Murray Waas, one of the most reliable Plamegate reporters since the beginning of this sordid story, has a long and juicy column today at the National Journal. The first part of the article relates to possible perjury charges against Lewis "Scooter" Libby as a result of discrepancies between his and Judith Miller's grand jury testimony, particularly with respect to their July 8 meeting and June 23 conversation.
Far more interesting and significant are the many details Murray so cogently puts together on whether Libby tried either to discourage Miller from testifying or to influence her testimony so it would match what he told the grand jury.
If grand jurors believe that Libby tried to influence Miller's testimony, not only could it result in an obstruction of justice or witness tampering charge, it could make them distrustful of everything Libby told them. Put another way, in instances in which the grand jury has to weigh Libby's version against that of other witnesses, the grand jury might decide that someone who tried to discourage another witness from testifying probably did so because he had done something wrong-- like lie -- rather than because he forgot about a conversation or its details.
Potentially misleading and incomplete answers by Libby to federal investigators are less likely to be explained away as the result of his faulty memory or inadvertent mistakes, the sources said. According to a Justice Department official not directly involved with the Plame case, "Both intent and frame of mind are often essential to bringing the type of charges Fitzgerald is apparently considering. And not wanting a key witness to testify goes straight to showing that there were indeed bad intentions."
The allegation that Libby tried to discourage Miller from testifying or influence her testimony arose after Fitzgerald learned from news accounts in August that Miller believed Libby's general waiver did not include her. In a letter, Fitzgerald encouraged lawyers (pdf) for Libby and Miller to try and work out the waiver issue.
A dust-up ensued between Miller's lawyer Floyd Abrams and Libby's lawyer Joseph Tate. Abrams accused Tate of telling him a year ago that Libby's waiver had been coerced. Tate denies it. The flap appears to have raised a lot more than just Fitzgerald's eyebrows. Waas reports today that in an interview with the National Journal, Abrams stated:
.... Tate passed along extensive details of Libby's grand jury testimony. Abrams also said that during those conversations, Tate inquired as to what Miller would testify to the grand jury, and whether her testimony might be potentially damaging to his client. Abrams said he responded by telling Tate he was new to the case and did not know. When pressed during a second conversation, Abrams said that he simply did not answer Tate and changed the subject. Abrams said that Tate told him that Libby testified to the grand jury that he had never disclosed Plame's name to Miller and that he never told Miller that Plame had worked undercover at the CIA.
So, according to Abrams, Tate disclosed the details of Libby's testimony to him. If true, the question arises, for what purpose? Hopefully for Libby, it was not to make sure that his and Miller's versions of events matched.
Waas also reports on an issue that has arisen as to whether Miller may have misunderstood her lawyer's statements about Libby's waiver.
Miller wrote in her Times account that Abrams also told her: "[Tate] was pressing about what you would say. When I wouldn't give him an assurance that you would exonerate Libby, if you were to cooperate, he then immediately gave this, 'Don't go there, or we don't want you there.' "
However, two individuals who are familiar with accounts that Abrams provided to as many as 10 others at The New York Times -- including the newspaper's in-house attorneys, executives, and senior editorial staffers -- about his discussions with Tate, say that Miller might have misconstrued or misinterpreted what took place between Tate and Abrams...... the sources said that Abrams explained that Tate was simply nonresponsive when Abrams declined to say whether Miller's testimony would exonerate Libby. "Floyd never said that Tate said anything like 'Don't go there,' or 'We don't want you there,' " said one person who attended legal strategy meetings involving Abrams, The Times' in-house legal counsel, and senior editorial staff as to how Miller might avoid jail. "Perhaps Judy extrapolated that, or misunderstood what happened."
This meshes with a Washington Post report the other day:
In an interview yesterday, Abrams declined to endorse Miller's account that Libby did not want her to testify unless she was going to exonerate him. "That's Judy's interpretation," Abrams said. Tate "certainly asked me what Judy would say, but that's an entirely proper question."
So, now a sub-layer -- the disparate recollections and assertions of Floyd Abrams, Joseph Tate and Judith Miller-- have become a story in themselves and one that is of key interest to Patrick Fitzgerald.
Waas next reports that Libby's September 15th personal correspondence (pdf) to Miller still looms large for Fitzgerald.
But it is a later passage in the letter that is especially important to Fitzgerald, sources say. "Because, as I am sure will not be news to you," Libby wrote to Miller, "the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me, or knew about her before our call."
In her Times account, Miller wrote: "The prosecutor asked my reaction to those words. I replied that this portion of the letter had surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job."
Murray saves the best for last. It seems a source close to Libby called three news organizations on September 29, the night before Miller testified before the grand jury, to recount what Libby had told the grand jury about his converations with Miller. Two of the news groups didn't report it, thinking the source might be using them to get Libby's account out to Miller before her testimony.
But more important were concerns that a leak of an account of Libby's grand jury testimony, on the eve of Miller's own testimony, might be an effort -- using the media -- to let Miller know what Libby had said, if she wanted to give testimony beneficial to him, or similar to his. (There is no evidence that Miller did not testify truthfully to the grand jury.)
The Washington Post did report it in a September 30 article by Susan Schmidt and Jim Vanderhai. The article may no longer be on line, but Dan Froomkin quotes from it here. Since we know that Fitzgerald reads the Post, one has to wonder whether he will assume that Libby's source tried to clue Miller in on Libby's testimony so she could testify the same way he did.
Schmidt and VandeHei write: "According to a source familiar with Libby's account of his conversations with Miller in July 2003, the subject of Wilson's wife came up on two occasions. In the first, on July 8, Miller met with Libby to interview him about weapons of mass destruction in Iraq, the source said. "At that time, she asked him why Wilson had been chosen to investigate questions Cheney had posed about whether Iraq tried to buy uranium in the African nation of Niger. Libby, the source familiar with his account said, told her that the White House was working with the CIA to find out more about Wilson's trip and how he was selected."
"Libby told Miller he heard that Wilson's wife had something to do with sending him but he did not know who she was or where she worked, the source said. "Libby had a second conversation with Miller on July 12 or July 13, the source said, in which he said he had learned that Wilson's wife had a role in sending him on the trip and that she worked for the CIA. Libby never knew Plame's name or that she was a covert operative, the source said."
What are grand jurors to make of all of this? Again, it's going to turn on whether they think Libby was trying to influence Miller's testimony. If they conclude he was, they well may decide there is no innocent explanation for anything he's done or said to date -- including his failure to tell them about the June 23 conversation and his claim that he didn't discuss Joseph Wilson's wife's employment at the CIA at the July 8 meeting.
The bottom line: Libby appears to be in a heap of trouble. In addition to charges of perjury or making false statements to federal officials, he might be looking at obstruction of justice and witness-tampering. And those are just the possible offenses for conduct occurring after the leak of Valerie Plame's identity. If he's also charged with offenses relating to the leak, which is what started this investigation in the first place, he's in very bad shape.
If, as many speculate, this all happened because of Libby's desire to get back at Joseph Wilson for his statements about his trip to Niger, there's one lesson I bet Libby is learning: Revenge is a dish better served cold.