Ah, Judy. Queen of the NY Social Scene. Martyr of journalistic integrity and principle. Writer of truths and well-researched factual tomes. Cough. WMDs. Cough. Curveball. Cough. Well, and except for that pesky notebook found in the Washington bureau of the NY Times full of notes or something indicating that she was meeting with Scooter Libby well before his testimony had said (and possibly her testimony). Ooops!
We've all been batting alternate history theories around of what really happened with Judy's testimony and notes. (For a fantastic thread on this, take a peek at Mark Kleiman's series of theories and counter-theories.) No one on the outside can really know, obviously, since all we have to work with are the crumbs tossed to us by spinning defense lawyers and over-eager FBI agents and White House minions trying not to shit their pants that Karl might get sent to the slammer. What I wouldn't give for five minutes alone with those 8 redacted pages, but I'm afraid that I will just have to wait along with everyone else.
Through all the speculation, though, there has run a thread of discussion on the legal implications and potential scenarios that could have led to Judy's discovery of her notes -- the Indiana Jones of Dust Bunnies, as Jane so accurately (and pithily) described her. (Although I still have difficulty imagining Judy with anything approaching a cleaning rag and some pledge...she might smudge her manicure, after all. Perhaps her minions helped...ahem...or her "tribe." Oh, they helped, all right.)
There had been a few questions below in the comments regarding the prosecutorial end of things with the notes and how Judy came to be looking for them (or how the NYTimes might have been looking for them, depending on to which scenario you subscribe). I had posted a response to a question in one of the threads below, but theories and counter-theories have been flying fast and furious over the weekend, and it has gotten lost in the dusty, moldering long-forgotten comments area.
Upon further reflection on what I had written there (Okay, while I was in the shower this morning, I had an epiphany -- and why that always happens when you are naked, wet and soapy and can't get near your computer, I have no idea, but I digress...), and I decided that it needed fleshing out a bit more and posted where it could draw some more comments from like-minded Sherlocks of legal obscurities. And so, here is my expanded working theory on all of this mess (which is subject to change pending more leaks, mind you). In my mind, a portion of the testimony went something like this:
"And did you have any other conversations with Mr. Libby regarding Mr. Wilson?" "No."
"How about his wife, Valerie Plame Wilson?" "No."
"Did you have any other conversations with Mr. Libby at any time regarding the need to discredit Mr. Wilson's claims that the Niger documents were false and that the administration knew that at the time of the State of the Union?" "No, not that I recall." (Okay, probably not that specifically, but I would like to know the answer to that one.)
"Did you have any other conversations with Mr. Libby regarding the article written by Mr. Kristoff and appearing in the NY Times on May 6, of 2003?" "No."
"Did you have any conversations with Mr. Libby after that article appeared?" "No."
And so on.
That is not prosecutorial misconduct, nor is it even close. If Judy were given an opportunity to answer questions fully and honestly under oath, and did not take that opportunity, then the responsibility would fall on her head. Whether or not Fitz knew ahead of time what the answer would be, or he had a hunch based on other information that they had and was trying to confirm it -- or was fishing and got some after-discovered tip from a cooperating witness who may have reviewed parts of Judy's testimony, we just can't know from the outside.
Enter my epiphany in the shower: If Fitz had solid information regarding Judy having coversations with Libby prior to the July ones referenced in the subpoena, he would have asked her straight out about them. No perjury trap. Just a plain old:
"Did you have a conversation with Mr. Libby in June of 2003?" "Yes or no." (No idea whether Judy would have tried being coy or would have answered straight out here.)
If no, then "Your testimony is that you did not have a conversation with Mr. Libby at the St. Regis hotel on June 25th of 2003? Would you like time to think about that answer before you respond again, Ms. Miller?"
"What was the substance of that conversation?" (And so on following up and prompting from there to elicit the relevant information.)
Prosecutors are no more comfortable with setting a "perjury trap" than defense counsel are. They are much more likely to confront a witness directly that they are lying and then see how things go from there. Fitz doesn't seem the sort of fellow who let's things drag out for his own intellectual amusement -- it's a waste of his time and the jury's to do so. So I think it more likely (after my shower this morning, anyway) that Fitz would have asked her straight out about the conversation.
Or he found out afterward from a cooperating witness that there were other, earlier conversations and then he went back to Bennett or Abrams (whichever one is representing her at this point) and raised the question of whether Judy was being fully cooperative. But I would still bet money that he left an open-ended question or two on the table as I described earlier because you never want to close out the loops in an investigation until you absolutely know that they need to be closed. Frankly, you never feel like you have ever answered every single question, you just have to reach a point where you feel like you have answered enough of them and that you are comfortable and confident with where you are to proceed on indictments or otherwise.
Or, another equally likely scenario is that the NYTimes and their counsel, knowing the question was asked of Judy regarding potential earlier conversations from their debriefing after her testimony, and went on a hunting expedition of their own in all the offices Judy frequented and found and turned over the notes on their own -- to protect their hide, since Judy may have testified falsely or had a lapse of memory on the issue. This might be especially true if the bloom is coming off the Judy rose for Pinch, who sees that his beloved newspaper is becoming less and less respected due to its lack of reporting on this very issue, and that he and Bill Keller are being portrayed as cuckholded men to Judy's journalistic diva requirements for her personal legal defense. The "paper of record" is, well, not so much these days. How sad.
Again, we just can't know from the outside. But I can tell you that, as a prosecutor, if I asked questions and got back an answer that sounded like a hedge, I certainly followed up with a reminder about perjury and obstruction and strongly recommended that a witness think very clearly about what they had said and that they come back to me with any changes. I would bet that Fitz has done the same with Judy AND the Times. And that sort of stern reminder on providing accurate and complete testimony often shook the tree enough that some additional information would come to my attention fairly soon thereafter. It certainly is a possibility here.
Whatever the catalyst, those notes and any resulting testimony and potential parade of witnesses through the grand jury this week (if any at all) should be interesting from the cheap seats, if nothing else. Guess all we can do until something definitive happens is stock up on some more popcorn and hope that it has been a productive weekend of deal-making. Defense counsel and clients don't like uncertainty any more than we spectators do -- and it is just this sort of fevered, speculative environment which leads to some good deals for a prosecutor, or to everyone digging in their heels and hoping to ride things out. It's going to be an awfully long wait until October 28th.
(photo courtesy David Patrick Columbia's New York Social Diary)