled if she pays for it. Reap what you sow and all that.

But if Fitzgerald has decided her continued testimony may be worth more than punishing her to the full extent of the law, then she's going to need to stay silent for some time yet. If she has decided a plea bargain is a preferable option than the alternatives, then she's not going to give the NYT an interview for a long time. And if Fitzgerald believes Judy's ongoing testimony would be valuable (if that's what's happening), the country would be better off if Judy remained silent, to the public.

Now, the NYT may be in the same situation as Judy--in continued legal jeopardy of some kind. Certainly, Barney Calame's explanation for why the NYT had put off telling their story suggests as much.

But they declined to fully respond to my fundamental questions because, they said, of the legal entanglements of Ms. Miller and the paper.

As I've said, the NYT has demonstratably lied about what Judy was doing during July 2003, at least in print. If they told the same lies to Fitzgerald that they told to NYT's readers, then they may very well have gotten entangled with the law (and for those keeping count of the compromised players in this affair enjoying publicity as journalism heros, Jill Abramson also has a speaking gig coming up). They avoided the contempt charge Time Magazine received based on the story they originally told Fitzgerald; if he discovered they weren't telling the truth when they avoided contempt, they would indeed be in some legal jeopardy.

But I think the NYT is out of legal danger now, at least if rumors of spats between Bill Keller and Judy Miller are to be believed. If Bill Keller is ready to publish a complete story but Judy isn't, then the NYT probably has a story that they can commit to--and tell publicly.

Judy Miller's and the NYT's interests largely diverged a good time ago, probably before Bill Keller even got the job. The difference is the NYT has finally realized that.

Comments

[John Forde]

EW,

Why is not the CW that Judy is in further legal trouble?

Hasn't she long been part off an ongoing SYSTEM of recieving classified info and passing it on to other officials inside the administration like some founding-father-sanctified-classified-information-laundering machine?

1. Conspiracy at a minimum.
2. Perjury - uh huh.
3. Obstruction? Almost certainly somewhere in her byzantine rationales and manuevers.

I'll wager on the trifecta.

[wasabi]

And if Judy realized someone at the Times was responsible for "finding" her notebook in DC, might she be less than thrilled to disclose to the Times the entie affair?

[pontificator]

EW:

Important breaking Judith Miller news in the WP

But it remains a mystery who -- if anyone -- will be charged in the case. The grand jury expires Oct. 28.

One person who will not be charged is Judith Miller, the New York Times reporter who spent 85 days in jail for refusing to testify in the case before making two recent appearances before the grand jury. Miller was recently told by Fitzgerald that she is only a witness in the case, according to a source close to Miller.

"Judy has always been a witness in this case and nothing more," said Robert S. Bennett, Miller's attorney. "She is neither a subject nor a target of the investigation."

[CaseyL]

If the speculations here and at Jane's place are accurate, Fitzgerald had Miller dead to rights on perjury. So, if she's not a target, he flipped her. Presumably. Against Libby, also presumably.

[Glic]

From pontificator's link:

"Rove's defense team asserts that President Bush's deputy chief of staff has not committed a crime but nevertheless anticipates that special prosecutor Patrick J. Fitzgerald could find a way to bring charges in the next two weeks, the source said.

Libby's lawyer, Joseph Tate, has not returned reporters' phone calls for several days. Neither has Ari Fleischer, the former White House spokesman who testified early in the case and was present on a July 2003 Air Force One flight on which a memo that included information about Plame was circulated"

Also - Judy's lawyer wasn't saying she's "only a witness" before was he? Did Judy flip? I think she made a deal with Fitz on Monday and gave him what he wanted on Tuesday.

[pontificator]

Thanks Glic -- the WP article is definitely one that should be read "in toto." LOT'S of good nuggets in there.

[jonnybutter]

I think some public humiliation might make journalists like Cohen rethink their defense of journalistic impunity

(I know I'm late to this discussion, but) Thanks for clarifying this issue, EW. I don't think much of Richard Cohen (I barely know who he is) but I have liked Oliphant, and I try to see it from his perspective. He's spent a lot of time and, in his case, skill, building up his relationships over the years. I can see why he's upset (especially at Judy, maybe).

But I agree with you. The key word is (utter) 'impunity'. I'm not a attorney, but I assume that being a prosecuter is kind of an art (?!), because you have a fair amount of leeway, and often you need political support to do a prosecution. I'm certainly not upset that Judy was squeezed. I'd normally be a first amendment absolutist, but when the press itself is so obviously corrupt....eh. When I can read brilliant 'regular' people put the story together with (fairly dear) public material, it's obvious that there's a gap there. The 'bench' really IS political, just like the fundies say it is. My my. They're scared - sensibly - of the real conservatives: the valient Good Republican (Fitz) preempting McCain and saving the Party.

And besides, Ashcroft and the WH started it. It's 'reap what you sow' time. It makes some people break into ambic pentameter.

[jonnybutter]

iambic.

[DoDi]

I think the star witness may be one that nobody seems to have considered: Valerie Plame.

She after all is the victim in this case so I'd be surprised if Fitzgerald hasn't talked with her.

She more than anyone else would know about Iraq and (lack of) WMD. I'm sure she has lots of sympathy from others in the CIA whose analysis was rejected and suppressed by the WHIG disinformation campaign during the build up to the war.

For this reason I believe that Fitzgerald can, if he chooses, really blow the lid off the biggest crime... the one committed by the President when he lied to Congress in order to make the case for war.

Valerie could connect all the dots for him, all the way up to the oval office.

[RadicalFringe]

Maybe Judy's keeping her west coast engagement this weekend because, not despite, the increasing scrutiny. Arianna is saying the Judy story is being compiled by some of NYT's best and will appear in Sunday's Times. She is confident Keller will let the full story print. If true, I've got to believe he already has Miller's 'resignation' on his desk.

Judy is headed to California so the story on every Monday morning front page won't be accompanied by a photo of her toting a box of personal effects from the office formerly known as hers.

[emptywheel]

I guess I'm more skeptical than Arianna. If they had wanted a tough story, they would have let Jehl and Johnston write the story, rather than be interviewed for it.

My guess is the frame of the story will be very very narrow to avoid embarrassing the NYT.

[JVictor]

Reading the WP article cited above, I wonder whether Fitzgerald has possibly flipped Rove. I realize Luskin could be spinning here -- "The special counsel has not advised Mr. Rove that he is a target of the investigation and affirmed that he has made no decision concerning charges" -- but suppose he isn't: his statement would be consistent with Rove becoming a witness for the prosecution. Rove is a big fish: if he's flipped, it may be because Fitz has much biggger fish to fry: Libby and/or Cheney and/or the whole WHIG group. I won't let myself dream that Fitz could serve up the whole Bush crime family: RICO, anyone?

[orionATL]

somewhere in the welter of commentws about the plame affair i ran across a truly unique perspective -- a commenter who said the he/she thought part of the plame affair might be explained by a internecine war between CIA and DIA (defense intelligence agency). i recall he/she saying additionally that he "assumed" judy miller was DIA.

now there's a tasty morsel of gossip. the new york times has had a DIA operative on its staff as a reporter.

spy vs spy in the reign of George W. Neuman.

[kim]

The WaPo article does say that Judy is talking with Times reporters now that the contempt of court citation has been lifted. Neither Judy nor Fitzgerald are in any rush to satisfy the public's curiosity, in her case she'd probably like to keep the story for her book (Woodward's deep throat book did terribly for this reason).

[kim]

The WaPo article does say that Judy is talking with Times reporters now that the contempt of court citation has been lifted. Neither Judy nor Fitzgerald are in any rush to satisfy the public's curiosity, in her case she'd probably like to keep the story for her book (Woodward's deep throat book did terribly for this reason).

[BigMac]

The most important witness in the whole Plame affair is the "senior administation official" who was the source of the Washington Post's article on September 28, 2003. The Post reported that:

Yesterday, a senior administration official said that before Novak's column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife. Wilson had just revealed that the CIA had sent him to Niger last year to look into the uranium claim and that he had found no evidence to back up the charge. Wilson's account touched off a political fracas over Bush's use of intelligence as he made the case for attacking Iraq.
"Clearly, it was meant purely and simply for revenge," the senior official said of the alleged leak.

It is rare for one Bush administration official to turn on another. Asked about the motive for describing the leaks, the senior official said the leaks were "wrong and a huge miscalculation, because they were irrelevant and did nothing to diminish Wilson's credibility."

If the Special prosecutor has connected with and obtained this "senior administration officials" testimony --- then the White House and Administration are in unbelieveably BIG TROUBLE. The question is whether this senior official whose conscience led him/her to leak to the W/P also was patriotic enough to come forward and tell what he/she knows of this sordid affair.

[obsessed]

BigMac: Great point -- and quite a mystery.

"Clearly, it was meant purely and simply for revenge,"

Powell? But he stayed on for 15 more months. Surely the rest of the WH gang read that article and must have been frothing at the mouth with rage.

[the exile]

Maybe this is the uninformed musings of just some guy, but the pattern appears to be forming. Libby is gone-- at least perjury and obstruction are now pretty much proven. Rove is leaking like a cheap diaper to try to keep the focus on Libby and away from his own secondary leaks. Fitzpatrick really badly wants to prove that Libby is covering up for Cheney, who (we all know in our hearts) is the REAL criminal at the center of everything. Cheney, not Rove, though Rove surely broke some laws too. Libby will fall on his sword before giving up Cheney, and Judy Miller is complicit in that coverup. The questions that remain to be answered: 1) Is Fitzpatrick trying, as I suspect, to squeeze Rove to get to Cheney? 2) Can he succeed? 3) If not, how big will the charges against Rove be? Major or trivial? 4) Is Libby in his desperation leaking against Rove to try to save himself (if so, the effort is futile) 5) Alternatively, is Libby now fully aware that he's going down, and is leaking against Rove just to save Cheney? Inquiring minds want to know.