Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, has "a problem" in the investigation of the leak of a CIA operative's identity if his testimony conflicts with information given to the grand jury by New York Times reporter Judith Miller, her lawyer said yesterday.
Robert S. Bennett, speaking on the ABC program "This Week" on the day the Times disclosed new information about three conversations Miller had with Libby about the CIA employment of a White House critic's wife, said that "much would depend upon what Mr. Libby said to the grand jury.
"If he said that he had not talked to Judy about these things or didn't talk about the wife, then he's got a problem," Bennett said, referring to CIA operative Valerie Plame, the woman at the center of the leak investigation. Miller told prosecutors that "to the best of her recollection she did not know of" Plame's employment at the CIA "before she spoke to Mr. Libby," he said.
Bennett would not speculate whether Libby was trying to steer Miller's eventual testimony -- an action that could be considered an attempt to obstruct justice, through an alleged suggestion by his lawyer and language in a personal letter sent to her last month that encouraged her to testify.
But he did call Libby's reference to part of the Sept. 15 letter to Miller "very troubling."
"Our reaction when we got that letter, both Judy's and mine, is that was a very stupid thing to put in a letter because it just complicated the situation," Bennett said.
The details of Miller's exchanges with Libby come as special prosecutor Patrick J. Fitzgerald appears to be winding up his 22-month investigation of whether any government official leaked Plame's name to retaliate for criticism of the administration by Plame's husband, former ambassador Joseph C. Wilson IV. The grand jury's term will expire Oct. 28.
Fitzgerald's investigation began in December 2003 as an inquiry into whether disclosure of Plame's identity as a CIA operative to columnist Robert D. Novak by two senior administration officials was a violation of federal law. Novak, in his column of July 14, 2003, disclosed the name of Wilson's wife, described her as a CIA "operative," and described her alleged role in arranging Wilson's trip to Niger to determine whether Iraq was seeking uranium from that country.
But over the past year, Fitzgerald's inquiry has apparently broadened. Some people familiar with the case believe he is trying to determine whether the leak of Plame's identity was part of a conspiracy within the Bush administration to discredit Wilson for his statements critical of the White House's use of intelligence in the run-up to the invasion of Iraq.
Karl Rove, President Bush's senior political adviser, who testified before the grand jury for the fourth time on Friday, is another possible target of Fitzgerald's inquiry. Rove told Time magazine correspondent Matt Cooper about the CIA employment of Wilson's wife two days before Novak's column appeared, and did not tell investigators about that conversation when first interviewed, according to lawyers familiar with his testimony.
Joseph E. diGenova, a U.S. attorney in the Reagan administration and former independent counsel who investigated the leak of information about President Bill Clinton's passport file, said that "there's no question that when you don't reveal something that appears to be material to an investigator initially, it raises questions in a prosecutor's mind and perhaps a grand juror's mind."
Speaking on ABC, he added that Fitzgerald has to determine whether that initial failure to disclose "was purposeful or an accident."
Bennett said: "Fitzgerald is putting together a big case, and he's looking for little pieces of a puzzle."
Miller, in her article in yesterday's Times, said she had conversations with Libby that took place on June 23, July 8 and July12, 2003. All three occurred before Plame's identity was publicly disclosed in Novak's column. According to Miller's notes, Libby spoke about Wilson's wife during all three conversations and associated her with the CIA.
The possibility of an obstruction-of-justice charge arises out of separate events, both associated with Miller's refusal to testify about her conversations with Libby until she felt she had a completely voluntary waiver of their confidentiality agreement. Miller spent 85 days in jail for refusing to testify before a grand jury.
According to the Times story, one of Miller's lawyers, Floyd Abrams, was authorized in the summer of 2004 to talk to Libby's lawyer, Joseph A. Tate, about whether Libby, who had signed a paper waiver, "really wanted her to testify." The story said that "Tate had said she was free to testify," but Abrams added that "Tate also passed along some information about Mr. Libby's grand jury testimony: that he had not told Ms. Miller the name or undercover status of Mr. Wilson's wife."
With that information, the Times said, Miller concluded that Libby was sending her a message that he did not want her to testify. The newspaper added that "Mr. Tate called Ms. Miller's interpretation 'outrageous.' "
Yesterday, Bennett would not say that Tate was trying to steer Miller's testimony, but that he thought it "complicated things" and that "Judy felt she did not have the clear personal waiver she needed."
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."
Abrams also minimized Miller's assertion that another source may have given her the name "Valerie Flame," as she recorded it in the same notebook used for her first interview of Libby. Abrams said others may have mentioned Plame only "in passing. . . . The central and essentially only figure who had information was Libby."
In mid-September, with Miller having been in jail for more than two months, further negotiations involving Fitzgerald, Tate and Miller's lawyers, including Bennett, took place. The result was the Sept. 15 letter from Libby to Miller, in which he again told her that he wanted her to testify. But the letter included this sentence: "The public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me."
Bennett said the sentence "was a very stupid thing to put in a letter," and though he would not say it was another possible attempt to steer her testimony, "it was a close call and she was troubled by it."
According to Miller's first-person account, Fitzgerald asked during her grand jury testimony about Libby's letter. Miller said, "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 that we had not discussed Ms. Plame's identity." But she added that "my notes suggested that we had discussed her job."
Staff writer Jim VandeHei contributed to this report.