In a third letter, Mr. Tate wrote to Patrick J. Fitzgerald,
the special prosecutor investigating the leak, about his
conversations with Mr. Abrams. "Over a year ago, I assured him
that Mr. Libby's waiver was voluntary and not coerced and she
should accept it for what it was."
For some reason, Ms. Miller delayed her testimony for a year,
spending part of that time in jail. Perhaps she was
participating in a scheme to delay the proceedings. In any
case, Rove and Libby, both high-level White House officials
have now been implicated in the Pflame leak. I don't know if
Fitzgerald has subpoena powers sufficient to call White House
staff to testify, but if he does that would appear to be the
next step.
rkm
--------------------------------------------------------
http://www.nytimes.com/2005/10/01/politics/01waiver.html?th&emc=th
October 1, 2005
Phone Call With Source and Deal Led Reporter to Testify
By ADAM LIPTAK
Two developments drove the decision of Judith Miller, the New
York Times reporter jailed for refusing to testify about
conversations with a confidential source, to appear before a
grand jury in Washington yesterday in exchange for her
freedom, she and her lawyers said yesterday.
One was a long phone call with the source. The other was a
deal with the special prosecutor in the case.
But three recent letters from people involved in the case
debate whether a similar deal may have been available for some
time and raise questions about why Ms. Miller decided to
testify now.
In essence, the dueling letters give sharply divergent
accounts of what was said a year ago when lawyers for Ms.
Miller and her source, I. Lewis Libby, Vice President Dick
Cheney's chief of staff, discussed the possibility of Ms.
Miller's testimony before a grand jury investigating the
possibly unlawful disclosure of the identity of a C.I.A.
officer.
Mr. Libby's side says he gave Ms. Miller unequivocal
permission to testify about her conversations with Mr. Libby
concerning his role, if any, in the disclosure of the identify
of the officer, Valerie Wilson, also known as Valerie Plame.
In a letter from Mr. Libby to Ms. Miller this month, he
expressed surprise that her lawyers had asked him to "repeat
for you the waiver of confidentiality that I specifically gave
to your counsel over a year ago." He added that he expected
her testimony to help him.
One of Ms. Miller's lawyers, Floyd Abrams, wrote a letter to
Mr. Libby's lawyer on Thursday in what he said was an effort
"to set the record straight." Mr. Abrams acknowledged that the
lawyer, Joseph A. Tate, had told him in the summer of 2004
that Mr. Libby had no objection to Ms. Miller's testifying
about a meeting with him a year earlier. But Mr. Abrams also
said Mr. Libby's lawyer had said that a blanket form waiver
Mr. Libby signed at the request of investigators in January
2004 had been "coerced and had been required as a condition
for Mr. Libby's continued employment at the White House."
"The message you sent to me was viewed by Ms. Miller as
inherently 'mixed,' " Mr. Abrams wrote.
He said Mr. Libby's failure to contact Ms. Miller as the case
proceeded had also led her to conclude that he did not want
her to testify.
In a third letter, Mr. Tate wrote to Patrick J. Fitzgerald,
the special prosecutor investigating the leak, about his
conversations with Mr. Abrams. "Over a year ago, I assured him
that Mr. Libby's waiver was voluntary and not coerced and she
should accept it for what it was."
He added that he understood from his conversations with Mr.
Abrams that Ms. Miller's "position was not based on a
reluctance to testify about her communications with Mr. Libby"
but on journalistic principle and an effort to protect "others
with whom she may have spoken."
At least four other reporters have testified in the
investigation, which has repeatedly reached into the White
House. They all testified wholly or partly about conversations
with Mr. Libby, and one, Matthew Cooper of Time magazine,
testified about a conversation with Karl Rove, the president's
chief strategist. Only Ms. Miller, who never wrote an article
about the C.I.A. operative, was jailed in an effort to force
her to testify.
The second factor in Ms. Miller's decision to go before the
grand jury was a change in the position of the special
prosecutor, Mr. Fitzgerald, concerning the scope of the
questions she would be asked, according to Mr. Abrams. Mr.
Fitzgerald only recently agreed to confine his questions to
Ms. Miller's conversations with Mr. Libby concerning the
identification of Ms. Wilson, Mr. Abrams said.
But other reporters struck deals with Mr. Fitzgerald last year
that also limited the questions they would be asked. For
instance, Glenn Kessler, a reporter for The Washington Post,
testified in June 2004 on ground rules essentially identical
to those Ms. Miller obtained, according to an article in The
Post at the time.
Mr. Kessler, The Post said, testified that the subject of Ms.
Wilson had not come up in his conversations with Mr. Libby.
A spokesman for Mr. Fitzgerald, Randall Samborn, declined to
comment yesterday.
Ms. Miller expanded her legal team as the prospect of jail
loomed, and it was a new lawyer, Robert S. Bennett, who
initiated the recent negotiations in late August.
Bill Keller, The Times's executive editor, said that it was
Ms. Miller's decision to resist the subpoena from Mr.
Fitzgerald and to testify after the latest developments.
"It wasn't the paper's decision," he said. "It was hers. We
supported her in her decisions. If we thought her decision in
either case was frivolous, she wouldn't have had the kind of
support she had."
One of her lawyers, George Freeman, an assistant general
counsel of The New York Times Company, said the phone call
between Ms. Miller and her source had been crucial.
"This was a call," he said, "that lasted about 15 minutes, and
Judy could measure the timbre and tone of the source's
response and real feelings regarding whether or not he was
being coerced and whether or not he really wanted her to
testify."
Ms. Miller said nothing about the substance of her testimony
after court yesterday and has not publicly named her source.
Ms. Miller declined to discuss her grand jury testimony on the
advice of her lawyers.
Mr. Abrams said that she provided the grand jury with an
edited version of her notes.
"The notes were redacted to omit everything but the notes
taken concerning discussions with Libby about Plame," Mr.
Abrams said.
"At its core," Mr. Abrams said, "a time had come when it was
possible to resolve this. Judy had no desire to continue to
endure life in the detention center."
Copyright 2005 The New York Times Company
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