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The Judy Miller Theory Does Not Exonerate Rove

There's been some speculation here, at the Washington Note, and in Mickey Kaus that the idea that "Judy Miller did it" might actually help exonerate Karl Rove, Lewis Libby and others in the Plame scandal.

I need to get my head out of the weeds of this thing, but I want to clarify a bit of my own thinking. My theory isn't "Judy Miller did it," but simply that she had a role in this that was not exactly the same as that of journalist interviewing sources for a story she happened not to write. Based on her past conduct, elaborated in much more detail by Arianna Huffington, who has the advantage of moving in overlapping social circles with Ms. Miller, I'm speculating that she played some role in the effort to discredit Wilson. Whether she was the key point of transmission from one part of the executive branch to another, I don't know, and it hardly matters.

I don't think the Rove/Libby defense -- at least the defense that will matter if they are indicted -- is simply that they learned it from a reporter. Whether they learned it from "the intelligence community" via Miller or more directly, or through other executive branch officials, matters not at all. It was classified information and they had every reason to believe it was classified.

I think their defense will hinge on the argument that they heard it from multiple reporters. This will allow them to argue that whether Plame's status was covert or not, the CIA obviously hadn't done a good job of protecting it. Once you've heard something from several reporters, it's pretty much in the public domain. That's a reasonable defense, if it's true. It also matches what we're told Rove told the grand jury -- that Cooper told him about Plame, and that he heard it from at least one other journalist as well -- and the defense that the administration's proxy warriors, from Cliff May to the Toensings, have been promoting for two years.

But if it's not true, and if Rove really did testify to the grand jury that he heard about Plame from multiple reporters, and that can be disproven, then there's the perjury charge that's the icing on the cake.

Again, in short: We know nothing for sure about Judy Miller's role here, but there's ample reason to think that she's in jail for something more than just withholding a journalistic source, and also reason to suspect that the Times doesn't know for sure what they're paying Floyd Abrams to protect. Rove's defense, however, does not depend on the argument that he heard the info from Judy Miller, but rather that he heard it from so many reporters that it was, in effect, de facto declassified.

Posted by Mark Schmitt on August 2, 2005 | Permalink


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"I need to get my head out of the weeds of this thing..."

Everyone loves a good mystery.

Posted by: Petey | Aug 2, 2005 4:18:54 PM

"Once you've heard something from several reporters, it's pretty much in the public domain. That's a reasonable defense, if it's true."

Unfortunately for Rove, its not a reasonable defense at all. First, I'd like to point out that the Intelligence Identities Protection Act of 1982 is not the only statute which Rove and or Libby might face criminal liability. There are several others, most of which are far easier for the prosecutor to use to go after the leakers.

Second, it does not matter whether or not the "CIA has done a good job" of protecting someone's identity. It merely needs to be taking a single step of any kind to protect the identity of the agent. That's it. There is no "everybody knew it" defense written into the law. The whole thing is a gigantic red herring.

One has to remember that these hoops that have to be jumped through are big and set low to the ground deliberately to make it easy for prosecutors to do their job--prosecute criminals.

Fitzgerald is probably the best prosecutor in the U.S. today--he's convicted bin Laden, mobsters, you name it. He wouldn't be doing all of this unless he really had something.

Posted by: Rob W | Aug 3, 2005 4:40:53 PM

Re: "also reason to suspect that the Times doesn't know for sure what they're paying Floyd Abrams to protect"

What do you base your suspicion on?

My intuition was the same, from their editorials and the passionate way they fought the case, UNTIL this editorial:

"A Few Thoughts on Karl Rove
Published: July 13, 2005

.....Mr. Rove could clear all this up quickly. All he has to do is call a press conference and tell everyone what conversations he had and with whom. While we like government officials who are willing to whisper vital information, we like even more government officials who tell the truth in public."

That's when it seemed to me like they knew. It's just a guess on my part from being a long-time reader. Was just curious why you thought the same.

Oh, also, does anyone know if Joe Wilson ever changed his tune on Judith Miller from his initial response to her sentencing? In that public letter, implies she is "collateral damage" and a victim like his wife.

"...Thus has Ms Miller joined my wife, Valerie, and her twenty years of service to this nation as collateral damage in the smear campaign...."

I thought that was odd; that still bothers me--he should have had a sense if she was "enemy."

Posted by: artappraiser | Aug 5, 2005 11:22:01 AM