When you already have a fall guy, use him–especially if he’s a dead man.
Could that be the legal strategy of I. Lewis Libby (a.k.a. Scooter), Vice President Dick Cheney’s chief of staff, in the Plame/CIA leak case?
The news of the day in this scandal is that New York Times reporter Judith Miller, who was imprisoned for refusing to cooperate with special prosecutor Patrick Fitzgerald, is free. She and the Times cut a deal with Fitzgerald, after Miller had served 12 weeks for being in contempt of court. Under this arrangement, Miller agreed to testify before Fitzgerald’s grand jury and to hand over edited version of her notes.
This is not much of a noble denouement to Miller’s crusade for the First Amendment. Throughout this episode, she and her paper took what appeared to be an absolutist position against cooperating with subpoena-wielding prosecutors who yearn to poke around newsrooms–while other reporters accommodated Fitzgerald. Now Miller and the Times have also elected to cooperate. But what distinguishes her case is that it seems she went to jail because of a mistake.
Upon her release, Miller declared she had been imprisoned because “a journalist must respect a promise not to reveal the identity of a confidential source.” She added, “I am leaving jail today because my source has now voluntarily and personally released me from my promise of confidentiality regarding our conversations relating to the Wilson-Plame matter.” This source was Libby. But a lawyer for Libby, Joseph Tate, told The Washington Post on Friday that a year ago he had informed Floyd Abrams, an attorney for Miller, that Libby had waived confidentiality and that Miller was free to discuss her chats with Libby. (The New York Times account of this–which presumably was heavily lawyered–is rather convoluted; if you want to avoid a headache, stick to the Post piece.) Only a few weeks ago, Tate said, he was contacted by Robert Bennett, another Miller attorney, and was told that Miller had not accepted Libby’s waiver and was in jail protecting Libby. Tate claimed he and Libby were “surprised to learn we had anything to do with her incarceration.” The lawyers for Libby and Miller arranged a phone call between the two, in which Libby apparently assured Miller his year-old wavier was voluntary. Then she and the Times negotiated a deal with Fitzgerald.