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Judith Miller: Headed Back to Jail?

Maybe, but it depends on what happens in the intensifying perjury and obstruction of justice case against Scooter Libby this week.
 
 
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Inquiring minds want to know -- and so they should, by the end of this month, as complex pre-trial legal maneuvering in the perjury and obstruction of justice case against former White House official I. Lewis (Scooter) Libby comes to a head.

Miller, the ex-New York Times reporter at the center of the affair who famously spent eighty-five days in the slammer before revealing that Libby was in fact her once-anonymous source, declined to speak on the record about the possibility of further incarceration, saying that to do so would be like "waving a red flag at the judge." Miller's attorneys also declined comment, but lawyers close to the ongoing legal skirmish between Libby and Miller, three other reporters and three major news organizations say the question will be answered later this month, once U.S. District Court Judge Reggie B. Walton finishes sorting out the various motions, filings and arguments now being advanced by all sides in the case.

The latest significant filings came last week. On Friday, Judge Walton refused to give Libby access to a wide range of information from several government agencies, saying he would not allow the trial in the CIA leak case to become a debate over the war in Iraq.

"I don't see how that will help us determine whether Mr. Libby lied when he talked to the FBI and went before the grand jury," the judge told defense lawyers, although he did order Special Counsel Patrick Fitzgerald to turn over evidence -- if he has any -- of when and how President Bush and Vice President Cheney decided to declassify part of a secret government intelligence report on Iraq so Libby could disclose it to Miller in an effort to discredit administration critics in 2003. The judge also appeared disposed to deny a defense request for documents Fitzgerald has related to the activities of White House adviser Karl Rove. Rove remains under investigation, and will be a defense witness if the prosecution doesn't call him to testify - or indict him - first.

Earlier in the week, Libby's lawyers had filed opposition to motions by attorneys representing Miller, the other reporters, and the New York Times, NBC News and Time magazine. Those motions asked the judge to quash subpoenas demanding a wide range of notebooks, records and documents Libby's attorneys say are crucial to his defense.

Libby of course has been charged with lying to investigators as they tried to discover who leaked the identity of CIA operative Valerie Plame after her husband, former ambassador Joseph Wilson, accused the Bush administration of manipulating intelligence to build its case for invading Iraq. Libby's defense team subpoenaed Miller and the other reporters, along their employers, in an effort to show that Plame's identity was widely known before columnist Robert Novak made it public knowledge in July 2003.

Generally, the subpoenas seek all documents prepared or received by any employee of NBC News, The New York Times and Time that refer to Plame and her husband before Novak's column was published. The subpoenas also seek drafts of articles -- even those not published - as well as communications between reporters and editors and e-mail exchanges among reporters about Plame or Wilson. Defense attorneys say the notes may be useful to Libby's case even if they do not mention Plame, arguing that she was "peripheral" to the case and that their client was focused on attacking her husband's charges on the merits, not smearing him. They also want uncensored copies of Miller's notes for use in cross-examination about alleged discrepancies in her public statements and writings about the case.

The media lawyers characterize Libby's subpoenas as a "fishing expedition" and have asked Judge Walton to block them. Attorneys for Miller's former employer, the New York Times, have said the company will provide documents or statements Miller made about her conversations with Libby if she is called as a government witness during the trial, but they have also maintained that material from other employees has no direct bearing on the case and should not be required. Libby's lawyers countered by asking Judge Walton to force the handover of the material they claim their client needs to receive a fair trial, saying the reporters have "no right -- under the Constitution or the common law -- to deprive Mr. Libby of evidence that will help establish his innocence at trial."

Libby's defense essentially centers around the matter of whose memory is correct -- Libby's or that of Miller and other reporters he talked with in June and July 2003. His lawyers say they need the records to use in cross-examining not only the reporters, but also unnamed government officials, who may be "shading" the truth to protect themselves or their bosses.

The matter will come to a head on May 16th, when the concerned parties are to appear for oral argument before Judge Walton. What will happen thereafter is a matter of conjecture, but one lawyer close to the case - who requested anonymity because, like Miller, he didn't want to antagonize Judge Walton by commenting for attribution - explained the context of the complicated legal wrangling: "Libby is entitled to discovery of evidence that is material to the preparation of his defense. The judge must decide whether the material requested under the subpoenas is relevant in that context. Thus far he has resisted attempts by the defense to pry out these sorts of documents. But the final disposition is highly discretionary with the court."

What does that mean, in plain English? "Should the judge rule in favor of Libby and say that these documents must be turned over," the attorney responded, "There will likely be no avenue of appeal."

Before ruling, however, Judge Walton may decide he wants to look at the documents himself, in camera, to determine their relevance. If he then decides that Miller must turn over the material detailed in the subpoena, she will face a decision similar to the one that previously landed her in jail: whether or not to comply with a court order. Should Miller again choose not to, the lawyer conceded, "There is a distinct possibility of her being held in civil contempt, along the same lines as before.

"We're still miles from that scenario," the lawyer cautioned. "First, replies have to be filed to Libby's May 2 opposition to the motions to quash. Then there will be oral arguments on the 16th. Then there's the possibility the judge will choose to review the documents in camera. So everyone is hoping that bridge will not have to be crossed.

"In any event, this will not take long," the attorney opined. "Even if the judge chooses to look at the material, there should be a definitive ruling shortly thereafter - most probably within a week of the oral arguments on the 16th."

The attorney believes the odds are "pretty low" that the judge will rule in Libby's favor, since like many observers, he views the subpoenas as "overly broad" by most legal standards. But there have been enough twists and turns in the affair thus far that he does not rule anything out - including the possibility that Judge Walton will compel Judy Miller to turn over everything the Libby defense team is demanding. Should that happen, Miller will once again have to decide whether to give the judge want he wants, or instead to stand on principle, invoke the First Amendment... and head right back to jail.

In other words, soon - most likely by month's end -- it could be déjà vu, and 'Miller Time,' all over again.

This and other articles by Rory O'Connor are available on his blog.