Now that the dust has settled in the I. Lewis (“Scooter”) Libby trial, was it necessary to have put JudithMiller in jail?The answer is no.
Special Prosecutor Patrick Fitzgerald did not need her.He had plenty of other witnesses to convict Mr.Libby without her.He had seven government employees and two journalists (MattCooper and TimRussert) to say Mr.Libby lied.
Further, Mr.Fitzgerald knew he had these witnesses before forcing Ms.Miller, against her will, to become an additional one.All these witnesses testified at the grand jury before Ms.Miller was subpoenaed.She was virtually the last.
Mr.Fitzgerald should have stopped, looked and listened before provoking a major press controversy by jailing Ms.Miller.But he did not.
It is clear now that after hauling Ms.Miller before the grand jury, she turned out to be what lawyers call a “weak witness.”She could not remember enough of two meetings she had in person with Mr.Libby to prove Mr.Libby lied to her.
Mr.Fitzgerald, therefore, left these two meetings out of the part of the indictment that charged Libby with lying.They could not prove Mr.Libby’s perjury.
Instead, he said in the indictment, a cell phone call from Mr.Libby to Ms.Miller after these meetings proved obstruction of justice.But after U.S. District Judge Reggie B. Walton heard Ms.Miller testify as to this phone call, he ruled it could not be used.
This was a stunning development that was ignored by the press.The reason why Ms.Miller was essential for the trial disappeared.In a sense, Mr.Fitzgerald put Ms.Miller in jail for nothing.
The problem for the court was that Ms.Miller had no clear recollection of what Mr.Libby told her about ValeriePlame.Ms.Plame was the CIA agent who was outed.
She was therefore of little use to Mr.Fitzgerald.The defense knew it.Mr.Fitzgerald knew it.And Judge Walton knew it.Mr.Fitzgerald did not object when the judge ruled out Ms.Miller’s testimony.
It is fair to say Mr.Fitzgerald knew Ms.Miller was not going to be of much use to him in the trial before it began.Her grand jury testimony must have been a great disappointment to him and, no doubt, he felt chagrined.
Accordingly, when he drew up the indictment he left her out of most of it.TimRussert and MattCooper had important places.They, not Ms.Miller, Mr.Fitzgerald said, would be used to prove Mr.Libby lied
He only threw Ms.Miller in the indictment to prove obstruction of justice and then the judge threw her out.It’s a fair guess Mr.Fitzgerald knew this was going to happen.
But could you imagine the hullabaloo there would have been if Ms.Miller’s name had not appeared in the indictment as it did.Mr.Fitzgerald’s press conference, which has been cited for its excellence, would have been marred by a hounding press as to what happened to Ms.Miller.
So what happened to Ms.Miller?She had three conversations with Mr.Libby, two in person and one on the phone.She could not remember them with the precision the criminal law requires for criminal conviction.
Why was it Mr.Cooper and Mr.Russert had a clear recollection as to what Mr.Libby said about Ms.Plame but not Ms.Miller?This was because Mr.Libby sought herout for an entirely different purpose.
As Ms.Miller testified, Mr.Libby wanted to leak to her part of the 2002 National Intelligence Estimate (NIE).This was the estimate that was given to Congress so that it could authorize the war against Iraq.Some of this estimate was given to the public, but most of it remains classified to this day.
President GeorgeW.Bush declassified parts of it so that it could be leaked by Mr.Libby.He wanted to use it to support the administration’s view of weapons of mass destruction.
Ms.Miller was not buying it.Mr.Libby’s main purpose in meeting with her was frustrated.It is not surprising Ms.Miller’s recollection of what Mr.Libby said about Ms.Plame was not as clear as Mr.Russert’s and Mr.Cooper’s.
Mr.Libby’s conversations with them were straight to the point and focused on Ms.Plame.They had not been targeted for leaks about the NIE.
Can we blame Mr.Fitzgerald for creating a major press conflict and then ending up with a witness he did not need?Ordinarily not, but this was no ordinary case.He already had nine witnesses to prove his case.
Ms.Miller was icing on the cake.Yet Mr.Fitzgerald told the court she was essential for his case.This was not true.He had his case wrapped up before Ms.Miller testified.
He knew he could issue a five-count indictment without hearing one word from Ms.Miller: two counts each for Mr.Russert and Mr.Cooper and one for obstruction.He was shooting to include Ms.Miller in two more counts.This way he could have a seven-count indictment.
But weren’t five counts enough?He won a conviction on four of those five counts.
Mr.Fitzgerald is a good prosecutor.But a very good prosecutor exercises discretion.It would have been an excellent use of discretion for him to have stopped when he was ahead.
Instead he caused a major press crisis, jailed a reporter and then ended up with a “weak” witness.This trip was unnecessary.
There is an old adage on Wall Street that might be applicable here: “be a bull, be a bear, but don’t be a pig.”While the application of this argot to Mr.Fitzgerald, who has only the highest reputation, may be going further than necessary, a close examination of what happened to Ms.Miller, makes this a legitimate question to ask.