Thursday, October 6, 2005

How Fitzgerald Got Miller to Testify -- And How Much Should We Know

When New York Times reporter Judith Miller testified before the grand jury investigating the leak of the identity of CIA operative Valerie Plame, she ended three months of confinement for civil contempt once she received assurances from her source that he truly waived any confidentiality agreement they had.  Special counsel Patrick Fitzgerald appears to have played the key role in prodding I. Lewis Libby,  Vice President Cheney's chief of staff and one of Miller's sources, to reaffirm his waiver.  Fitzgerald sent a letter to Libby's lawyer, Joseph Tate, dated Sept. 12, outlining his position that if Libby truly wished to release Miller from the confidentiality agreement -- and thereby provide the key to her jail cell -- he could do so with the assurance that any action he took in this regard would not be viewed as obstruction of justice.  Fitzgerald's letter, which is now publicly available here, provides a detailed review of Libby's involvement in the investigation, including specific references to interviews and grand jury appearances.  Although the letter was most likely meant to be kept private, I wonder whether the reference to a witness's appearance before the grand jury violates the secrecy provision of Rule 6(e), even if that information was already known through disclosures by Libby (and Tate).  The Rule does not contain a "public disclosure" exception to the strict secrecy requirement.

The letter is also interesting because of its extensive references to press reports on the positions of Libby and Miller regarding the waiver and their status in the grand jury investigation.  Like most everything else in Washington, this appears to be an example of discussion by leak, e.g. "sources close to the investigation" and the like.  Once again, if any of the information came from Fitzgerald's office, there is a risk of a Rule 6(e) violation, which could spawn yet another investigation. It would be hard to avoid the irony of an investigation into leaks about an investigation into leaks.   Of course, the publication of Fitzgerald's letter shows how much this case involves use of the media as a conduit of information in support of one's position.  (ph)

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