"Note to self: do not EVER play poker with Patrick Fitzgerald."

Mark Kleiman
10.09.2005

Patrick Fitzgerald's

Mousetrap

Link Here

Just back from the LA Blogger Bash, where Jane Hamsher of Firedoglake patiently explained to me her theory, and that of emptywheel of The Next Hurrah, of how it came to pass that Judith Miller suddenly discovered some notes about her meetings with "Scooter" Libby, Dick Cheney's chief of staff, after her grand jury testimony.

If it's not -- as I suspect it is -- a brilliant and plausible inference that accurately ties together disparate facts, it's one of the best pieces of legal fiction ever penned. You should read both of the linked items in full, but here's the idea as I understand it:

1. The revelation of Plame's identity to Cooper and Novak (among others) was part of an attack on Joseph Wilson's credibility that started before, and not after, his NYT op-ed of July 6, 2003. Wilson had already been the unnamed source of press reports casting doubt on the uranium-from-Niger story, and the White House Iraq Group was out to get him, for self-protection and retaliation.

2. Miller planned to write a story about Wilson, prompted by Libby and members of the W.H.I.G.; those plans were pre-empted by his op-ed. (Or perhaps when he learned that his role as a source for Kristof was going to be revealed anyway, he decided to tell the story himself.)

3. Libby had told the grand jury about his conversations with Miller in July, but not about conversations in June relating to the story that Miller planned to write but never wrote. Those conversations would have been hard to reconcile with the story Libby and his friends were trying to peddle: that their attacks on Wilson were purely defensive responses to his op-ed.

4. Unbeknownst to Libby and Miller, Fitzgerald had learned of those June conversations, either from Wilson or from someone at the Times.

5. As Fitzgerald expected, Miller in her testimony did not mention the June conversations with Libby. (Libby's letter to Miller contains language that might be read as signaling to her that she should confine her testimony to the July conversations.) Fitzgerald asked her leading questions which, without tipping her off about how much Fitzgerald knew, put her in the position of having to testify falsely in order to avoid mentioning those conversations.

6. Once Miller's testimony was over, Fitzgerald called her lawyer and said, "Why didn't your client mention the June conversations when she was asked about them?" It was that phone call that triggered Miller's sudden discovery of the June notes.

7. Having caught Miller committing perjury, Fitzgerald is now in a position to, in effect, renege on his agreement to ask her only about her conversations with Libby. Under the terms of that agreement, Fitzgerald can't compel her to testify about conversations with other people, but she can of course do so voluntarily. And Fitzgerald can tell her lawyer that if she fails to volunteer, she may be looking at substantially more than 85 days behind bars on charges of perjury, conspiracy to obstruct justice, being an accessory to Libby's violations of the Espionage Act, or being a co-conspirator with him and others in those violations. (This is perfectly acceptable prosecutorial conduct, not even close to any ethical line.)

Instead of a mere percipient witness, Miller is now a potential defendant, and Fitzgerald can try to "flip" her against all of her sources, not just Libby.

Jane concludes:

Note to self: do not EVER play poker with Patrick Fitzgerald.

Well, right. And I would add: do not enter a spy-novel-writing contest against Jane Hamsher or emptywheel. I don't often encounter anyone with a mind more devious than my own, but in this case I bow to either superior penetration or superior invention. Whether this is Fitzgerald's plot or Jane's, its author has a wickedly brilliant intellect.

Update Tom Maguire notes that Fitzgerald's subpoena to Miller covered only documents after July 6. So why, Tom asks, is Ms. Miller suddenly so talkative? Count that as another puzzling phenomenon that the Hamsher theory explains nicely.

---Very Very Interesting.---