Those who have been following me following Judy Miller for a while will know that I am obsessed with learning about Judy's status in July (and June, as it turns out) when the whole Plame thing was developing.
It's more than an academic question.
The NYT was originally subpoenaed for anything relating to Judy Miller's subpoena--that is, notes relating to meetings between her and (we now know) Scooter Libby the week of July 6 2003. The NYT was able to convince Fitzgerald and some skeptical judges that they didn't have anything. But Time Magazine was not so lucky. They were named in contempt of court and eventually--before Cooper testified--they gave up Cooper's notes to avoid punishment for contempt of court.
Here's Daniel Engber's quick description of the law on reporter's notes:
It's a murky issue, and one that hasn't been fully resolved in court. According to the work-for-hire doctrine prescribed by the federal copyright statute, the employer who paid for the production of a work is considered its owner. In general, any notes, tools, or other materials that were created in the process of producing that work also belong to the employer.
He goes on to say that NYT claims its journalists own their own notes, even while he shows their application of this standard has been inconsistent. At the very least, though, we would expect consistency between news outlets in this case. If Time Magazine can be held in contempt, then presumably the NYT would be held in contempt if they refused to turn over the same kind of materials.
To some degree, this is moot. We know Judy has notes of her conversation(s) with Scooter Libby. But we have no reason to believe she sent emails about her conversation to her NYT editor. And it was only Cooper's emails, after all, that Time released.
That said, I've been doing somersaults trying to figure out why, if Judy Miller was reporting a story on Joe Wilson in July 2003, that wasn't considered work for hire for NYT and therefore the NYT wasn't held in contempt. I mean, they didn't even have to appeal this decision. They made some excuse, it was accepted, and meanwhile Norm Pearlstine was sweating bullets about the implications for a publicly-held company to be held in contempt of court.
"I believe that there's no argument for saying 'no' once the Supreme Court has ruled on a decision," Norman Pearlstine, editor-in-chief of Time Inc., said on CNN's "American Morning."
"I think we are a country of laws and not of individuals and that as journalists who regularly point a finger at people who think they're above the law, I'm not comfortable being one of them myself," he added.
It gets more suspicious because the NYT has been inconsistent about whether Judy's meeting with Libby on July 8 2003 resulted in an article or not.
During that period, Ms. Miller was working primarily from the Washington bureau of The Times, reporting to Jill Abramson, who was the Washington bureau chief at the time, and was assigned to report for an article published July 20, 2003, about Iraq and the hunt for unconventional weapons, according to Ms. Abramson, who is now managing editor of The Times.
But that claim just doesn't hold up. As I've shown, there is nothing in Judy's July 20 2003 article that wasn't rewarmed pablum from her earlier Iraq reporting. And absolutely nothing that Scooter Libby needed to provide. It's a recap of events that happened in Iraq, not Washington DC.
Then there's the question of why Judy had to go down to DC and pick up the tab at the pricey St. Regis hotel for the kind of story that she had previously been able to research via email. Why did Judy have to meet with Libby face to face to research a story that was nothing but recycled propaganda from Iraq?
There's another reason this stinks. The NYT now has another story to tell. According to the gang-bylined post-testimony article the NYT published, the story that came out of Miller's meeting with Libby was not published.
Ms. Miller spoke with Mr. Libby first on July 8, when the two met, and on July 12, when they spoke by phone. She was working on an article about banned weapons in Iraq that was not published.
Oh wait. Did someone say this article wasn't published? I'm sorry. The NYT wishes to inform you they've made a mistake.
Correction: October 2, 2005, Sunday Because of an editing error, a front-page article yesterday about testimony provided by Judith Miller, a New York Times reporter, to a grand jury investigating the leak of a C.I.A. agent's identity, referred incorrectly to an article Ms. Miller was working on in July 2003. The article, about banned weapons in Iraq, was indeed published, on July 20, 2003.
Perhaps it's time to remind you of the provenance of this now-corrected article. This is the article that accompanied Libby's lawyer Tate's letter to Fitz, Judy's lawyer Abrams' letter to tate, and Libby's love letter to Judy. Apparently the night all these goodies (letters and article) appeared on the NYT website there was a bloodless coup in the NYT newsroom. As Jane Hamsher describes eloquently:
The answer is evidently "3." Sources at the Times say there has been a coup in the news division by journalists tired of having their careers and the credibility yoked to the bullshit of some NeoCon slag, much to the horror of the brass. Will be blogging about it this afternoon for the HuffPo.
As I suggested when speaking of similar errata in the wacky Doug Jehl article mentioned above, it looks like the gang-bylined article managed to avoid all normal editing channels.
From which we can assume that the NYT corporate line says Judy did publish an article as a result of her meeting with Libby. While the people who work with her on a daily basis say she did not.
I think the NYT has backed themselves into a corner. Either Judy's July 20 article is what she was discussing with Libby on July 8 (in which case the NYT probably misdirected, if not obstructed, justice when they said they had nothing on this), or the WMD article she was working on never got published. And given the legal implications of the first choice, it makes me very curious why they don't want us to know about the WMD article that wasn't published.
Let me put it simply. It is not credible that Judy's July 20, 2003 article required an in-person interview with Scooter Libby. I'd like to know more about the article that did require such face time--and why the NYT is hiding it.
Update: There's a little detail in the Newsweek story of Judy's mysterious unforgotten notes that may relate to this.
Fitzgerald has also summoned New York Times reporter Judith Miller back for questioning this week: a notebook was discovered in the paper's Washington bureau, reflecting a late June 2003 conversation with Vice President Dick Cheney's chief of staff, Lewis (Scooter) Libby, about Wilson and his trip to Africa, says one of the lawyers. The notebook may also be significant because Wilson's identity was not yet public. A lawyer for the Times declined to comment.
Gosh I don't know who that bolded phrase came from--Newsweek or NYT--but you'd think these highly-esteemed media institutions would try to avoid passive constructions. Don't they know the passive hides the agent of the action?
And note, at least here, they don't say these are Judy's notes. It's just a notebook that "reflects" a June 2003 conversation involving Libby. It may be Judy's notes (hiding in DC for safekeeping? how weird would that be, particularly given the animosity felt toward Judy among the Washington bureau writers) or it could be precisely the kind of thing Time handed over. The editorial discussions about whether or not a story was sufficiently well-sourced to print. The kind of thing you might refer to in story meetings where one department--say the Washington bureau--yields to a scoop in another department--op-ed page.
My latest refined scenario? Fitz's call to Wilson Thursday after Judy testified was a request to go to Wilson's source at the NYT who tipped him off on Judy's story. Wilson agreed. And the new NYT source (David Shipley or Nicholas Kristof) tipped Fitz to the editorial discussions over whether they would print Wilson's or Judy's version of the story. At which point Jill Abramson "remembered" she had left this notebook in DC. And it was Shipley or Kristof who leaked the news that Wilson had been called.
Although which newspaper was it that first got the Wilson call leak? LA Times? That'd kind of scotch my theory...