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The Plame Illusion

Scooter Libby may just be misdirection to shield Judith Miller from another source of legal exposure.

12:00 AM, Oct 3, 2005 • By JOHN HINDERAKER
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LAST SUMMER, New York Times reporter Judith Miller went to jail rather than reveal to Special Prosecutor Patrick Fitzgerald the identity of the source who told her that Valerie Plame was an employee of the CIA. Or so she said. But there was always some doubt as to what motivated Miller. It has been widely reported that her source was Lewis "Scooter" Libby, Vice President Cheney's chief of staff. Libby himself has testified before Fitzgerald's grand jury that he met with Miller on July 8, 2003, and discussed Ms. Plame. Further, more than a year ago, both Libby and his lawyer, Joe Tate, signed a document that specifically waived any privilege that might belong to Libby as a source. And Libby has urged any reporters that he spoke to about Ms. Plame to testify, on the ground that their testimony would help to exculpate him. So many observers have wondered whether Miller had a motive for defying the special prosecutor's subpoena other than "protecting" Libby.

Last week, Miller and her new lawyer, Bob Bennett, announced that she had had a change of heart and was now willing to testify before Fitzgerald's grand jury and name her source for the Plame "leak." Miller and Bennett attributed the change to the fact that Libby had contacted Miller and, once again, urged her to testify about their conversation. They suggested that Libby was somehow at fault for not contacting Miller in prison to repeat his waiver of any possible confidentiality. Bennett, for example, said on CNN:

It was really the responsibility of Mr. Libby to come forward. Judy Miller felt very strongly that she should not initiate things. . . .

We did not want to take any steps to make it look like it was coercion. Judy Miller did not want me to, or anyone else for that matter, to suggest that he should do anything. We had reason to believe that he was prepared, he had made those representations, to some third parties. And so that's what happened. Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.

The suggestion that Libby was somehow at fault for not contacting Miller in prison and reiterating that he really meant it when, more than a year ago, he said that she should testify, seems laughable on its face. It was roundly rejected by Libby himself, who wrote to Miller on September 15:

I was surprised at Mr. Bennett's request, because my counsel had reassured yours well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we may have had relating to the Wilson-Plame matter. As you know, in January 2004 I waived the privilege for purposes of allowing certain reporters identified by the Special Counsel to testify before the Grand Jury about any discussions I may have had related to the Wilson-Plame matter. The Special Counsel identified every reporter with whom I had spoken about anything in July 2003, including you. My counsel then called counsel for each of the reporters, including yours, and confirmed that my waiver was voluntary. Your counsel reassured us that he understood this, that your stand was one of principle or otherwise unrelated to us, and that there was nothing more we could do. In all the months since, we have never heard otherwise from anyone on your legal team, until your new counsel's request just a few days ago.

To say that Libby's position is credible understates the matter. No one would be so foolish as to spend three months in prison, waiting for someone who has already urged her to testify to contact her again, unbidden, and ask her to testify again. Moreover, Miller has said that the reason she did not accept Libby's original waiver was that she did not believe it could be freely given, since White House employees are required to give such waivers, or else be fired. But that is still true, and Libby still works for the White House. If he couldn't voluntarily waive confidentiality a year ago, he couldn't do it last week, either. Yet, suddenly, Miller saw her way clear to getting out of jail.