Lawyer Casts Blame on Reporter for Time in Jail

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By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, October 4, 2005

A lawyer for I. Lewis "Scooter" Libby, Vice President Cheney's chief of staff, said yesterday that New York Times reporter Judith Miller and her attorneys are responsible for Miller's 85 days in jail, reiterating that she was given permission a year ago to tell a prosecutor about private conversations she had with Libby.

Libby's attorney, Joseph A. Tate, escalated the sharp dispute over exactly when Libby freed Miller to be questioned by special prosecutor Patrick J. Fitzgerald, who is investigating whether any government officials broke the law by leaking the identity of covert CIA operative Valerie Plame.

Miller was released from jail Thursday after serving more than 12 weeks for refusing to testify about her July 2003 conversations with Libby, on the grounds that she was protecting her source. Her release followed a lengthy conversation with Libby, during which he assured her that he had voluntarily given his permission for her to testify before a grand jury. Libby also wrote Miller a letter containing the same assurances. She testified Friday.

But Tate has said repeatedly -- and underscored in yesterday's letter -- that Libby cleared Miller to talk to Fitzgerald a year ago and that the waiver of Miller's confidentiality promise was completely voluntary.

Tate told Miller attorney Floyd Abrams that he is engaging in "spin control" by suggesting in interviews that Tate had a year ago described Libby's waiver to Abrams as conditional and inherently coerced. He also accused Abrams of failing to mention in media interviews that Abrams never told Tate that Miller had doubts about the waiver or wanted to speak to Libby directly.

"The significant fact that you continue to omit, and that seems to be lost here, is that you never told me that your client did not accept my representation of voluntariness or that she wanted to speak personally with my client," Tate wrote. "Even you can't spin those facts away. That is the answer to this unfortunate circumstance of your client's incarceration, not any failure on our part."

The argument between Libby's and Miller's attorneys erupted after Miller's release, when she said she had changed her mind and agreed to testify after finally obtaining a "personal, voluntary" waiver from Libby to do so. A second factor in Miller's decision was a recent agreement with Fitzgerald to limit his questions solely to her conversations with Libby.

Abrams said in an interview yesterday that Tate did consider Libby's waiver coerced in one respect -- because Libby was required to sign it as part of his government employment. Abrams said he did not go back to Tate to seek a more personal waiver because Miller did not want to push her source. Also, at that time, Abrams said, Fitzgerald would not agree to limit his questions to Miller's conversations with Libby.

"Judy was very reluctant to seem to be putting pressure on a source to release her to speak," Abrams said. "And at the time, it would not have solved the other issue."

The issue of whether Libby and Tate made clear that Libby was releasing Miller from her promise of confidentiality a year ago is critical to the reputations of both the reporter and her source.

Libby, a senior member of the Bush administration who is now a central figure in Fitzgerald's investigation, maintains that he had no fear of being incriminated by Miller's testimony and, in fact, that it would benefit him. Miller, meanwhile, steadfastly insists that she and the Times were upholding a core journalistic principle of protecting confidentiality once it is guaranteed to a source.

Friends close to Miller say she and her attorneys feared, however, that Fitzgerald would seek a judge's permission to keep her detained for as long as 18 months after her jail term was set to end Oct. 28.

Correspondence among Tate, Libby, Abrams, Miller and Fitzgerald -- three of the letters were posted on the Times's Web site last week -- also provide new details about the negotiations that led to Miller's release.

In a Sept. 15 letter, Libby tells Miller how much he admires her "principled" stand but urges her to testify about their conversations and get out of jail. "For my part, this is the rare case where this 'source' would be better off if you testified," he wrote.

"You went to jail in the summer. It is fall now," he continued. "Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work -- and life."

Libby also wrote that he released her and other reporters to speak because "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."

Libby was prompted to contact Miller, in part, by another letter three days earlier from Fitzgerald to Tate. In his letter, Fitzgerald said he wanted to be sure Miller is not in jail because of a "misunderstanding" about the nature of Libby's waiver and her ability to speak about their discussions in July 2003. The prosecutor wrote that he had assumed Miller had remained in jail for three months because she was either ignoring Libby's release of her or "because Mr. Libby had decided that encouraging Ms. Miller to testify to the grand jury was not in his best interest."

Tate wrote back to Fitzgerald immediately, saying that Libby definitely considered Miller's testimony to be in his best interest and that he had encouraged her to testify a year earlier. He noted that at least four other reporters had relied on waivers from Libby allowing them to talk about conversations with him during the same time period.

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