CIA Leak Prosecutor Focuses On Libby

By Murray Waas, special to National Journal
© National Journal Group Inc.
Tuesday, Oct. 18, 2005

As federal prosecutors in the CIA leak investigation reach the critical stage of deciding whether to bring criminal charges, they are zeroing in on contradictions between the testimony of I. Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, and that of New York Times reporter Judith Miller, according to sources close to the investigation and attorneys for individuals enmeshed in the probe.

Evidence that Libby might have tried to discourage Miller's testimony has put Libby's testimony in a worse light, according to government officials briefed on the matter.

The prosecutors and the federal grand jury are also scrutinizing whether Libby, or his attorney, tried to discourage Miller from giving testimony to the grand jury, or tried to improperly influence what Miller would say if she testified, according to the same sources.

The grand jury has heard testimony from Miller and other witnesses that is at odds with Libby's testimony, according to the same sources. One crucial contradiction between Miller and Libby, the sources say, involves a July 8, 2003, breakfast meeting during which the two discussed Valerie Plame, the covert CIA operative whose identity was revealed a week later in a newspaper column and whose husband, Joe Wilson, was a critic of the Bush administration's Iraq policy.

According to attorneys familiar with his testimony, Libby told the grand jury that at the meeting, he told Miller that Plame had something to do with Wilson's being sent on a controversial CIA-sponsored mission to Africa, but that he did not know that Wilson's wife worked for the CIA or anything else about her.

However, Miller testified and turned over notes from the July 8 conversation to the grand jury that showed that Libby had told her that Plame worked for the CIA's Weapons, Intelligence, Non-Proliferation, and Arms Control office.

Evidence indicating that Libby or his attorney may have tried to discourage or influence Miller's testimony is significant for two reasons, outside legal experts say. First, attempting to influence a witness's testimony might in and of itself constitute obstruction of justice or witness-tampering, said the experts.

More important, evidence that Libby might have tried to discourage Miller's testimony has put Libby's testimony in a worse light, according to government officials briefed on the matter. Potentially misleading and incomplete answers by Libby to federal investigators are less likely to be explained away as the result of his faulty memory or inadvertent mistakes, the sources said.

According to a Justice Department official not directly involved with the Plame case, "Both intent and frame of mind are often essential to bringing the type of charges Fitzgerald is apparently considering. And not wanting a key witness to testify goes straight to showing that there were indeed bad intentions."

Miller's testimony -- and her recent first-person account in The Times -- as well as other evidence have become public just as Special Prosecutor Patrick J. Fitzgerald appears to be nearing final decisions on whether to bring charges against Libby, Deputy White House Chief of Staff Karl Rove, or others.

The grand jury has also heard new evidence suggesting that long-standing tensions between Vice President Cheney's office and the CIA over pre-war intelligence that the Bush administration cited as reason to go to war with Iraq led to the unmasking of Plame.

Federal investigators apparently learned for the first time from press accounts in late August that Libby and his attorney, Joseph Tate, might have tried to discourage Miller from giving testimony, according to documents and sources. At the time, Miller was serving a jail sentence for refusing to testify in the Plame investigation. But shortly after learning that Miller might have felt pressure not to testify, Fitzgerald personally intervened, strongly encouraging attorneys for Miller and Libby to negotiate an agreement by which Miller would give grand jury testimony.

Because Fitzgerald did not want to nix any possible deal for Miller's testimony, and because he was almost completely in the dark as to what she might say, the prosecutor did not aggressively pursue the possibility that Libby or Tate had been trying to influence or discourage Miller's testimony, according to sources.

On September 29 -- after Miller had agreed to testify, was released from jail, and was about to appear before the grand jury -- one of her attorneys, Floyd Abrams, wrote to Tate alleging that Tate had repeatedly made comments to him that had discouraged Miller from testifying. At issue was whether a general waiver, required of White House employees, that Libby had signed early in the investigation in late 2003 was coerced.

Miller has since said that she spent 85 days in jail -- for civil contempt of court for refusing to testify about her conversations with Libby -- because Tate had indeed indicated to her, through Abrams, that Libby's general waiver was not given freely. Miller has said she finally agreed to testify only after she got a personal waiver from Libby in September.

In his letter to Tate, Abrams said Tate had repeatedly told him that the general waiver was "by its nature coerced and had been required as a condition for Mr. Libby's continued employment at the White House."

Tate in turn has said that Abrams's claims are "outrageous" and "factually incorrect," and that neither he nor Libby had said or done anything to discourage Miller from testifying or to influence any testimony she might give.

According to sources close to the investigation, attorneys whose clients have co-operated with prosecutors, and Miller's personal account in the Times, the new issues the grand jury is likely to scrutinize:

A June 23, 2003, Miller-Libby meeting in the Old Executive Office Building during which they first discussed Wilson's CIA-sponsored trip to Niger for the purpose of looking into an allegation that Saddam Hussein sought to buy uranium from the African nation in order to build a bomb.
As National Journal reported on October 11, Libby did not disclose the June 23 meeting in two appearances before the grand jury, or, earlier, in interviews with FBI agents working on the investigation, according to sources.

Miller testified to the grand jury that it was during this June 23 meeting that she and Libby first discussed Plame's CIA employment. Miller's notes of that meeting contained the notation, regarding Wilson, "Wife works in bureau?"

In her account in The Times on her grand jury testimony, Miller wrote: "I told Mr. Fitzgerald that I believed this was the first time I had been told that Mr. Wilson's wife might work for the C.I.A. The prosecutor asked me whether the word 'bureau' might not mean the Federal Bureau of Investigation. Yes, I told him, normally. But Mr. Libby had been discussing the C.I.A., and therefore my impression was that he had been speaking about a particular bureau within the agency that dealt with the spread of nuclear, biological and chemical weapons. As to the question mark, I said I wasn't sure what it meant … Maybe Mr. Libby was not certain whether Mr. Wilson's wife actually worked there."


Libby and Miller's two-hour breakfast at the St. Regis Hotel in Washington, D.C., on July 8. Libby has told federal investigators, according to legal sources familiar with his testimony, that he told Miller at the meeting that he had heard that Wilson's wife had played a role in Wilson's being selected for the Niger assignment. But Libby also testified that he never named Plame nor told Miller that she worked for the CIA, because either he did not know that at the time, or, if he had heard that Plame was a CIA employee, he did not know whether it was true.
Miller's grand jury testimony as well her notes on the July 8 meeting contradict Libby's version. Miller's notes indicate that Libby did indeed tell her that Plame worked for the CIA. Her notes said, according to Miller: "Wife works at Winpac." Asked for an explanation by the grand jury, Miller has said she testified she knew that Winpac meant Weapons Intelligence, Non-Proliferation, and Arms Control. That was a CIA unit tracking chemical, biological, and nuclear weapons proliferation.

In her Times story on her testimony, Miller asserted: "I said I couldn't be certain whether I had known Ms. Plame's identity before this meeting, and I had no clear memory of the context of our conversation that resulted in this notation. But I told the grand jury that I believed that this was the first time I had heard that Mr. Wilson's wife worked for Winpac. In fact, I told the grand jury that when Mr. Libby indicated that Ms. Plame worked for Winpac, I assumed that she worked as an analyst, not as an undercover operative."


A third area of interest to Fitzgerald is conversations between Miller's attorney Abrams and Libby's attorney Tate, in which, according to Abrams, Tate strongly discouraged Miller's co-operation with Fitzgerald's office in giving grand jury testimony.
Miller was first subpoenaed in the CIA leak probe in August 2004. In response, The Times hired Abrams, a prominent First Amendment attorney. Abrams began a series of discussions with Tate in September 2004 to see if there was some manner by which Miller could testify.

Abrams said in an interview with National Journal that Tate passed along extensive details of Libby's grand jury testimony. Abrams also said that during those conversations, Tate inquired as to what Miller would testify to the grand jury, and whether her testimony might be potentially damaging to his client. Abrams said he responded by telling Tate he was new to the case and did not know. When pressed during a second conversation, Abrams said that he simply did not answer Tate and changed the subject.

Abrams said that Tate told him that Libby testified to the grand jury that he had never disclosed Plame's name to Miller and that he never told Miller that Plame had worked undercover at the CIA.

But Miller has told the grand jury that she had several references in her notes to Plame, although she misspelled the CIA officer's name as "Valerie Flame." Miller also told the grand jury that there was a possibility that another person, whom she could not remember, was the source of the disclosure, not Libby.

Miller wrote in her Times account that Abrams also told her: "[Tate] was pressing about what you would say. When I wouldn't give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave this, 'Don't go there, or we don't want you there.' "

However, two individuals who are familiar with accounts that Abrams provided to as many as 10 others at The New York Times -- including the newspaper's in-house attorneys, executives, and senior editorial staffers -- about his discussions with Tate, say that Miller might have misconstrued or misinterpreted what took place between Tate and Abrams.

These sources confirmed that Abrams told them that Tate said Libby's waiver was coerced, that Tate provided Abrams with details of Libby's grand jury testimony, and that Tate appeared concerned that Miller's testimony might damage his client. But the sources said that Abrams explained that Tate was simply nonresponsive when Abrams declined to say whether Miller's testimony would exonerate Libby.

"Floyd never said that Tate said anything like 'Don't go there,' or 'We don't want you there,' " said one person who attended legal strategy meetings involving Abrams, The Times' in-house legal counsel, and senior editorial staff as to how Miller might avoid jail. "Perhaps Judy extrapolated that, or misunderstood what happened."

In an October 16 staff-written piece in The Times -- separate from Miller's personal account published the same day -- the newspaper reported that based on what Miller was hearing from Abrams about Tate, Miller believed that "Mr. Tate was sending her a message that Mr. Libby did not want her to testify."

Tate has adamantly denied Abrams's account that Tate ever said or did anything to discourage Miller's cooperation with Fitzgerald's office or the grand jury. Tate has also denied Abrams's other contentions that Tate attempted to pass along to Miller what Libby told the grand jury, or that he attempted to learn from Abrams what Miller's testimony might be.


A fourth area of interest to Fitzgerald is Abrams's September 29, 2005, letter to Tate in which Abrams wrote: "In our [various] conversations … you did not say that Mr. Libby's 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 the White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion of 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."

Again, Tate has adamantly denied Abrams's allegations. In a letter to Fitzgerald, Tate told the prosecutor: "I am 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."


Fitzgerald is also interested in the September 15 letter Libby sent to Miller in jail that encouraged her to finally testify in the case. Fitzgerald questioned Miller at length about the letter when she testified to the grand jury on September 30.
In his letter, Libby wrote to Miller: "Your reporting, and you, are missed. Like many Americans, I admire your principled stand. But like many friends and readers, I would welcome you back among the rest of us, doing what you do best -- reporting." He added: "I admire your principled fight with the Government.… But for my part, this is the rare case where this 'source' would be better off if you testified."

But it is a later passage in the letter that is especially important to Fitzgerald, sources say. "Because, as I am sure will not be news to you," Libby wrote to Miller, "the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call."

In her Times account, Miller wrote: "The prosecutor asked my reaction to those words. I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job."

Bob Bennett, an attorney for Miller, said in an interview that when he first read Libby's personal letter, he knew that it was going to "be trouble" for his client. "I know that the letter bothered [Judy] and it bothered me," Bennett said. "She might be soon testifying, and a prosecutor might construe that as an attempt to influence her testimony. It was more probably just sort of a dumb thing to put in a letter."

Bennett adds: "I think it is important that Judy was protecting a source in terms of source confidentiality and the journalistic privilege. She was not protecting a source to prevent someone from going to jail. The letter just didn't help matters."


Finally, on September 29, the night before Miller was scheduled to testify before the grand jury, a source sympathetic to Libby spoke to journalists for at least three news organizations to leak word as to what Libby himself had said during his own testimony.
Journalists at two news organizations declined to publish stories. Among their concerns was that they had only a single source for the story and that that source had such a strong bias on behalf of Libby that the account of his grand jury testimony might possibly be incomplete or misleading in some way.

But more important were concerns that a leak of an account of Libby's grand jury testimony, on the eve of Miller's own testimony, might be an effort -- using the media -- to let Miller know what Libby had said, if she wanted to give testimony beneficial to him, or similar to his. (There is no evidence that Miller did not testify truthfully to the grand jury.)

On the night before Miller's testimony, The Washington Post did post an account on its Web site of Libby's testimony. The story said: "According to a source familiar with Libby's account of his conversations with Miller in July 2003, the subject of Wilson's wife came up on two occasions. In the first, on July 8, Miller met with Libby to interview him about weapons of mass destruction in Iraq, the source said.

"At that time, she asked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq tried to buy uranium in the African nation of Niger. Libby, the source familiar with his account said, told her that the White House was working with the CIA to find out more about Wilson's trip and how he was selected.

"Libby told Miller he heard that Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said."

Miller has since contradicted that account, testifying to the grand jury and turning over contemporaneous notes of her July 8 meeting with Libby indicating that Libby told her that Plame worked for the CIA's Weapons Intelligence, Non-Proliferation, and Arms Control office.

Four former federal prosecutors said in interviews that if Libby did anything to discourage Miller from testifying in the case, it might be construed as possible obstruction of justice or witness-tampering, and that a thorough prosecutor, such as Fitzgerald, would logically make an extensive inquiry as to what occurred.
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 about what occurred between Tate and Abrams, an "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 further noted that since current case law does not recognize the reporter-source privilege, "even if someone under investigation or their attorney were to contact a reporter simply to say that they expect that reporter's promise of confidentiality to the source to be kept, anyone who made such a request could possibly have engaged in an obstruction of justice or witness-tampering."