Libby Trial: Judy Miller's Memory Mess

From my "Capital Games" column at www.thenation.com....

When special counsel Patrick Fitzgerald was prepping for the trial of Scooter Libby, he probably looked toward the moment when he would call former New York Times reporter Judith Miller to the stand and thought, We're just going to have to get through that day.

Miller, the controversial journalist whose prewar reporting hyped the WMD threat posed by Iraq, was called as a prosecution witness on Tuesday, and she was pummeled by Bill Jeffress, an attorney for Libby, who has been charged with making false statements to the FBI and grand jury investigating the CIA leak.

Initially, Fitzgerald briskly guided Miller through her account--a story already publicly known. On June 23, 2003, she met with Libby, Vice President Dick Cheney's chief of staff, in the Old Executive Office Building next to the White House. Libby was frustrated and angry about media accounts--some fueled by intelligence community leaks--that suggested the Bush White House had misrepresented the prewar WMD intelligence. He was particularly upset, according to Miller, about stories that had appeared regarding an unnamed ex-ambassador who had taken a trip to Niger in 2002 to investigate the allegation that Iraq had tried to buy uranium there and who had concluded the charge was unfounded. Libby told Scooter the former diplomat was Joseph Wilson and said, as an aside, that Wilson's wife worked at the CIA. In her notes, Miller wrote that the wife was employed at the "bureau," a reference to a nonproliferation office within the CIA. She said that this was the first time she had heard anything about Wilson's wife working at the CIA. She also testified that Libby referred to Wilson's trip as a "ruse" and "irrelevancy."

She met with Libby again on July 8--two days after Wilson outed himself as the ex-ambassador in a New York Times op-ed. This time Miller and Libby rendezvoused at the dining room of the St. Regis Hotel in Washington. During the two hour discussion, according to Miller, Libby was "quietly agitated." He defended the administration's use of the prewar intelligence, claiming there had been solid intelligence to back up President George W. Bush's use of the uranium-in-Africa allegation in his 2003 State of the Union speech. Libby maintained that Wilson's reporting had supported the conclusion that Iraq had sought uranium in Niger. (That's not how Wilson saw it.) Libby again referred to Wilson's wife and said she was employed at WINPAC--the acronym for the CIA's Center for Weapons Intelligence, Nonproliferation and Arms Control, a unit of the agency's intelligence directorate. (Libby was wrong. Valerie Wilson was the operations chief of the Joint Task Force on Iraq, a unit within the Counterproliferation Division of the agency's clandestine operations directorate.)

During this meeting, Miller testified, her pen didn't work. But she still managed to take some notes. She didn't explain how. Perhaps she scratched away with the tip of the pen.

She also testified about a third conversation with Libby. This was a July 12, 2003 phone call. The two discussed Wilson's wife, and Miller informed Libby that her paper wasn't interested in pursuing the "Plame story."

Though Fitzgerald had sent Miller to prison for 85 days after she had refused to cooperate with his investigation, she was a to-the-point witness who gave the prosecutor what he wanted: another account showing that Libby was in the know about Valerie Wilson and was discussing her with others (in this case, a reporter) before the leak outing her as a CIA officer appeared in Robert Novak's July 14, 2003 column. Miller's testimony contradicted Libby's claims that in the days prior to the leak he did not know about Valerie Wilson's CIA connection and that he had not leaked any information regarding her to reporters.

Then came Jeffress. He immediately went for the underbelly: Miller's memory. While being questioned by Fitzgerald, Miller acknowledged that in the fall of 2005 when she first appeared before Fitzgerald's grand jury--after getting out of jail--she had completely forgotten about her first meeting with Libby. She told the grand jury only about the July 8 meeting and the July 12 phone call. On the witness stand, she testified that during her initial grand jury appearance, Fitzgerald had asked her to review her notebooks. That night she did so and discovered notes referring to the June 23 meeting at the Old Executive Office Building. She immediately called her lawyer, and soon she was back before the grand jury to talk about that first conversation with Libby.

Jeffress feasted on this. For years, he noted while questioning Miller, she had not remembered the June 23 meeting at all. Then suddenly she could recall details from it. What Libby had said about Wilson's wife. How Libby was behaving. What his mood was. From the time the leak story broke in the summer of 2003 until her second grand jury appearance in fall of 2005, nothing had caused her to recall that meeting, Jeffress noted. "The meeting of June 23 was not memorable to you," Jeffress said, putting it as both a question and declaration. "I didn't remember that it even occurred," Miller replied.

Miller explained that after she reviewed her notes she had a good memory of certain parts of the encounter. Jeffress then quoted Miller's own statements from before the grand jury and from a media interview in which she said her memory was not so sharp about these matters. And he went on and on, clawing at the wound, making this Pulitzer Prize-winning reporter seem like she was so daft she couldn't remember her own shoe size without notes.

This was a twist. When the story first came out in the fall of 2005 that Miller had forgotten her first meeting with Libby, her critics howled. How could she, they wondered (accusingly), have not remembered such an important session? Surely, she was covering up for Libby--or someone. But on the stand, she appeared genuine. She was fighting for her reputation--what's left of it--and did not want to be depicted as a conjurer of untrustworthy memories. Now it was Libby's lawyers (not liberal bloggers) who were assaulting her, challenging her credibility. At one point, when the back and forth became a bit confusing, Jeffress snidely asked, "Do you remember my question?"

It was a thrashing. And by the end of the day, it wasn't over. The trial was sidetracked by a reprise of the issue that landed Miller in jail: whether she would disclose her confidential sources. Had Miller met with other sources around the time of her June 23 meeting with Libby? Jeffress asked. Yes, she said. Who were they? "I don't recall," Miller answered. "Can you name one?" Jeffress asked. Before she could reply, the lawyers--included her own attorney, Robert Bennett--were huddling with Judge Reggie Walton. Was Jeffress asking Miller to reveal sources other than Libby? Would she do so? Libby's lawyers argued that she could not refuse to disclose the names of these other sources. Fitzgerald maintained this was an irrelevant question. Ted Wells, a Libby lawyer, said that Miller would probably say she had forgotten--and he could use such a statement to impeach (further) her credibility. There was much wrangling, and the judge sent the jurors home.

The matter was not fully resolved by the time the judge had to leave. That left open the possibility that Miller might again be asked to talk about her sources. But this time--in yet another twist--Fitzgerald was on her side, trying to help the journalist he had once jailed. However this question would be decided, Miller left the court expecting more punishment from Jeffress. He noted before court recessed that he was not done with her and would resume his romp through the Miller memory mess the next morning.

Jeffress' attack on Miller was no surprise. He and Wells have been doing all they can to question the memories of every prosecution witness. With Miller, it was more brutal. Still, Fitzgerald had called to the stand yet another witness who challenged Libby's statements to the FBI and a grand jury. The jurors in this case will have to ask themselves, are all of the prosecution witnesses wrong? Is this a parade of people who are each misremembering events--and doing so in the same way? Miller added to the quantity, not the quality, of Fitzgerald's case--but quantity is not irrelevant when the issue is they-said/he said.

Earlier in the day--before the Miller massacre--David Addington, Cheney's chief of staff (Libby's replacement), finished his turn in the dock. Addington testified about a conversation he had with Libby shortly before the criminal investigation of the CIA leak began in September 2003. According to Addington, Libby said, "I just want to tell you I didn't do it." Addington did not ask what the "it" was. Libby then asked Addington how a person would know if they had met a CIA employee who was undercover. Addington, who had once worked at the agency, said you might not know unless you saw a document or were told. Addington offered to bring Libby a copy of the Intelligence Identities Protection Act, the law that prohibits government employees from disclosing information about secret intelligence officers. And Addington later dropped off a copy with Libby.

One interpretation this exchange would be that Libby--despite his protestation to Addington--was worried he might be a target of the criminal investigation. That could have caused him to lie to the FBI and the grand jury investigating the case. (A Libby advocate might argue that if he believed he had done no wrong, he'd have no reason to lie.)

When Wells had his chance to cross-examine Addington, he fired in several different directions. Wells introduced into evidence a note Libby had taken on June 12, 2003. On this day, The Washington Post had published an article that referred to the Wilson trip without naming the former ambassador.

Libby's note indicates that in a phone conversation that day, Cheney told Libby that Wilson's wife worked at the "CP" division--a reference to the CIA's Counterproliferation Division. The note suggests that Cheney shared with Libby other information the vice president had gathered on Wilson and his trip. Cheney also told his chief of staff that he had not known about the Wilson mission and had not received any report on Wilson's findings.

The June 12 note is a piece of evidence that has been cited by the prosecution in pretrial submissions. It shows that Libby learned where Valerie Wilson worked from his boss. The obvious question is, would Libby really have forgotten this information, as he has claimed? The note also indicates that for Cheney the Wilson matter was a priority--enough so that on his own he had obtained information on the then-unnamed ambassador and his trip to Niger. (How Cheney gathered this information on Joseph and Valerie Wilson remains a secret.)

So why did Wells introduce the note? He moved on to another Libby note--one written after Libby had met with Addington following the publication of Wilson's op-ed piece. In that conversation, according to Addington's testimony on Monday, Libby had asked him whether a president had the authority to declassify secrets on his own and whether there would be paperwork if a CIA officer sent a spouse on an overseas mission. Libby's note regarding the meeting recorded the two subjects this way: "1) declass 2) Wilson K." (K is lawyer shorthand for contract.) Wells noted that this document did not contain any reference to a CIA "spouse." He was trying to make a slim point: Libby used the word "spouse" in a June 12 note but did not do so in a note written a month later; so maybe Addington is wrong when he said the two of them talked about a CIA spouse.

Wells also endeavored to advance the Karl-Rove-set-up-Scooter-Libby theory he had previewed in his opening argument. (See here.) He cited a set of notes Libby had taken at a senior staff meeting that indicated Rove was keen on countering Wilson's charges. Then he presented a note written by Cheney when the leak investigation was underway. The White House by this point had publicly (but falsely) claimed that Rove was not involved in the leak. Cheney wanted the same for Libby. The Cheney note reads,

Has to happen today.

Call out to key press saying the same thing about Scooter as Karl.

Not going to protect one staffer + sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others.

The note also contained talking points, written by Libby, that he and Cheney wanted Scott McClellan, the White House press secretary, to recite at a press briefing:

I've talked to Libby. I said it was ridiculous about Karl [being involved in the CIA leak] and it is ridiculous about Libby. Libby was not the source of the Novak story. And he did not leak classified information.

Referring to this set of notes, Wells asked, if Libby was "being hung out as a scapegoat in public?" Addington said that he had no idea. But Addington added that after McClellan made a statement reflecting these talking points, he (Addington) told Dan Bartlett, the White House communications director, that the White House ought not to discuss criminal investigations in public. But your boss wanted this done, Bartlett told Addington.

Wells was trying to bolster his earlier contention that Libby was somehow turned into a sacrificial lamb by White House powers more interested in protecting Rove. But so far Wells has introduced little to support this narrative. And the evidence he referenced while questioning Addington indicated that the White House press office did what Cheney had asked it to do: protect Libby. That's not how you hang someone out to dry.

Wells and Jeffress are fortunate. They are not bound by memory or truth. They only have to challenge the government's case. They can do so by undermining the prosecution witnesses or by tossing out alternative (and confusing) scenarios, without having to prove any single theory of the case. Or by doing both. With Miller on the stand, they had their best day yet. If only her prewar reporting had been so fiercely challenged.

Posted by David Corn at January 30, 2007 11:03 PM