Scooter Libby and Judy Miller met on July 8, 2003, two days after Joe Wilson published his column. And Patrick Fitzgerald is very interested.
By Murray Waas
Web Exclusive: 08.06.05
I. Lewis “Scooter” Libby, the chief of staff to Vice President Dick Cheney, has told federal investigators that he met with New York Times reporter Judith Miller on July 8, 2003, and discussed CIA operative Valerie Plame, according to legal sources familiar with Libby's account.
The meeting between Libby and Miller has been a central focus of the investigation by special prosecutor Patrick J. Fitzgerald as to whether any Bush administration official broke the law by unmasking Plame's identity or relied on classified information to discredit former Ambassador Joseph C. Wilson, according to sources close to the case as well as documents filed in federal court by Fitzgerald.
The meeting took place in Washington , D.C. , six days before columnist Robert Novak wrote his now-infamous column unmasking Plame as a "CIA operative." Although little noticed at the time, Novak's column would cause the appointment of a special prosecutor, ultimately place in potential legal jeopardy senior advisers to the president of the United States , and lead to the jailing of a New York Times reporter.
The meeting between Libby and Miller also occurred during a week of intense activity by Libby and White House deputy chief of staff Karl Rove aimed at discrediting Plame's husband, Wilson, who on July 6, 2003, had gone public in a New York Times opinion piece with allegations that the Bush administration was misrepresenting intelligence information to make the case to go to war with Iraq.
Miller was jailed in July -- two years to the day after Wilson ’s Times op-ed appeared -- for civil contempt of court after she refused to answer questions posed to her by Fitzgerald’s grand jury regarding her contacts discussing Plame with Libby and other Bush administration officials. Ironically, even though she never wrote a story about Plame, she has so far been the only person jailed in the case.
The new disclosure that Miller and Libby met on July 8, 2003, raises questions regarding claims by President Bush that he and everyone in his administration have done everything possible to assist Fitzgerald's grand-jury probe. Sources close to the investigation, and private attorneys representing clients embroiled in the federal probe, said that Libby's failure to produce a personal waiver may have played a significant role in Miller’s decision not to testify about her conversations with Libby, including the one on July 8, 2003.
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. 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.
More specifically, the importance prosecutors attach to learning what occurred during Miller's meeting with Libby is illustrated by a subpoena by Fitzgerald's grand jury of Miller on August 20, 2004, for "any and all documents (including notes, e-mails, or other documents) relating to any conversations, occurring on or about July 6, 2003 to on or about July 13, 2003, between Judith Miller and a government official whom she met in Washington D.C. on July 8, 2003, concerning Valerie Plame Wilson."
Miller was also ordered to bring to the grand jury "documents provided to Judith Miller by such government official on July 8, 2003."
Details of the subpoena to Miller were first disclosed in a story in Newsday by reporter Tom Brune.
In an affidavit prepared by Miller to respond to the request, Miller said she "did not receive any documents" from the person she met, but declined to say who the person was that she met on July 8.
In subsequent court papers filed in federal court by attorneys for Miller and The New York Times, the newspaper said that Miller "had no documents responsive" to Fitzgerald's request of any documents given to her on July 8, 2003.
But Miller's affidavit and other court filings by the Times -- and the narrow language contained therein -- did not say whether Miller might have read or reviewed any documents that might have brought to the July 8, 2003, meeting.
And an attorney in private practice who once worked closely with Fitzgerald while both men were federal prosecutors said that the specific nature of Fitzgerald’s request was a "good indication that [Fitzgerald] has specific information ... or perhaps even a witness who saw, or had other information" that Libby "might have brought documents to the meeting with Miller."
In her affidavit, Miller also asserted: "I have never written an article about Valerie Plame or Joe Wilson. I did however contemplate writing one or more articles in July 2003, about issues related to Ambassador Wilson's op-ed piece. In preparation for those articles, I spoke and/or met with several potential sources. One or more of those potential sources insisted as a precondition to providing information to me, that I agree to maintain the confidentiality of their identity."
The Libby-Miller meeting and the publication of Novak's column unmasking Valerie Plame as a CIA "operative" came during an intensive period of time while senior White House officials were scrambling to discredit her husband, former Ambassador Wilson, who was then asserting that the Bush administration had relied on faulty intelligence to bolster its case to go to war with Iraq.
Wilson had only recently led 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 had 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.
When Wilson sought out White House officials believing they did not know all the facts, he was rebuffed. He then went public with his criticism of the Bush administration. It was then that senior administration officials began their campaign to discredit Wilson to counter his criticisms of them.
Rove and Libby, and to a lesser extent then-deputy National Security Council (NSC) adviser Stephen J. Hadley (who is currently Bush's NSC adviser), directed these efforts. Both Rove and Libby discussed with Novak, Cooper, and other journalists the fact that Wilson 's wife worked for the CIA, and that she was responsible for sending him to Niger , in an effort to discredit him.
The manner by which Rove and Libby learned of Plame's employment as a CIA employee before they shared that information with journalists is central to whether any federal criminal laws regarding classified information were violated. Rove and Libby have reportedly claimed that they learned of the information from journalists.
But investigators have focused on whether Rove or Libby rather first learned about Plame's CIA employment and her possible role in recommending that her husband be sent to Niger from a classified State Department memo circulated to senior Bush administration officials in the days just prior to their conversations with journalists.
Dated June 10, 2003, the memo was written for Marc Grossman, then the undersecretary of state for political affairs. It mentioned Plame, her employment with the CIA, and her possible role in recommending her husband for the Niger mission because he had previously served in the region. The mention of Plame's CIA employment was classified "Secret" and was contained in the second paragraph of the three-page classified paper.
On July 6, 2003, Wilson published his New York Times op-ed and appeared on Meet the Press. The following day, on July 7, the memo was sent to then-secretary of state Colin L. Powell and other senior Bush administration officials, who were scrambling to respond to the public criticism. At the time, Powell and other senior administration officials were on their way to Africa aboard Air Force One as members of the presidential entourage for a state visit to Africa .
Rove and Libby apparently were not on that trip, according to press accounts. But a subpoena during the earliest days of the Plame investigation demanded records related to any telephone phone calls to and from Air Force One from July 7 to July 12, during Bush's African visit.
On July 8, Novak and Rove first spoke about Plame, according to numerous press accounts. That was also the day that Libby and Miller met in Washington , D.C. , to discuss Plame.
On July 9, then-CIA director George Tenet ordered aides to draft a statement that the Niger information that the President relied on "did not rise to the level of certainty which should be required for the presidential speeches, and the CIA should have ensured that it was removed." Rove and Libby were reportedly involved in the drafting of that statement’s language.
Three days later, on July 11, Rove spoke about Plame to Cooper.
On the following day, July 12, an administration official -- apparently not Rove or Libby -- told Washington Post reporter Walter Pincus that Wilson was sent to Niger on the recommendation of his wife. But Pincus has said that he did not publish a story because he “did not believe it true.”
Two days later, on July 14, Novak published his column disclosing Plame's employment with the CIA, describing her as an "agency operative" and alleging that she suggested her husband for the Niger mission.
According to Novak's account, it was he, not Rove, who first broached the issue of Plame's employment with the CIA; Rove at most simply said that he, too, had heard much the same information. Rove had provided a similar account to investigators.
On July 17, Time magazine posted its own story online, which said: "[S]ome government officials have noted to Time in interviews ... that Wilson 's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction. These officials have suggested that she was involved in her husband's being dispatched to Niger ."
Because the information in the classified State Department memo and what was reported in Novak's column and the Time story were so strikingly similar, investigators have vigorously pursued whether Rove, Libby, and others learned of her CIA employment either from the memo, someone else in the administration, or other classified references to Plame circulating within the White House.
Fitzgerald's staff and grand jury have queried a slew of Bush administration officials as to who received and read the classified State memorandum; whether Rove or Libby learned that Plame was employed with the CIA either directly from the memorandum or from others who had read it; and whether any reporters had conversations regarding the matter with Rove and Libby.
Libby has reportedly told Fitzgerald that he first learned of Plame's identity from NBC Washington bureau chief Tim Russert. But Russert has told investigators that he never told Libby about Plame. Rove said that he first learned the information from his conversation with Robert Novak.
By saying that they learned the information from reporters, the stakes are dramatically raised for the two White House aides: If it turns out that it can be shown that they learned the information from a classified source, such as the State Department memo, they could be in legal jeopardy for disclosing classified information. And if they misled investigators or the federal grand jury on that question, that trouble could be compounded.
The one person with some of the answers as to whether Libby is telling the truth very well may be Judith Miller. But she currently is incarcerated in an Alexandria jail. Lewis Libby appears to have the ability to ascertain Miller’s release by simply signing a specific, personal waiver that she disclose what she knows.
But Libby does not appear to be willing to do that.
And the president of the United States -- at whose pleasure Libby serves and who has vowed to do everything possible to get to the truth of the matter -- does not appear to be likely to direct Libby to grant such a waiver any time soon.
Murray Waas is an investigative reporter. He will be reporting further about the Plame grand jury on his blog, Whatever Already.