Two Roads Diverged, and I Took the One More Self-righteous
In January 2004, Scooter Libby signed a waiver allowing Judy Miller to testify about their confidential conversations regarding Valerie Plame Wilson. But as Miller’s former lawyer Floyd Abrams later said, that waiver was “required as a condition for Mr. Libby’s continued em-ployment at the White House.” Hence, most journalists agreed that the waiver was, as Abrams put it, “inherently ‘mixed,’” or coercive.
This left Miller with two options. After publicly announcing that she viewed the waiver as insufficient, she could wait for Libby to assure her, specifically and directly, that he had voluntarily abrogated their agreement. Alternatively, she could ask him herself.
Matt Cooper took the latter route. After receiving—an hour before he would have been incarcerated—“an express personal release from my source,” who turned out to be Karl Rove, he agreed to testify and went free. Miller chose the former route, and so went to jail.
According to Abrams, Libby’s failure to contact Miller as the case proceeded led her to conclude that he did not want her to testify.
This is understandable. If a subpoena requires a reporter to break her confidentiality with a source, then, assuming the source knows about the subpoena (which, in this case, anyone read-ing a newspaper did), the source should approach the reporter, not vice-versa.
But I fail to see the great danger if the reporter approaches the source, as Cooper did (through his lawyer). Especially if the consequence of not doing so is four months in jail—and possibly more—a phone call or an e-mail asking for clarification seems eminently fair.
It’s therefore difficult not to conclude that Judy Miller’s 85 days in jail resulted not from the special prosecutor’s obstinacy, but from her own.
Addendum (10/2/2005): The New York Times: “[P]eople involved in the case have said Ms. Miller did not understand that the waiver had been freely given and did not accept it until she had heard from Mr. Libby directly.”
Arianna: “The claim that Miller ‘has finally received a direct and uncoerced waiver’ is laughable… and, indeed, has already been laughed at by (1) my increasingly frustrated sources within the Times (2) a chorus of voices in the blogosphere (see here, here, and here) and (3) (and much more significantly) Joseph Tate, Scooter Libby’s lawyer, who told the Washington Post yesterday that he informed Miller’s attorney, Floyd Abrams, a year ago that Libby’s waiver ‘was voluntary and that Miller was free to testify’ [actually, these are not Abrams’s words but the Post’s summary].
“So it defies credulity for Miller, Sulzberger [the Times’s publisher], and Bill Keller [the Times’s editor] to keep insisting that Libby’s earlier waiver was coerced when Libby says that it wasn’t. I don’t have much good to say about the vice president’s chief of staff, but I don’t doubt that he knows the difference between being coerced and acting on his own free will.
The Washington Post: “[Tate] said last night [Sept. 29] that he was contacted by [Robert] Bennett [Abrams’s replacement] several weeks ago, and was surprised to learn that Miller had not accepted [Libby’s year-old waiver] as authorization to speak with prosecutors.
“‘We told her lawyers it was not coerced,’ Tate said. ‘We are surprised to learn we had anything to do with her incarceration’ [emphasis added]. . . .
“In July, when Chief U.S. District Judge Thomas F. Hogan ordered Miller to jail, he . . . stress[ed] that the government source she ‘alleges she is protecting’ had released her from her promise of confidentiality.
Addendum (10/4/2005): Miller tells her paper, “I had been in jail, and I thought maybe Scooter Libby was thinking about that and that he might be prepared to do something that, for whatever reason, he didn’t feel comfortable doing before.”
Also from today’s Times: Miller had two other reasons for holding out:
1. She wanted a pledge from Fitzgerald that her testimony would be limited to her conversations with Libby and would not address other sources.
2. She wanted to redact her notes herself, rather than having to submit them to a third party, before turning them over to Fitzgerald.
Posted by Jonathan Rick in 
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