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Tuesday, October 25, 2005

Oh! So That's Why Judy Went to Jail!

That moment when that piece clicks into place in your brain -- had one of those this morning while unloading my dishwasher. Judy Miller went to jail because Fitz had a hunch -- or some third hand information -- that she knew something that was an interlocking piece to the entire conspiracy puzzle.

And Fitz wasn't going to rest until he got it.

Why bother with Judy if he might have this information about Cheney, Libby, Rove and whomever else was involved in the "plot against Wilson" (Judge Tatel's words, not mine)? Because in a criminal trial, third party testimony is inadmissable. It's considered "hearsay," and can't be used to prove any material fact of a particular charge.

Why bother with Judy, then, since she was a journalist who never wrote an article about the whole Plame/Wilson situation and the WH efforts to discredit Joe Wilson after his NYTimes Op-ed? Because she was leverage.

In a criminal case, especially one where you suspect a criminal conspiracy -- either to do an act that is criminal or to obstruct the investigation after the fact, which is also a criminal act -- a prosecutor or investigator often works the case from the bottom up.

You see this a lot in drug or mafia cases, where you have small fish doing the scut work in the streets, and you move up the food chain from the little fish to the next bigger ones to the sharks at the top, flipping people up the line as you go with the threat of criminal jeopardy hanging over their heads as incentive to work something out with the government.

Why would this apply in this case? Because Judy and Scooter Libby were awfully chummy. The two hour St. Regis breakfast meeting? Not really the usual actions of a reporter and source -- most reporters get a few minutes outside a Starbucks, if not a furtive phone call, as the usual mode of passing information back and forth.

Fitz knew that Judy went to the Executive Office Building on June 23, 2003. He may have known that she met with Libby based on the log entry, but those logs don't always record a name of the person being met -- sometimes only reason for visit (as in "interview with official").

But maybe there was someone else who set up the meeting, or who knew that the meeting was to take place, or was in the meeting for a portion of the time and then left Judy and Scooter alone to talk shop. Wurmser? Hannah? And that person told Fitz that he had heard about the meeting and what may have been said to Judy Miller. And what was likely said to Judy Miller related directly to the crime he was investigating.

Fitz can't use that testimony at trial (he could use it for inference purposes for the grand jury, however, because the rules of evidence are relaxed in that context). But to really get any traction in the case, he would have to have testimony from a principle involved -- you can't just go to trial on a hunch.

And to get that testimony, he needed leverage. He needed Judy Miller -- either through her direct testimony, or something he believed would be contained in her notes. You know, those notes that she's steadfastly refused to show to her colleagues at the NYTimes.

I re-read the Special Counsel's Memorandum in Opposition to Ms. Miller's motions again this morning. In the light of the latest NYTimes revelations last night, it reads as a much more calculated move on Fitz's part. He knew what he thought he would get from Judy Miller.

On page 15 of that memorandum, Fitzgerald labels Judy Miller "an eyewitness." We won't know to what until and if indictments are filed and this informations starts seeping out during trial motions. But if her source was Scooter Libby, and his source was his boss, Dick Cheney, what exactly did Judy Miller know?

Whatever it was, I would bet that it made for some awfully good leverage.

David Shuster reported this morning on MSNBC that Fitz got Libby's notes directly from Libby. All indications are that this was a recent turnover -- perhaps right after Judy testified. Or perhaps, as Wolcott was speculating earlier, Libby realized just how much his loyalty was worth to this crowd -- which was about as much as it would take to save their own hides if they had to cast him aside to do it.

UPDATE: From the comments:

My bit from above: "Fitz knew that Judy went to the Executive Office Building on June 23, 2003. He may have known that she met with Libby based on the log entry, but those logs don't always record a name of the person being met -- sometimes only reason for visit (as in "interview with official")"

Billmon's comment: "This is not true, based on my experience. When a reporter has an appointment with someone in the White House or the OEO, they must wait for someone (usually a secretary or an intern) to come down and escort them to the right office. My best recollection is that the escort would have to sign for the visitor, and while I never actually looked at the log, I'm pretty sure the office, if not the name of the official being visited, is written down there.However, I never had a permanent White House press pass, which I believe Miller did. The procedure may be different for permanent pass holders, but I don't think it is."

My response: "Interesting, Billmon. My experience was going in as an attorney. Guess they have different regs for different types of visitors. Who knew they could be so efficient? ;-) Thanks much for the heads up on that." (And I might add, it wasn't like I was ever going to see the VP or someone who worked for him either. Should have thought about tighter security arrangements. That's what i get for blogging without proper coffee ingestion. But I still say Judy was leverage.)