Tuesday, October 11, 2005
© National Journal Group Inc.
Tuesday, Oct. 11, 2005
In two appearances before the federal grand jury investigating the leak of a covert CIA operative's name, Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, did not disclose a crucial conversation that he had with New York Times reporter Judith Miller in June 2003 about the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony.
Special prosecutor Patrick Fitzgerald apparently learned about the June 23 conversation for the first time just days ago, after attorneys for Miller and The New York Times informed prosecutors that Miller had discovered a set of notes on the conversation.
Miller had spent 85 days in jail for contempt of court for refusing to testify before the grand jury about her conversations with Libby and other Bush administration officials regarding Plame. She was released from jail after she agreed to cooperate with Fitzgerald's investigation. Miller testified before the grand jury on September 30, and attorneys familiar with the matter said that she agreed to be questioned further by Fitzgerald today.
Meanwhile, in recent days Fitzgerald has also expressed significant interest in whether Libby may have sought to discourage Miller-either directly or indirectly through her attorney-from testifying before the grand jury, or cooperating in other ways with the criminal probe, according to attorneys familiar with Miller's discussions with prosecutors.
During two interviews with FBI agents and in two subsequent grand jury appearances, Libby discussed at length a July 8, 2003, conversation about Plame that he and Miller had at the St. Regis Hotel in Washington, D.C., as well as a July 12 telephone conversation with Miller on the same subject four days later.
Although Miller would never herself write about Plame, it was two days after her last conversation with Libby that conservative columnist Robert Novak would reveal Plame as a CIA "operative" in his now-famous column of July 14, 2003.
The previously undisclosed June 23 meeting between Libby and Miller, their telephone conversations of July 8 and 12, and Novak's July 14 column occurred during an intensive period in which senior White House officials were scrambling to discredit Plame's husband, former Ambassador Joe Wilson, who was then publicly asserting that the Bush administration had relied on faulty intelligence to bolster its case for war with Iraq.
Wilson had returned only recently from a CIA-sponsored mission to Niger to investigate claims that Saddam Hussein was covertly attempting to buy enriched uranium from the African nation to build a nuclear weapon. Wilson reported back that the allegations were most likely the result of a hoax. But President Bush still cited the Niger allegations during his 2003 State of the Union address as evidence that Hussein had an aggressive program to develop weapons of mass destruction. In a July 6, 2003, op-ed piece in the New York Times, Wilson charged that the administration misrepresented the intelligence information he had collected on the Niger mission.
FBI agents interviewed Libby in October and November 2003, and the following year he voluntarily appeared twice before the grand jury, according to government records and interviews. But he never disclosed anything to the FBI, prosecutors, or the grand jury about his June 23 conversation with Miller, sources say.
Joseph A. Tate, an attorney for Libby, did not return telephone calls seeking comment for this story. In an earlier interview, he said that neither he nor Libby would comment on anything that Libby might have told the FBI or the grand jury until the investigation was complete.
The new revelations regarding Libby come as Fitzgerald has indicated that he is wrapping up his investigation and making final decisions as to whether criminal charges will be brought in the case. The term of the grand jury that is hearing evidence expires on October 28.
Attorneys familiar with Miller's discussions with prosecutors said that Fitzgerald and his staff have expressed interest to Miller and others about the role that Libby and his attorney may have played in discouraging Miller from testifying in the Plame investigation.
During the earliest stages of the probe, Libby signed a general waiver granting permission to any reporter to whom he talked to testify to Fitzgerald and the grand jury. Several journalists, including Time magazine's Matthew Cooper, NBC Washington Bureau Chief Tim Russert, and a reporter for The Washington Post relied on such a waiver to provide testimony regarding their conversations with Libby.
A federal judge, however, sent Miller to jail when she refused to testify. Miller said she considered the general waiver to be coerced and would testify only if Libby provided her with a specific, personalized waiver. Libby and Tate took the position that the general waiver precluded the need for a personal waiver.
It was only after Fitzgerald personally intervened with Tate and Libby that Libby granted a personal waiver to Miller, according to correspondence between Fitzgerald and Tate. Libby subsequently telephoned Miller, encouraging her to testify.
On September 12, 2005 Fitzgerald wrote a letter to Tate that was marked "confidential." In his letter, Fitzgerald said that Libby's and Tate's refusals to provide a more specific waiver for Miller led the prosecutor to have "assumed that Mr. Libby had simply decided that encouraging Ms. Miller to testify was not in his best interest." Three days later on September 15, Libby wrote Miller a personal letter urging her to testify, and then telephoned her again urging that she testify.
Meanwhile, also on September 15 Tate wrote to Fitzgerald adamantly denying that his client's refusal to provide a personalized waiver to Miller was meant to discourage her from testifying.
"Mr. Libby did voluntarily provide your team with the written waiver immediately when it was presented to us, well over a year ago", Tate wrote to Fitzgerald. Tate also asserted that he repeatedly "assured" Miller's attorney Floyd Abrams that "Mr. Libby's waiver was voluntary and not coerced and [Miller] should accept it for what it was."
However, on September 29 Abrams wrote to Tate challenging that assertion. Abrams charged that Tate had indicated to him that Libby had considered the general waiver by its very nature to have indeed been coercive. "In our conversations," Abrams wrote to Tate, "you did not say that Mr. Libby's written waiver was uncoerced. In fact, you said quite the opposite. You told me that the signed waiver was by its nature coerced and had been required as a condition for Mr. Libby's continued employment at the White House. You compared the coercion to that inherent in the effective bar imposed upon White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion by your client of the Fifth Amendment, would result in his dismissal. You persuasively mocked the notion that any waiver signed under such circumstances could be deemed voluntary."
In interviews, both Tate and Abrams said that the other was misrepresenting their conversations. Tate did not return recent phone calls for this story. But in an interview in August-before Libby gave Miller the personalized waiver-Tate said the failure of his client to provide a personal waiver was "because we didn't think that we had to do anything different for Judy than everyone else." Tate added that, "She was and is free to interpret our behavior any way she wants."
Abrams, however, insisted that in several conversations Tate had "left no doubt whatsoever that a general waiver was inherently coercive. There just was very little room for any misunderstanding."
What exactly transpired between the two attorneys may prove to be extremely important to prosecutors, according to legal experts and outside legal observers not directly involved in the case.
A senior Justice Department official said in an interview that "any affirmative statement or action" that "would discourage Miller might be construed to be an obstruction of justice." The official, who has no direct involvement with the Plame probe, requested to speak on the condition of anonymity due to the political sensitivity of the investigation. "Any thorough prosecutor is going to look long and hard at that," the official said.
Dan Richman, a professor at Fordham Law School and a former federal prosecutor for the southern district of New York, said in an interview that while he could not speak specifically as to what occurred between Tate and Abrams, "[A]n attorney encouraging a witness to withhold information from a grand jury when the witness had no right to withhold is engaging in obstructive behavior."
Richman suggested that because Fitzgerald has already been investigating allegations of perjury and obstruction of justice by officials of the Bush administration, the prosecutor might be motivated to examine additional evidence of such conduct because it might demonstrate a pattern of behavior.
Rory Little, a professor of law at the University of California and a former federal prosecutor and associate attorney general in the Clinton administration said that when a special prosecutor is conducting in a high-profile investigation, as opposed to a more routine case probed by an ordinary prosecutor, most private attorneys would act with even greater caution in not sending signs to a potential witness not to co-operate. "A special prosecutor has a very narrow focus," said Little. "The prosecutorial lens is going to be even more focused on both the actions of an attorney and their client."
Although Libby and his attorney declined to comment for this article, Tate had said in a letter to Fitzgerald that he was "dismayed that you had the impression that I had not spoken to counsel for Ms. Miller or that we did not want her to testify." Tate also said he was confident that Miller's "testimony, when added to those of the other reporters... will assure you and the grand jury that Mr. Libby acted properly and lawfully in all respects."
But the senior Justice official added that even in the absence of hard evidence of an obstruction, "a prosecutor is going to want to know why a subject of (the) investigation did not want a witness to co-operate, and why they would allow someone to linger in jail for more than eighty days, unless they had something to hide. That is going to lead many prosecutors to redouble his efforts."
-- Murray Waas is a Washington-based journalist. His previous article, focusing on White House Deputy Chief of Staff Karl Rove's role in the Valerie Plame case, was published on Oct. 7.