It seems more and more people are coming around to my and Jane Hamsher's Dust Bunny theory--that Judy Miller was caught being unforthcoming in her first grand jury testimony and--once Fitzgerald pointed that out to her--she discovered some notes she
had been hiding in her desk had forgotten about.
But there are lingering questions about why Fitzgerald had to set a perjury trap (if he did) and why he didn't just include June in Judy's original subpoena. And I'd like to offer my take.
I think there are several reasons why Fitzgerald proceded in the way he appears to have. First, case law is clear; a prosecutor can only subpoena journalists for materials he can't get via another source. I think it very likely that Fitzgerald knew--as early as August of 2004--about the June conversation with Libby. Not only did he know about the conversation, but he had enough evidence about it already, through non-journalist channels, that he couldn't include that in Judy's subpoena.
Which says Fitzgerald had already established the chain of the leak from the person with the need to know to the people who told Novak. Yes, he needed the substance of Judy's conversation with Libby to show precisely how the information got from, say, John Bolton to Scooter Libby. But he already had evidence of the first leak, the IIPA violation (which I suspect is Bolton to Judy) and plenty of evidence of the second leak, Rove's and Libby's violation of their security clearance.
What Judy's testimony allowed him to prove was the conspiracy involved, the direct and deliberate chain from the IIPA leak to Rove and Libby's leak.
But there is more.
eRiposte suggests that Fitzgerald needed Judy and Cooper to sew up the case.
The key thing is that Fitzgerald was after Cooper and Miller because he felt there wasn't much of a case without their testimony.
I think they're important, but nowhere near as important in the leak case as eRiposte suggests. Rather Cooper and Judy provided the crucial piece of evidence of another crime. Not the leak, but the cover-up. Cooper and Judy were so important because they proved that Rove and Libby had lied to the grand jury about their testimony.
That's what I think this David Corn tidbit is about.
One person who recently had contact with Fitzgerald and his attorneys says that they seem confident about whatever it is they are pursuing. The Miller matter was something of a sideshow that at times drew more attention than the central issue.
Fitzgerald was confident before Judy testified he had finished his leak case, the central issue. But he wanted Miller and Cooper to complete his "sideshow," his obstruction and perjury cases.
To prove Rove's perjury was easy. All Fitzgerald had to do was get Cooper to explain that he had called Rove not to chat about welfare reform, but about Joe Wilson.
With Libby's perjury it was harder, because his lie was not so much content (I find it highly likely that Judy and Libby were talking about Iraq and uranium, since Fitzgerald had enough evidence they were to subpoena that content). It was about timing. Libby said they didn't speak about Wilson until July. Judy proves they spoke about it in June.
So consider the problem. Fitzgerald can't subpoena Judy about June (I presume). But he knows that proving the June meeting occurred is critical to proving that Libby lied to the grand jury. He needs to find a way to get to the June conversation. And if Judy wasn't willing to be forthcoming with that information, he could make her rethink that stance.
One more thing.
Consider what it took before Judy would testify. First she required a waiver from Libby. She got one, we know, but it appears the waiver really offered instructions on how she should testify rather than a waiver to testify about their conversations. Libby told her to testify only about Wilson and only about July. The July part, she probably thought, was going to be easy, because the subpoena only asked about July. But to avoid testifying about Iraq and uranium, she was going to need to get Fitzgerald to deal.
Which he did.
But if you buy my argument, the conversation about uranium was necessary--unavailable anywhere else--while the conversation about June was not.
So at that point you have two choices. Simply confront Judy with the fact Fitzgerald knew about the June meeting in which case her testimony would be done, but to get to the uranium discussion, Fitzgerald would have to flip Libby using the perjury charge as leverage. Or he could ask a more general question. If Judy admitted the June meeting, then Fitzgerald still had Libby's perjury charge to fall back on, to try to flip him. But if Judy didn't admit the June meeting (as I believe she didn't) then he had the chance of flipping Judy, based on her perjury charge. In other words, confronting Judy with the June meeting directly left him only one avenue to getting the additional information. Allowing Judy to perjure herself gave him two avenues to get the additional information. And given the fact that Libby probably already knows he's got some security violation-related charges coming down the pike, Judy is much more likely to flip than Libby.
One piece of evidence that supports my theory. As far as we know, Fitzgerald has not called Libby back to the grand jury. He's not going to give Libby a chance to flip. Apparently, he got what he needed from Judy.