Now That Ms. Huffington Has Come Out and Said It...

One of the great questions that has remained unanswered -- and virtually unasked -- in the Rove-Plame scandal is, just what is Judy Miller in jail for? Is it simply refusing to disclose a source to whom she promised confidentiality? Or is it something a little more elaborate, perhaps a more active participation in the effort to discredit Ambassador Wilson?

There's certainly plenty of evidence that Miller has taken on roles not normally associated with reporting, in Iraq in particular. If she did play some other role in the transmission of classified information on Plame's identity -- for example, if she passed the information from a person authorized to hold classified information to another who was not -- then even if a reporter's shield existed, she would be no more entitled to it than would a lawyer who actively participates in a conspiracy be entitled to attorney-client privelege.

Arianna Huffington has broken the respectful silence by going all the way with this speculation:

It's July 6, 2003, and Joe Wilson's now famous op-ed piece appears in the Times, raising the idea that the Bush administration has "manipulate[d]" and "twisted" intelligence "to exaggerate the Iraqi threat." Miller, who has been pushing this manipulated, twisted, and exaggerated intel in the Times for months, goes ballistic. Someone is using the pages of her own paper to call into question the justification for the war -- and, indirectly, much of her reporting. The idea that intelligence was being fixed goes to the heart of Miller's credibility. So she calls her friends in the intelligence community and asks, Who is this guy? She finds out he's married to a CIA agent. She then passes on the info about Mrs. Wilson to Scooter Libby (Newsday has identified a meeting Miller had on July 8 in Washington with an "unnamed government official"). Maybe Miller tells Rove too -- or Libby does. The White House hatchet men turn around and tell Novak and Cooper. The story gets out.

This is why Miller doesn't want to reveal her "source" at the White House -- because she was the source...in this scenario, Miller certainly wasn't an innocent writer caught up in the whirl of history. She had a starring role in it. This also explains why Miller never wrote a story about Plame, because her goal wasn't to write a story, but to get out the story that cast doubts on Wilson's motives.

This really is speculation of the rawest sort. It's a scenario that various people have been dancing around and hinting at for weeks, but now it's out there. There are some other versions of this scenario, but they all involve Miller playing a key role in transmitting the information from one place in the executive branch (what Huffington refers to as "the intelligence community," but which could mean various things, including Bolton's office) to another, the political arm of the White House.

Add to Huffington's speculation a much more informed story in the Wall Street Journal about the divergence of approaches between Time, Inc. and the Times. The heart of the story has to do with the realization by Time and Matthew Cooper that they did not necessarily have the same interests as Miller and the Times, and should not share a lawyer, Floyd Abrams. (Abrams takes a vicious swipe at Cooper, saying that "From Judy's perspective, the first thing she wanted to know was what to do to protect her confidential sources, rather than what to do to stay out of jail.") One point of difference is that Time concluded that it owned the electronic file of Cooper's notes, or at least his e-mail to an editor, while The Times's position, and Miller's, has been that she alone holds the information.

But toward the end of the story, it suggests something else was going on: that at some point, when Time Inc. editor-in-chief Norm Pearlstine got involved, he realized that the case was a very big deal, one that could put the company at risk for contempt charges, and that he had to figure out an acceptable way out. His counterpart at the Times, however, publisher Arthur Sulzberger, Jr., seems not to have taken the matter so seriously, proposing at a meeting that they respond by distributing buttons that read, "Free Judy, Free Matt, Free Speech." The Journal reports that "Pearlstine demurred."

Given that the Times does not seem to want to know what's in Miller's notes, and given Sulzberger's less serious approach to the charges, it's time to add another question. Now it's not just, "What is Judy Miller in jail for?" It's also, "Does the New York Times know what Judy Miller's in jail for?" And, "Does the New York Times care?"

Comments

[theCoach]

Would't Punch's demeanor suggest that Judy Miller does not have, or at least Punch is not aware of, any ulterior motivations?

[arthur]

I'm sure that no one at the Times knows what information Miller has. The New York times has had every incentive not to ask Miller what was in her notes from the moment she was subpoenaed. Anyone with access to the information would sooner or later be subpoenaed, and woudl end up follwing Ms. Miller to jail.

[Cole]

So the question that begs to be answered, if this scenario is true, is Who is guilty of committing a crime?

Are Rove or Libby, after (knowingly?) receiving classified info from a reporter who received it from a source with secret security clearance and passing it along to a reporter? Or, is only the original source guilty of a crime?

Surely Ms. Miller is not, since she passed the info on to someone who already had clearance to know this information and did not write the story (regardless of her motives).

Or are Rove or Libby still guilty because regardless of who the intermediary was, they still cannot pass along or confirm classified information to someone without clearance?

Or did O.J. do it?

[fnook]

Cole: you're overthinking, I think. Assuming all the speculation is true (a rather large assumption at this point), don't forget that we're in the criminal realm here and I seem to recall that the standards for criminal "conspiracy" are broad and far-reaching.

[Swopa]

Arianna Huffington has broken the respectful silence by going all the way with this speculation.... It's a scenario that various people have been dancing around and hinting at for weeks, but now it's out there.

I suppose there's no established intellectual-property law regarding "speculation of the rawest sort," but for whatever it's worth, Arianna's scenario is extremely similar to one I posted at Needlenose on July 2nd ... even pre-dating Josh Marshall's one-line hint in the same direction.

As it happens, Arianna herself linked to that post of mine a few days later. (How independent that is from her current theorizing, I don't know.)

In response to Cole, my hunch is that Libby already had the information about Wilson's wife from some genuinely classified source -- via the State Dept. memo, Bolton or one of his flunkies, or some other link -- but was reluctant to use it for risk of prosecution.

When Miller's tip came in, there was much pumping of fists -- "We're good to go! Tell Ari and Karl!" Either intentionally (say, if Bolton or one of his underlings gave her the info) or accidentally, Miller laundered the leak so that Libby, Rove et al. thought they were legally clear for spreading the word.

And I think Fitzgerald has her in jail specifically so he can answer the either/ors that I've mentioned.

[Bruce Webb]

"Surely Ms. Miller is not, since she passed the info on to someone who already had clearance to know this information"

Cole you are missing a component. It is not sufficient to have clearance, you also had to have the "need to know". I had a secret clearance because I had to have knowledge of a single frequency of a single radar I was charged with maintaining. Did that mean I had carte blanche to wander into the Radio Room and read the classified traffic? Hell no.

Did Karl Rove have "the need to know" to learn the identity of Valerie Plame? Unless you put the political interests of GWB and Judy Miler in disguising the fact that they had been flim-flammed by Ahmed Chalabi ahead of the US national security interests you would have to conclude "No". And under the law Karl's first responsibility would have been to call the CIA and report the leak.

The Right is desperately trying to find a Get out of Jail Free card, some wiggle room for Karl Rove. But there are hundreds of thousands, perhaps millions of Americans who have security clearances for one reason or another. And each and every one knows this is not how it works.

We executed the Rosenbergs for passing along classified information. Jonathon Pollard is in jail for life for passing classified information to our second closest ally. Security officers are humorless people who take leaks seriously. They are not likely to be taken in by the spin and it will take serious pressure from the very top to squash this.

[global yokel]

Has Patrick Fitzgerald called Sulzberger in to testify before the grand jury? I'm betting that he knows a lot of what his employee Judith Miller also knows.

[Anno-nymous]

We know what Judy Miller is in jail for, don't we? Contempt of court. If they wanted to put her away for a "real" crime, wouldn't they just charge her with that?

I guess this question is really about grand juries. Is there a fifth amendment right in grand juries to refuse to testify in order to avoid self-incrimination? Because if Judy Miller was actually a target of prosecution, then it seems like she would have a right not to testify, and so couldn't be charged with contempt.

[Cole]

To fnook, swopa, and Bruce Webb, thanks for your comments to my post.
fnook, I wasn't referring to a conspiracy; but instead a single crime. I don't think there was a conspiracy involving Miller, Cooper or Novak. As far as anyone in the White House, I have no opinion.

Bruce, I included in my supposition; "to know this information". I was putting forth the hypothetical that Rove or Libby are permitted to know this info. As far as Miller, it is not a crime for someone in the public realm to repeat classified information. So my point dealt with only her "non-guilt" in that scenario. I agree with your postulation about the duty to report the leak, etc.

Swopa, in your scenario, doesn't the law say that persons with the proper clearance (Libby or Rove, in this case) are not even allowed to "confirm" the information? So even if it were already out there, would they not have been bound to refrain from any comment on it whatsoever?

[Cole]

Clarification: When I said it's not a crime for a person in the public realm to repeat classified info, I was referring to this case only. Passing it along to an enemy is, of course, illegal.

[fnook]

The 5th Amend rights don't apply in grand jury proceedings.

[Mark Schmitt]

To fnook, No, that's not true. People invoke their right against self-incrimination in grand juries all the time. There are a half-dozen reasons, though, that Miller might choose to invoke the press-source privelege rather than the 5th. One is that she might have been advised that, even if she was a part of the chain of transmission, she is less likely to have violated the IIPA or other laws. Another might be that invoking the 5th would be a red flag to the Times, which would probably refuse to pay her legal expenses and might also be compelled to turn over any e-mail or notes that are in the paper's possession. And, she would not be a martyr.

[fnook]

Makes sense Mark, I stand corrected. She's having to make some complex choices, with probably less than perfect information about the prosecution's case. It certainly would be odd for someone who doesn't stand formally accused of criminal behavior to take the 5th in front of a grand jury. Other people might talk, it's sure to get their attention, etc. Better to attempt a heroic stand on principle, or so goes the theory. Big lies are all the fashion. The bigger the better. Like folks who won't accept the germ theory of disease. How can you defend against that? The only answer, as some commenter at TPM cafe yglesias recently pointed out in a different context, is: shrill parody. It's the only remaining available option, and it's fun!

[Anno-nymous]

Thanks for the clarification.

[Horatio Parker]

IIRC, a grand jury can force immunity and by so doing void the 5th amendment.

I wonder if Cooper isn't the bigger fish, since he was threatened with criminal contempt. There has been talk of charging Miller with criminal contempt since her imprisonment, but I haven't seen anything that indicated that she was threatened with criminal contempt in her negotiations.

[Murphy]

"The Right is desperately trying to find a Get out of Jail Free card, some wiggle room for Karl Rove."

Bruce, nobody actually cares about this story, certainly nobody on the Right. But please keep occupying yourself with the investigation. Vital work this pursuit of truth and all.

The trouble is, Karl Rove isn't the source of your torment. It's the 51 million voters who support President Bush.

[anon]

Maybe Judy is more afraid of her White House sources than she is of the law.

[Alex]

"It's the 51 million voters who support President Bush."

Murphy, if you rephrased this into the past tense it would be less inaccurate.