The Meeting

Prospect: Why Won't Scooter Libby Let Judy Miller Talk?

(The American Prospect) 
Libby signed a more generalized waiver during the early course of the investigation granting journalists the right to testify about their conversations with him if they wished to do so. At least two reporters -- Walter Pincus of The Washington Post and Tim Russert of NBC -- have testified about their conversations with Libby.

But Miller has said she would not consider providing any information to investigators about conversations with Libby or anyone else without a more specific, or personal, waiver. She said she considers general waivers to be inherently coercive. Bill Keller, the executive editor of The New York Times, has previously said Miller had not been granted "any kind of a waiver ... that she finds persuasive or believes was freely given."

Libby has never offered to provide such a personalized waiver for Miller, according to three legal sources with first-hand knowledge of the matter. Joseph A. Tate, an attorney for Libby, declined to comment for this story.

In response to questions for this article, Catherine J. Mathis, a spokesperson for the Times, said, "We don't have any comment regarding Ms. Miller's whereabouts on July 8, 2003." She also added, "Ms. Miller has not received a waiver that she believes to be freely given."

It is also unclear whether Miller would testify to Fitzgerald's grand jury even if she were to receive such a personalized waiver from Libby. Her attorney, Floyd Abrams, said in an interview: "Judith Miller is in jail and at continued jeopardy. ... I have no comment about what she might do in circumstances that do not now exist."

But numerous people involved in the case said in interviews for this story that a personalized waiver for Miller by Libby could potentially pave the way for Miller's release. Miller's testimony, in turn, might be crucial to a determination as to whether anyone might be criminally charged, and even to a potential end to the criminal investigation.

At least two attorneys representing private clients who are embroiled in the Plame probe also privately questioned whether or not President Bush had encouraged Libby to provide a personalized waiver for Miller in an effort to obtain her cooperation.

In a memorandum distributed to White House staff members shortly after the investigation became known, Attorney General Alberto Gonzalez, who at the time was White House counsel, wrote, "The president has directed full cooperation with this investigation." Bush himself said: "{I}f there is a leak out of my administration, I want to know who it is. And if the person has violated the law, the person will be taken care of."

Congressman Rush Holt, Democrat of New Jersey and a member of the House Intelligence Committee, while sidestepping the specifics as to whether Bush should order Libby to provide a personalized waiver for Miller, said in an interview Friday evening: "I would say the president has the power to help us get to the bottom of this matter. And we in Congress want to do this not so much for what has happened but to prevent such a thing from happening again."

Just how crucial Miller's testimony -- most notably her meeting with Libby -- might be to concluding Fitzgerald's investigation is best underscored in part by a filing in federal court last March that his investigation had been "for all practical purposes complete" as long as six months earlier, except for the potential testimony of Miller and Time magazine correspondent Matthew Cooper.

The investigation had become "stalled," Fitzgerald asserted, almost entirely by the refusal of Miller and Cooper to testify. Declaring that "{t}he public's right to have this investigation concluded diligently should be delayed no further," Fitzgerald sought the jailing on civil contempt of court charges of both Miller and Cooper.

Facing civil penalties, Time magazine abruptly reversed course and turned over its confidential notes to Fitzgerald, while Cooper testified to the federal grand jury about his conversations with Rove, Libby, and others regarding Plame and Wilson. In contrast, Miller refused to cooperate with prosecutors and was ordered to jail.