October 17, 2005
"Don't Go There"
One aspect of New York Times reporter Judith Miller's case, presented in great (although sometimes slippery) detail in the newspaper (here), includes some hotly disputed interchanges in 2004 between Joseph Tate, the lawyer for the Vice President's chief of staff, I. Lewis Libby, and Miller's then-lawyer, Floyd Abrams. According to the Times, Tate described to Abrams part of Libby's grand jury testimony in which Libby said he did not give Miller the name or status of Valerie Plame as a CIA operative. According to Miller, Abrams told her that when he told Tate that there could be no assurances that Miller's testimony would be consistent with Libby's, Tate allegedly responded "Don't go there, or, we don't want you there." Special prosecutor Patrick Fitzgerald ultimately examined Miller about whether she believed Libby wanted her to conform her testimony to his.
The role of the lawyers has been crucial in the investigation. Miller's new lawyer, Robert Bennett (former lawyer for President Bill Clinton in the infamous Paula Jones deposition), negotiated her release after Libby provided assurances of his waiver of confidentiality. Fitzgerald even played a key role in that process, sending a letter to Tate stating that any contact with Bennett regarding Miller testifying (or not) would not be viewed as being an obstruction of justice. But, could Miller's (and Abrams') recitation of the conduct of Tate -- who vehemently denies telling Abrams "Don't go there" or even implying that --constitute obstruction of justice? Interestingly, lawyers receive special treatment under the obstruction of justice statutes because legal counseling can often involve telling a client to do things that could be viewed as impeding an investigation. 18 U.S.C. Sec. 1515(c) (here) provides: "This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding." Tate's statement, if made to Abrams, would likely fall within the "safe harbor" as bona fide legal services. "Don't go there" is not a request that Miller change her testimony, and "we don't want you there" is even vaguer. Communicating with a lawyer, and not the witness, would likely take the conduct even further away from obstruction, unlike a case where a lawyer meets with a witness and suggests testimony.
In the hail of information on the investigation of the Plame leak, it is getting more difficult to separate out who said what to whom, and when. Ultimately, that's the challenge that Fitzgerald and his staff faces in deciding whether there has been any criminal conduct that can be proven. (ph)
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