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RonK, Seattle

The classic dilema -- is it two L's or two M's?

RonK, Seattle

And a fine post, BTW, invoking the metaphor correctly, and using it to explain clearly why obstruction of justice is a crime.

Matt L


Great job dissecting this case. Judy Miller deserves to be indicted. It is painfully obvious that she is continuing to protect Libby rather than doing what she is supposed to do: exposing lies and reporting the truth. If nothing else, she needs to be fired.


It's not a Prisoner's Dillema, actually. In a prionser's dillema, the best strategy is ALWAYS to defect, no matter what the other layer does.

The game you're thinking of is a 'Stag Hunt'.


You're thinking like a lawyer, not a reporter. She made a promise, and was honor-bound, whether the law backed her or not. Whether Libby was using the promise to commit perjury was irrelevant. Her only question was whether he was voluntarily releasing her. She may have surmised incorrectly at first, but this is all much ado about nothing. She did the right thing, and so did the times.

tom hilliard

John is right, at least about the criterion to be applied to Miller's decision. Matt Cooper did not decide to testify based on Rove's lawyer telling a lie. Rather, Luskin publicly waived Rove's privilege of anonymity. That has no bearing on any question of veracity. Miller, on the other hand, decided that her source was sending her a coded message that he did not want his name revealed. That turned out to be unwise, but it's ethically defensible.

Neil the Ethical Werewolf

As Matt says, this isn't exactly the classic prisoners' dilemma. In that scenario, defecting is always the most self-interestedly rational option. Here's how the incentives are laid out in the classic dilemma. The numbers of years in prison are given purely for pedagogical purposes, not because they have any relation to what's actually going to happen to Judy and Scooter:

Both stay quiet: Both get 1 year in prison for obstructing.
Judy squeals, Scooter stays quiet: Judy freed, Scooter gets 5 years.
Scooter squeals, Judy stays quiet: Scooter freed, Judy gets 5 years.
Both squeal: Both get 2 years in prison.

Suppose you're Judy. If Scooter talks, you're looking at either 2 years (if you talk) or 5 years (if you stay quiet). If Scooter stays quiet, you're looking at either freedom ( if you talk) or 1 year (if you stay quiet). So self-interested rationality suggests that you talk, either way. Of course, if everyone does the self-interestedly rational thing, everyone stays in prison for 2 years, while everyone doing the irrational thing puts them in prison for only 1 year. That's the nifty thing about the prisoners' dilemma -- it shows that a bunch of self-interestedly rational people, even with perfect information, can all get a suboptimal outcome.

Mark's right that there's a coordination problem here, but it's not exactly the prisoners' dilemma.


Can no one at the top of the Times think straight? From the Van Atta et al story
"Mr. Sulzberger said he did not personally write the editorials, but regularly urged Ms. Collins to devote space to them. After Ms. Miller was jailed, an editorial acknowledged that "this is far from an ideal case," before saying, "If Ms. Miller testifies, it may be immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places."
But didn't Judy Miller's refusal to testify actually frighten the next Joseph Wilson from coming forward? Does Scooter Libby fit the bill of a frieghtened government employee" Did the authors of the Times-Comes-Clean story not understand that by backing Judy Miller's refusal to testify, Sulzberger was actively helping the administation to silence its critics?


Re Abrams as her lawyer. Isn't Abrams the Times' lawyer? And on what basis can he also represent her? Surely they have interests that are adverse, one to another.

DR 5-105(a) (of the Lawyer's Model Code of Professional Responsibility) says: “A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing different interests….”

An exception in DR 5-105© says” …a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of h is independent professional judgment on behalf of each.”

Aside from client loyalty rules, there are rules on client confidentiality that probably apply(in Canon 6, and point again to the conclusion that he has no business representing both.


Buce, that it might not have been in Miller's best interest to have been represented by Abrams is one of the more interesting lines in Mark's post.

Abrams, in press interviews about his new book, saw the case as a marginal wedge for 1st Amendment issues; he seemed such an absolutist on press freedom, so total in his focus, that I rather doubt he got anywhere near the full story from Miller.

It's pretty clear that the Times paid Abrams's fees. The Times seems to have taken Miller's word for how things went down--well, some at the Times, at least; that "not the ideal case" language in the NYT editorials might indicate some scuffling behind the scenes.

I rather like Mark's speculation that it might have been a shift in lawyers that changed Miller's strategy. Maybe she was more open with Bennett about her entanglements; maybe he was more savvy about criminal law. Does anyone know who's paying his fees?

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