PINCH & JUDY SHOW:

The Judy Code (Douglas McCollam, 10/19/05, Columbia Journalism Review)

The more you analyze Miller’s story (I have read it four times now) the less it seems like a straightforward recitation of events and the more it seems like a carefully scripted message to Libby, and perhaps to other sources with whom Miller spoke about Valerie Plame and Joseph Wilson.

I confess part of this impression may stem from my own legal background. I know too well that once a prosecutor starts circling, especially a super predator like Patrick Fitzgerald, it can get very hard for parties to communicate with one another without stepping on a landmine. This, for example, is why Libby’s lawyer, Joseph Tate, went ballistic when Floyd Abrams, one of Miller’s lawyers, suggested that Libby had “signaled” to Miller that she shouldn’t testify. To reporters such a request might be a normal part of the reporter-source relationship, but to a prosecutor it’s witness tampering and obstruction of justice. Abrams put Libby on the spot. That’s why Miller’s insistence on a personal letter or telephone call from Libby releasing her to testify was so problematic. Anything much beyond “please testify” could easily be construed as an attempt to influence Miller’s testimony. As Libby, a seasoned lawyer in his own right surely knows, a more complex communication is what obstruction charges are made of.

Which makes it all the more amazing that Libby wrote just such a letter to Miller while she was still in prison. The September 15 letter pointedly reminded Miller that no other reporter subpoenaed in the investigation had testified that Libby had discussed Valerie Plame with them. It also contained a loaded reference to how “out West where you vacation, the aspens will already be turning. They turn in clusters because their roots connect them.” Their roots connect them? Is it a coincidence that Libby and Miller shared a long-held concern about the intersection of WMD and Islamic militantism? Miller’s story implies in several places that she didn’t know Libby all that well (going so far as to point out she didn’t even recognize him when she bumped into him on a trip out West, a trip that Libby mentions in his letter to her). But it doesn’t address the key question of whether Libby was a source for Miller’s post-9/11 WMD reporting, or whether he helped arrange meetings with the Iraqi defectors who were peddling fabricated stories about Saddam’s weapons.

In analyzing Miller’s account, several themes emerge. First, with Fitzgerald clearly probing Vice President Cheney’s office, the administration would obviously have a concern that Miller’s notes might cause problems. But in her account in the Times Miller goes out of her way to stress that Libby protected Cheney at all times. This is key. While there seems little doubt that Libby would fall on his sword to protect his boss, a reporter is an altogether different matter. Miller’s account clearly signals that her notes don’t give Fitzgerald an avenue of attack on Cheney.

Second, as many have noted, Miller makes the suspect claim that she now can’t recall who gave her Valerie Plame’s name. Obviously then her direct testimony won’t be the lynchpin that let’s Fitzgerald make a case that Libby or anyone else supplied Valerie Plame’s name, though the presence of her name in the same notebook as the notes of the Libby interview could allow a grand jury to draw a strong inference. Miller says she doesn’t recall who gave the name, which, by default, doesn’t finger Libby. But neither does it clear him.

Miller’s account also contains damning revelations that show how far she strayed from accepted practices of journalism. One, she references having (at least in her own mind) an ongoing security clearance from the government that would allow her to discuss sensitive information about Iraq with Libby—but not with her own editors. Talk about being captured by a source!

In addition, in her second interview with Libby about Wilson, Miller agreed to identify Libby as a “former Hill staffer,” effectively aiding and abetting the administration’s effort to undermine Wilson while at the same time covering its tracks. “I knew that Mr. Libby had once worked on Capitol Hill,” she writes. Yes, he did—he was briefly a special legal advisor to a House Select Committee on China more than a decade ago, surely the least relevant of all Libby’s many governmental posts in the last quarter century.