Special Prosecutor Again Queries Reporter

By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, October 12, 2005; A02



New York Times reporter Judith Miller yesterday answered questions about a previously undisclosed conversation she had with Vice President Cheney's chief of staff in June 2003, as a special prosecutor moved to decide whether to bring charges in his investigation of how a covert CIA operative's identity was leaked to reporters.

Special prosecutor Patrick J. Fitzgerald questioned Miller about notes she said she discovered last week involving a June 23, 2003, conversation with Cheney's top aide, I. Lewis "Scooter" Libby, according to a source familiar with Miller's account.

According to the source, the notes reveal that the two discussed Bush administration critic and former ambassador Joseph C. Wilson IV about three weeks before the name of Wilson's wife, covert CIA operative Valerie Plame, appeared in a syndicated column written by Robert D. Novak.

The publication of Plame's identity ultimately led to Fitzgerald's investigation of whether Plame's name was illegally leaked by administration officials in retaliation for Wilson's public criticism of the administration.

One source close to Miller said it appears that the notes were Fitzgerald's first indication that Miller and Libby had spoken in June.

Last year, Fitzgerald subpoenaed Miller's notes for discussions she had with Libby from July 6 to July 13 but included no mention of June, the source said.Previously, Fitzgerald was focused on a July 8 breakfast meeting Miller had with Libby and a phone call they had on July 12 or 13. Miller was questioned by the grand jury last month after spending 85 days in jail for initially refusing to testify about her conversations with Libby.

Libby's lawyer, Joseph Tate, did not return calls yesterday seeking comment about the implications of the notes and the conversation with Miller. Fitzgerald's office declined comment.

Numerous lawyers involved in the 22-month-old investigation said they are bracing for Fitzgerald to bring criminal charges against administration officials. They speculated, based on his questions, that he may be focused on charges of false statements, obstruction of justice or violations of the Espionage Act involving the release of classified government information to unauthorized persons. The grand jury's term is to expire Oct. 28.

"This is not a guy who would walk away with nothing," said one lawyer involved in the case. Another lawyer familiar with the case said there is no way to tell which direction Fitzgerald is going.

Libby and White House Deputy Chief of Staff Karl Rove have both testified that they mentioned Wilson's wife to reporters during the summer of 2003 but did not reveal her name or her covert status, according to sources.

After Miller testified before the grand jury Sept. 30, a source close to Miller said, Fitzgerald and her lawyer urged her to go back through her old notes and turn over any that involved Libby or would be relevant to the case, the source said.

A June 2003 conversation about Wilson between Milller and Libby occurred at a time of growing White House concern about the former ambassador after a May 6 column in the New York Times and a June 12 article in The Washington Post. Without using Wilson's name, the reports drew attention to a CIA-sponsored mission that found no evidence for a Bush administration claim used to justify war with Iraq: that Iraq was trying to purchase uranium in Niger for use in developing nuclear weapons. The CIA sent Wilson to Niger to investigate the claim.

Miller's lawyer, Robert Bennett, and a spokeswoman for the Times yesterday declined to discuss the focus of Fitzgerald's questions. They also refused to discuss whether Fitzgerald indicated that he is finished questioning her or whether she is now free to speak or write publicly about her testimony.

Some legal sources are focused on their clients' exposure under the broad language of the Espionage Act. They say a prosecutor could argue that any official or private citizen, including Rove or Libby, committed a felony by transferring classified information to reporters about Plame.

But veteran defense lawyer Plato Cacheris, who represents a former Pentagon policy analyst who pleaded guilty to violating that portion of the act last week in a separate case, said using it for contacts with reporters would be "stretching it to something the statute didn't intend."

"Everyone in town gets information like this," he said, "The press functions on getting information like this. I don't think you want to start going after that."

Staff writer Jim VandeHei contributed to this report.

Prosecutor asks NYT reporter to testify again - Yahoo! News

By Adam Entous


A federal prosecutor has summoned New York Times reporter Judith Miller to make a second appearance on Wednesday before a federal grand jury investigating the leak of a CIA operative's identity, a New York Times official said.

The decision by federal prosecutor Patrick Fitzgerald comes just days after Miller found notes from a previously undisclosed conversation -- on June 23, 2003 -- with Vice President Dick Cheney's chief of staff Lewis "Scooter" Libby.

"She is to return to the grand jury Wednesday to supplement her earlier testimony," New York Times Executive Editor Bill Keller said in a memo on Tuesday to New York Times staff, a copy of which was forwarded to Reuters.

After spending 85 days in jail, Miller testified before the grand jury for the first time on September 30 and turned over notes from her two previously disclosed conversations with Libby -- on July 8 and July 12, 2003, her lawyers said.

Fitzgerald is wrapping up his investigation into who leaked the identity of covert CIA operative Valerie Plame and whether any laws were violated.

Plame's diplomat husband, Joseph Wilson, asserts that administration officials leaked his wife's identity, which damaged her ability to work undercover, to discredit him for criticizing President George W. Bush's Iraq policy in 2003 after Wilson made a CIA-funded trip to investigate whether Niger helped supply nuclear materials to Baghdad.

Miller's notes could be significant because they suggest that Cheney's office knew who Wilson was and started talking to reporters about him some two weeks before Wilson publicly criticized the administration's Iraq policy in a New York Times opinion piece on July 6, 2003.

NATIONAL JOURNAL: Libby Did Not Tell Grand Jury About Key Conversation (10/11/05)

By Murray Waas, special to National Journal
© National Journal Group Inc.
Tuesday, Oct. 11, 2005

In two appearances before the federal grand jury investigating the leak of a covert CIA operative's name, Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, did not disclose a crucial conversation that he had with New York Times reporter Judith Miller in June 2003 about the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony.

Libby also did not disclose the June 23 conversation when he was twice interviewed by FBI agents working on the Plame leak investigation, the sources said.

Special prosecutor Patrick Fitzgerald apparently learned about the June 23 conversation for the first time just days ago, after attorneys for Miller and The New York Times informed prosecutors that Miller had discovered a set of notes on the conversation.

Miller had spent 85 days in jail for contempt of court for refusing to testify before the grand jury about her conversations with Libby and other Bush administration officials regarding Plame. She was released from jail after she agreed to cooperate with Fitzgerald's investigation. Miller testified before the grand jury on September 30, and attorneys familiar with the matter said that she agreed to be questioned further by Fitzgerald today.

Meanwhile, in recent days Fitzgerald has also expressed significant interest in whether Libby may have sought to discourage Miller-either directly or indirectly through her attorney-from testifying before the grand jury, or cooperating in other ways with the criminal probe, according to attorneys familiar with Miller's discussions with prosecutors.

During two interviews with FBI agents and in two subsequent grand jury appearances, Libby discussed at length a July 8, 2003, conversation about Plame that he and Miller had at the St. Regis Hotel in Washington, D.C., as well as a July 12 telephone conversation with Miller on the same subject four days later.

Although Miller would never herself write about Plame, it was two days after her last conversation with Libby that conservative columnist Robert Novak would reveal Plame as a CIA "operative" in his now-famous column of July 14, 2003.

The previously undisclosed June 23 meeting between Libby and Miller, their telephone conversations of July 8 and 12, and Novak's July 14 column occurred during an intensive period in which senior White House officials were scrambling to discredit Plame's husband, former Ambassador Joe Wilson, who was then publicly asserting that the Bush administration had relied on faulty intelligence to bolster its case for war with Iraq.

Wilson had returned only recently from a CIA-sponsored mission to Niger to investigate claims that Saddam Hussein was covertly attempting to buy enriched uranium from the African nation to build a nuclear weapon. Wilson reported back that the allegations were most likely the result of a hoax. But President Bush still cited the Niger allegations during his 2003 State of the Union address as evidence that Hussein had an aggressive program to develop weapons of mass destruction. In a July 6, 2003, op-ed piece in the New York Times, Wilson charged that the administration misrepresented the intelligence information he had collected on the Niger mission.

FBI agents interviewed Libby in October and November 2003, and the following year he voluntarily appeared twice before the grand jury, according to government records and interviews. But he never disclosed anything to the FBI, prosecutors, or the grand jury about his June 23 conversation with Miller, sources say.

Joseph A. Tate, an attorney for Libby, did not return telephone calls seeking comment for this story. In an earlier interview, he said that neither he nor Libby would comment on anything that Libby might have told the FBI or the grand jury until the investigation was complete.

The new revelations regarding Libby come as Fitzgerald has indicated that he is wrapping up his investigation and making final decisions as to whether criminal charges will be brought in the case. The term of the grand jury that is hearing evidence expires on October 28.

Attorneys familiar with Miller's discussions with prosecutors said that Fitzgerald and his staff have expressed interest to Miller and others about the role that Libby and his attorney may have played in discouraging Miller from testifying in the Plame investigation.

During the earliest stages of the probe, Libby signed a general waiver granting permission to any reporter to whom he talked to testify to Fitzgerald and the grand jury. Several journalists, including Time magazine's Matthew Cooper, NBC Washington Bureau Chief Tim Russert, and a reporter for The Washington Post relied on such a waiver to provide testimony regarding their conversations with Libby.

A federal judge, however, sent Miller to jail when she refused to testify. Miller said she considered the general waiver to be coerced and would testify only if Libby provided her with a specific, personalized waiver. Libby and Tate took the position that the general waiver precluded the need for a personal waiver.

It was only after Fitzgerald personally intervened with Tate and Libby that Libby granted a personal waiver to Miller, according to correspondence between Fitzgerald and Tate. Libby subsequently telephoned Miller, encouraging her to testify.

On September 12, 2005 Fitzgerald wrote a letter to Tate that was marked "confidential." In his letter, Fitzgerald said that Libby's and Tate's refusals to provide a more specific waiver for Miller led the prosecutor to have "assumed that Mr. Libby had simply decided that encouraging Ms. Miller to testify was not in his best interest." Three days later on September 15, Libby wrote Miller a personal letter urging her to testify, and then telephoned her again urging that she testify.

Meanwhile, also on September 15 Tate wrote to Fitzgerald adamantly denying that his client's refusal to provide a personalized waiver to Miller was meant to discourage her from testifying.

"Mr. Libby did voluntarily provide your team with the written waiver immediately when it was presented to us, well over a year ago", Tate wrote to Fitzgerald. Tate also asserted that he repeatedly "assured" Miller's attorney Floyd Abrams that "Mr. Libby's waiver was voluntary and not coerced and [Miller] should accept it for what it was."

However, on September 29 Abrams wrote to Tate challenging that assertion. Abrams charged that Tate had indicated to him that Libby had considered the general waiver by its very nature to have indeed been coercive. "In our conversations," Abrams wrote to Tate, "you did not say that Mr. Libby's written 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 White House employees asserting the Fifth Amendment. A failure by your client to sign the written waiver, you explained, like any assertion by 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."

In interviews, both Tate and Abrams said that the other was misrepresenting their conversations. Tate did not return recent phone calls for this story. But in an interview in August-before Libby gave Miller the personalized waiver-Tate said the failure of his client to provide a personal waiver was "because we didn't think that we had to do anything different for Judy than everyone else." Tate added that, "She was and is free to interpret our behavior any way she wants."

Abrams, however, insisted that in several conversations Tate had "left no doubt whatsoever that a general waiver was inherently coercive. There just was very little room for any misunderstanding."

What exactly transpired between the two attorneys may prove to be extremely important to prosecutors, according to legal experts and outside legal observers not directly involved in the case.

A senior Justice Department official said in an interview that "any affirmative statement or action" that "would discourage Miller might be construed to be an obstruction of justice." The official, who has no direct involvement with the Plame probe, requested to speak on the condition of anonymity due to the political sensitivity of the investigation. "Any thorough prosecutor is going to look long and hard at that," the official said.

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 as to what occurred between Tate and Abrams, "[A]n 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 suggested that because Fitzgerald has already been investigating allegations of perjury and obstruction of justice by officials of the Bush administration, the prosecutor might be motivated to examine additional evidence of such conduct because it might demonstrate a pattern of behavior.

Rory Little, a professor of law at the University of California and a former federal prosecutor and associate attorney general in the Clinton administration said that when a special prosecutor is conducting in a high-profile investigation, as opposed to a more routine case probed by an ordinary prosecutor, most private attorneys would act with even greater caution in not sending signs to a potential witness not to co-operate. "A special prosecutor has a very narrow focus," said Little. "The prosecutorial lens is going to be even more focused on both the actions of an attorney and their client."

Although Libby and his attorney declined to comment for this article, Tate had said in a letter to Fitzgerald that he was "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." Tate also said he was confident that Miller's "testimony, when added to those of the other reporters... will assure you and the grand jury that Mr. Libby acted properly and lawfully in all respects."

But the senior Justice official added that even in the absence of hard evidence of an obstruction, "a prosecutor is going to want to know why a subject of (the) investigation did not want a witness to co-operate, and why they would allow someone to linger in jail for more than eighty days, unless they had something to hide. That is going to lead many prosecutors to redouble his efforts."

-- Murray Waas is a Washington-based journalist. His previous article, focusing on White House Deputy Chief of Staff Karl Rove's role in the Valerie Plame case, was published on Oct. 7.