Via firedoglake, I found the latest leak of legal correspondence related to Judy Miller's release, Fitzgerald's letter to Libby's lawyer (PDF) encouraging him to make Libby's waiver clear. My short take on the letter: Fitzgerald was making Libby's existing strategy of giving Judy no easy way out of her waiver very costly to sustain.
But that's not the aspect of the letter that intrigues me most. What intrigues me is Fitzgerald's use of newspaper articles to make arguments about opinions he either should not know or could not reveal. If Fitzgerald continues the practice in his indictments and his court case, there may be some Bush Administration officials who sorely regret their leaking about the case.
Best as I can guess, Fitzgerald is trying to make a case about why Cooper testified and Judy did not without breaking grand jury confidentiality rules and attorney-client privilege. Fitzgerald describes his assumption about why Judy won't testify:
I have assumed that Ms. Miller chose to remain in contempt either in spite of her awareness of Mr. Libby's waiver or because Mr. Libby had decided that encouraging Ms. Miller to testify to the grand jury was not in his best interest.
Then, he cites Murray Waas' August 8 article to support his case.
Ineed, there was press reporting to the same effect:
Sources close to the investigation, and private attorneys representing clients embroiled in the federal probe, said that Libby's failure to produce a personal waiver may have played a significant role in Miller's decision not to testify ...
Later, he cites a Reuters article quoting Abrams as saying:
"She is there (in jail) for a reason. At this time, the reason is still there. She made a promise and, unless properly released form her promise by her source, she has no choice but to continue to take the position that she's taking," Abrams said.
Fitzgerald even cites an LA Times story to communicate what Luskin had apparently claimed about Rove's release allowing Cooper to testify.
Rove's attorney, meantime, took the view that contacting Cooper would have amounted to interfering with the ongoing court battle between reporter and prosecutor.
In other words, without quoting anyone directly, Fitzgerald describes the legal positions of Abrams and Luskin, then uses his description of those positions to undercut Tate's apparent justifications for not advising Libby to give Judy a further waiver to speak.
Pretty clever, in my opinion. But I've got a soft spot for Fitzgerald, so perhaps I'm not a good judge.
As I said, I think this letter completely undercut Libby's existing excuses for not giving Judy a further waiver. And this was mostly using sourced comments in the press--only Waas' article uses anonymous sources. But imagine what this tactic might give Fitzgerald in indictments or court arguments, particularly if he uses all the unsourced leaks that have been in the press. As I've pointed out before, Bush Administration officials have been working the press tirelessly, trying to make their case to the public. They have, almost certainly, lied in some of those leaks to the press. They have, probably, made some claims they don't necessarily want to defend in court. And, as this letter shows, Fitzgerald (or someone who works for him) reads the press very very closely.
Used to be that Rove (and Libby and Cheney and Bolton) could assume the structure of media confidentiality meant you can leak with impunity.
Well, not any more. As Fitzgerald's success at getting Judy's and Cooper's testimony shows, that's not a safe assumption anymore.
And as Fitzgerald's skillful use of stories in the press shows, it doesn't even take subpoenaing a journalist to give leaks some power in a legal case.