Fitzgerald's Letter to Scooter Libby's Lawyer

Here's something new: A copy of Special Counsel Patrick Fitzgerald's letter(pdf) to Libby's lawyer Joseph Tate, dated September 12, 2005. [Via How Appealing.] Some points from the letter, old and new:

  • Libby was interviewed in October and November, 2003. He testified twice before the grand jury in 2004.
  • Libby testified about his recollection of conversations with Judith Miller that occurred during their July 8 meeting and their July 12 phone call.
  • Libby was the indiviual specified as "an identified government official" in Miller's subpoena.
  • Fitzgerald assumed Miller remained in jail either in spite of the subpoena or because Libby thought it was not in his best interest to encourage her to testify.
  • As a result of reading recent press articles, he now thinks there might have been a communication between Libby and Miller regarding the waiver.
  • He wants Libby to know that he can reach out to Miller and assure her the waiver is valid and encourage her to testify and it will not be considered obstructive conduct.

  • Libby doesn't have to communicate with her or encourage her to testify, and he is not asking him to do so, he is just saying it's ok.

The New York Sun reports:

in a written reply to Mr. Fitzgerald, Mr. Tate said he was baffled by the prosecutor's missive. "To say I am surprised at its content is an understatement," Mr. Tate wrote in his September 16 letter, made public by the Times last week. He insisted that he unequivocally reaffirmed the waiver to a lawyer for Ms. Miller more than a year earlier. "Neither my client nor I imagined that her decision to go to jail could be affected by anything that we could do," Mr. Tate said.

Miller lawyer Floyd Abrams confirms Libby's reaching out was a factor in Miller's change-of-mind, but also reiterates that a major component of her decision was Fitzgerald's agreement to limit questioning to Libby.

Mr. Abrams said another important factor in Ms. Miller's agreement to testify was Mr. Fitzgerald's willingness to respect the confidentiality of the reporter's other sources. "He agreed to focus his questioning on Libby," Mr. Abrams said. "The real protection we were getting was other sources with whom she spoke at about the same time, though not on this particular matter."

Abrams previously told Adam Liptak of the New York Times,

The second factor in Ms. Miller's decision to go before the grand jury was a change in the position of the special prosecutor, Mr. Fitzgerald, concerning the scope of the questions she would be asked, according to Mr. Abrams. Mr. Fitzgerald only recently agreed to confine his questions to Ms. Miller's conversations with Mr. Libby concerning the identification of Ms. Wilson, Mr. Abrams said.

Abrams also told Liptak that the notes she turned over "were redacted to omit everything but the notes taken concerning discussions with Libby about Plame."

So, is Tate leaking this letter now? I'd say so. He's the only one who would have it. [I checked the fax number on the top and it seems to belong to the Sun reporter.] Is it just that a battle seems to have erupted between him and Abrams over their prior discussions? Or is he courting public opinion for Libby in case of an impending Indictment, and if so, what is he trying to show that is helpful to Libby?

Update: Go read Jane at Firedoglake. She's burning up on this one.

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    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#1)
    by Sailor on Sat Dec 17, 2005 at 01:04:40 PM EST
    Abrams is a defense lawyer fighting for his client. He made those statements to the press, not the court. He can lie with impunity.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#2)
    by jimcee on Sat Dec 17, 2005 at 01:04:40 PM EST
    Angels, meet the head of a pin. Have patience, all will be revealed as soon as Fitzgerald files his indictments. Or not as the case may be and then of course, the trial.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:04:40 PM EST
    There is also the Libby love letter that was posted alongside Jehl's article as a PDF download.
    There are three letters involved: a letter from Scooter Libby to Judith Miller dated September 15, 2005; a letter from Libby's attorney Joseph Tate to Special Counsel Patrick J. Fitzgerald dated September 16, 2005; and a letter from Floyd Abrams, Miller's attorney back to Tate dated September 29, 2005.
    firedoglake goes into some depth asking about these letters here and here. Since the link was not posted when the article first appeared evidenced by Editor & Publisher's point that it was not in the NYT article it must have appeared after they wrote about the letter and now the PDF link is gone again. Seems like there is tug of war going on at the NYT between the staff and some editors, for the PDF comes and goes mysteriously. It is not clear how the PDF got to the Times originally. I resuscitated the link from an earlier comment I made on TL and the link still works PDF link. Jehl's writing has been the most openly honest in its raising questions about Miller's role as warmonger. Johnston/Jehl. Editor and Publisher's William E. Jackson, Jr. has also been on Miller's case and wrote about Jehl's skepticism as to whether or not Miller was ever writing an article at all, throwing her claim to be protecting her source into question as well as the NYT administration' blind devotion to St. Judy. link Also, is Abrams still Miller's lawyer? I thought she switched to Bennett. Perhaps Abrams felt jilted and was involved in the new leaks.

    Floyd Abrams is not a criminal defense attorney. He is one of the country's finest First Amendment lawyer. He still represents Judith Miller. Robert Bennett was brought in after the Appeals court upheld the supboena and jail became a possibility. Not unlike DeGuerin coming in for DeLay when it became clear an Indictment was imminent. Floyd Abrams would not lie for a client. No reputable lawyer would.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#5)
    by squeaky on Sat Dec 17, 2005 at 01:04:40 PM EST
    TL-Thanks for the clarification, and your opinion of Abrams, which counts for a lot to me. Miller, Sulzberger and Keller have seemed less than honest, perhaps blinded by ideology; I am glad that their Attorney is not going to help them to lie.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#6)
    by jimcee on Sat Dec 17, 2005 at 01:04:41 PM EST
    It should make it a fun Autumn, politically speaking, with all the spin and all on both sides. Woo hoo!

    I think it's clear Libby didn't want Miller talking. His lawyer basically said this by acknowledging that any release would be coerced (as per Miller's attorney's account). Now that Libby has been compelled to personally release Miller, for whatever reason, he's battling the public relations problem that he's responsible for her going to jail. I think Miller just got tired of being in jail and needed a way out. Wouldn't any release be coerced, whether personal or not? All Miller's attorney had to do was call Libby's and say, "hey, she's tired of being in jail, she's testifying whether you like it or not, do you give a release?" It's all about saving Miller's face publically. Libby's just trying to save whatever he's got left. I think the best thing about all this is the seemingly unfriendly relations between the Miller and Libby's attorneys. This might mean Miller is tired of Libby and may be truthful about her discussions with Libby.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#8)
    by learned hound on Sat Dec 17, 2005 at 01:04:41 PM EST
    I don't understand this. Maybe somebody can explain it to me. Miller had a waiver from Libby, but according to Fitz's letter, it was she and not Libby who asserted that the waiver was invalid in form or coerced. How does Miller as opposed to Libby have standing to make this assertion? And how does making that assertion, when evidently Fitz knew who the source was, make her a First Amendment Hero? Sorry to be thick, but I just don't get it.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#9)
    by squeaky on Sat Dec 17, 2005 at 01:04:42 PM EST
    LH-you are far from thick. This is fairly impenetrable stuff. Many are covering their a**es and McGuffins romp like antelope on the autumnal plain heading for the deep Aspen woods. My take on the letter from Fitzgerald is either he is being straightforward by giving Libby and Miller the benefit of the doubt by clearing up a misunderstanding by Miller that Libby gave a limited waiver and a misunderstanding by Libby that to contact Miller and personally give her a waiver may be construed by Fitzgerald as obstruction of Justice. The more plausible reason for the letter is that Fitzgerald made it known, prior to writing it, that he was going to extend the investigation past Oct 30 and Miller would be spending another 18 months in jail with possible criminal contempt charges. The letter was a clever way of allowing everyone to save face so that Fitzgerald could wrap things up by Oct 30 and get whatever he needed from Miller. Libby saved face by claiming that Miller was helping him by her testimony and the waiver was all a big misunderstanding perpetuated by Abrams. If there was conspiracy by the neocon pack, Miller included, no one expected Miller would get put away for years, as she was not a gov official she would get off easy claiming she was protecting her source and refuse to testify, thereby thwarting any possible investigation. My bet is that the neocons were not counting on getting caught and their fallback plan did not take into account that a man like Fitzgerald would be the prosecutor. Ashcroft was Attorney general back then and part of the whole scheme to begin with, so why worry. It was Comey who got Fitzgerald on the job after Ashcroft was forced to recuse himself. These guys are in big trouble. Perhaps that is why Meir was nominated to SC. If Fitzgerald indicts Bush and his pals the reason for Meir's nomination will seem obvious. The bickering between Tate and Abrams is a McGuffin.
    Or is he courting public opinion for Libby in case of an impending Indictment, and if so, what is he trying to show that is helpful to Libby?
    He is courting public opinion for Libby so that when Bush pardons him the public will not be so outraged. What he is trying to show that is helpful to Libby is that Libby writes beautiful Hallmark poetry, America has gotta love that. The Aspen quote did seem like metaphoric code as Aspens are all connected underground just like neocon conspirators. Their leaves are all turning in unison (did Fitzgerald get someone to turn); for the neocons (Aspens) impending autumn (fall) is now inevitable. Oddly after Aspens Libby mentioned that all the other reporters had, like the united Aspens, said that he never mentioned Plame by name to them. Of course, that doesn't leave off the possibility that Libby said Wilson's wife was a NOC. Good lawyers like Libby may not lie but they do know to use words to hide the truth while appearing to be utterly truthful.

    Nice take Squeak. Can anyone clear something up for me? What is the big deal about these guys not saying Plame by name. If I say her name is spelled P.L.A.M.E. aren't I still guilty of revealing the name. If these guys knew that Plame was undercover (which I am not sure they did as of now), doesn't the mere peddling of an agent's identity (i.e. "Wilson's wife works with the CIA") knowing full well this info. will be published, enough to be in violation of the spirit of the law? They knew what the result would be, or they wouldn't have called a reporter. Lastly, some of the judges in this case who upheld the jailing of Miller have stated the seriousness of the activity to national security (sorry I don't have the link). Many have spoken of the possibility of perjury or obstruction, but I wonder if the outing of the agent still is a real issue here, especially if they knew she was covert.

    Just a clarification. E&P is wrong when it says the letters didn't appear at first. The letters were posted from a direct link from the front page of nytimes.com before 4:30 in the morning Saturday--I saw them there myself. I assume they were posted after their normal 10 pm upload of articles from the next day's edition (otherwise everyone would have known about them sooner), but before regular office hours the next day. Which I think supports the claim that someone at NYT snuck them onto the website in the middle of the night, bypassing normal editing channels.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#12)
    by Swopa on Sat Dec 17, 2005 at 01:04:43 PM EST
    FWIW, I downloaded them on Friday night. The time stamp on the file is 7:47 PM, which I believe is the time that I saved the file.

    Re: Fitzgerald's Letter to Scooter Libby's Lawyer (none / 0) (#13)
    by Swopa on Sat Dec 17, 2005 at 01:04:43 PM EST
    Oh, and that's Pacific time.

    Maybe the man just likes to write poetry. It's been a long time since our cointry embraced the idea of the "political-intellectual", maybe this is a signal from the White House of a culture change.After all, Stalin and Mao were both poets. Neocon Poetry