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


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.


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?


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.


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.


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.


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?


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.


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.


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!


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.


"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.


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


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

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

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