1. Anonymous says:

    Somtimes I hate being brought back to reality. I liked the idea being floated around that Judy’s real problem is that she’s a secret agent working for Rumsfeld’s intel team.

  2. Anonymous says:

    Emptywheel – I’m very pleased to see that you’re back on the Judy trail. Your previous posts have been hugely interesting to those of us who are consumed with this tantalizing and promising mystery.

    We’d be very interested in your speculations as to how things will play out in the final 7 weeks of the Grand Jury Term (it expires Oct. 28). Just for starters, here are some questions on the Judy angle that I have been able to find answers for:

    1) If the Grand Jury makes at least one indictment, do the current members of the GJ stay on or must a new group be chosen and brought up to speed?

    2) If the GJ makes at least one indictment, does Miller stay in jail on civil contempt or must she then be charged with criminal contempt?

    3) If she’s charged with criminal contempt, she has to have a full trial, right? How long would that take? Would she remain incarcerated or could she then get out on bail? How far could she appeal?

    4) Miller’s civil contempt incarceration is explained in the infamous â€8 redacted†pagesâ€. If she were tried for criminal contempt, when would the information on those pages have to be made public? (And mightn’t that disclosure be sufficient to wreak political havoc on the Bush Administration, the NYT, and any hope of a future career for Miller?)

    5) What is the range of sentences for criminal contempt?

    6) What is your current best theory as to what it is about Judith Miller’s testimony that Fitzgerald needs or badly wants?

    7) Do you think that Fitzgerald already knows what Miller knows and just needs her testimony? What if she lies? Do you think he has testimony from another source that would allow him to charge Miller with perjury?

    8 ) Is Fitzgerald on the offensive or the defensive? Is he delaying as a tactic to put pressure on the lower level players or simply because he has no case without Miller’s cooperation?

    9) What do you think the chances are that Miller is indictable for a crime other than criminal contempt?

  3. Anonymous says:

    I’d like to know the answers to those questions, too. I’m also wondering (excuse the ignorant question) whether the VP or even the president can be indicted for criminal offenses while in office. I seem to remember that the president can’t be taken to court for civil cases.

    I have this fantasy of waking up one morning and reading that Bush,
    Cheney, and many others in the administration have been indicted under the 1917 Espionage Act.

  4. Anonymous says:

    I’m almost certain that neither the President nor the VP can be indicted while in office. They would have to be impeached by Congress. However, I’ve seen the term â€unindicted co-conspirator†used in connection with this case.

    There’s a retired prosecutor named â€Reddhedd†who has contributed a lot of really interested posts to various plameblogs. Maybe she’ll turn up here and answer our other questions.

  5. Anonymous says:

    Sorry for posting a thread and abandoning it–I was in the air.

    I think Redhedd is more qualified than I to address the legal issues. But I think Fitz thinks in terms of campaigns rather than battles. And therefore it’s not so much whether he’s on offense or defense, and it’s not so much that it all comes down to Judy. It’s that he’s meticulously advancing his case inch after inch, on multiple fronts. I suspect he can get to conspiracy or perjury charges without Judy. But that he can’t roll up the whole smear job.

  6. Anonymous says:

    I’ve been reviewing the timeline at:

    http://www.dkosopedia.com/inde…..ation_2004

    The Grand Jury began hearing testimony in Jan. 2004, but it looks like the attempt to secure the testimony of Miller & Cooper didn’t begin until Feb. 2005. It then took four and a half months before the Supreme Court refused to hear the case, clearing the way for the surge of activity this summer.

    My concerns are that a criminal contempt trial of Miller could take much longer than 4 months; that the composition of the SCOTUS will have changed, in Bush’s favor, by then; and that once out on bail, Miller will be able to much more comfortably maintain her silence.

    As an aside, I’m still puzzled that Chalabi, after admitting that he deliberately misled the US, is still an active power-broker in Iraq. What’s up with that??

  7. Anonymous says:

    Promised I would drop by and take a whack at the legal questions here. Let me start with the standard legal disclaimer — the information contained herein should not be relied upon as legal advice should you be pursued by Patrick Fitzgerald or any other legal shark for being a traitor or aiding and abetting one or otherwise just jerking around the American public. The opinions contained herein are my own and are not meant, in any way, to be individualized legal advice — for that, and for specific facts and circumstances, you need to hire your own attorney for your own, individual conversation. That said, here are the questions and my answers, as much as I can fill in some blanks or speculate, and I apologize in advance for the length, as some of these required a little more detail than others:

    1) If the Grand Jury makes at least one indictment, do the current members of the GJ stay on or must a new group be chosen and brought up to speed?

    Generally, the Grand Jury (and specifically in this matter a Special Grand Jury which is a distinct investigative entity completely different from a regular grand jury; see e.g. http://www4.law.cornell.edu/us…..-000-.html for more information on specifics on the special grand jury) continue to issue the full complement of indictments throughout its term. In the case of a Special Grand Jury (SGJ), that can be up to a total of 36 months. They are initially empanelled for 18 months, but may continue to request extensions of 6 months each until the total of 36 is reached. A single indictment should not end their tenure and, in fact, indictments may already have been handed down by the SGJ and sealed (held in secrecy by the SGJ) until the entire web of criminal conduct has been ascertained and indicted. FWIW, this happens frequently in drug cases and mob cases, where you use a pyramid strategy, flipping the people at the bottom to move upward on the power levels for prosecution.

    2) If the GJ makes at least one indictment, does Miller stay in jail on civil contempt or must she then be charged with criminal contempt?

    So long as the SGJ is seated, Miller may remain in jail on civil contempt for a total of 18 months of incarceration or other punishment. This incarceration is at the continued discretion of the supervising judge.

    3) If she’s charged with criminal contempt, she has to have a full trial, right? How long would that take? Would she remain incarcerated or could she then get out on bail? How far could she appeal?

    If Judy Miller is charged with criminal contempt, she will be afforded all the legal niceties that a defendant is given in our judicial system — fingerprinting, mug shot arraignment, bail hearing, full trial, etc. Let me say from my perspective that a defendant who has defied a judge and refused to obey a court order and has been held incarcerated for civil contempt might also be a defendant facing a pissed off court who decides that she is not worthy of bail pending trial — most judges do not take too kindly to people who flout their authority. She could again appeal up to the SCOTUS, but in all likelihood her chances of that sort of appeal being heard on criminal contempt issues are much slimmer, since it would not be a case of first impression or even of particular import, since the Federal Courts deal with criminal contempt issues frequently and that law is fairly settled in how the cases are to be managed.

    4) Miller’s civil contempt incarceration is explained in the infamous â€8 redacted†pagesâ€. If she were tried for criminal contempt, when would the information on those pages have to be made public? (And mightn’t that disclosure be sufficient to wreak political havoc on the Bush Administration, the NYT, and any hope of a future career for Miller?)

    The information would potentially become public record at the trial. However, assuming that this is a matter of national security which has not been fully aired and thus would need to be kept somewhat under wraps for security’s sake, there might be some negotiation on keeping some of the matters for the court’s discretion to not be publicly revealed or have the hearing closed to the public and the jurors sworn to secrecy or any number of other creative options that might be used. Or have the trial be a closed door bench trial without a jury. (Sort of along the model of the hearings for Guantanimo or for enemy combatants held here in the US.) Really any number of things could be done where that material might not become fully public, due to security considerations. From my personal perspective, I would LOVE to know what is in those 8 pages.

    5) What is the range of sentences for criminal contempt?

    The Sentencing Guidelines do not contain a specific guideline for criminal contempt. However, U.S.S.G. S 2J1.1 says to apply U.S.S.G. S 2X5.1 — this directs the court to look at sentencing guidelines which are closest to the conduct for which sentencing is sought. For Judy, one could argue that the closest thing might be obstruction of justice, which carries a penalty at a base level of 12 in the sentencing guidelines. Assuming she accepted responsibility for her actions, she could theoretcially get a reduction of 2 points from the sentencing guidelines, which would leave her at base 10. This would give her a sentence range of 6 to 12 months, and is the most conservative of the estimates on this — depending on the conduct alleged, she could be looking at another more serious charge as analogous, including Patriot Act violations if the rules are read broadly. The judge would have the discretion of incarceration or supervised release or an ankle bracelet or some combination of these, and would presumably count her civil contempt time as separate and distinct. My personal belief is that Judy would not receive the reduction for acceptance of responsibility in this instance, since it is completely at the discretion of the court, because should she be charged with criminal contempt it will be because she refused to comply with the court’s orders over a prolonged period.

    6) What is your current best theory as to what it is about Judith Miller’s testimony that Fitzgerald needs or badly wants?

    Several of the espionage issues statutorily may require more than one witness to the conduct in question. Others can be fairly difficult to prosecute when you add a requirement of proving that someone did something â€knowingly†— if you have a second source on the conduct, it becomes a much, much easier row to hoe to prove that the defendant in question knew exactly what s/he was doing. My guess is that Fitz is after someone big and wants to hit them with the heaviest charge he can because he finds this treasonous behavior disgusting as a form of political payback, and wants to use this case as a substantial deterrent for future political hacks who might think that outing a covert agent and his/her entire covert network is now fair game. Whoever opened their yap first and let this information out is about to be slapped down as an example for everyone else, and he wants to lock that charge in with a second source of testimony.

    7) Do you think that Fitzgerald already knows what Miller knows and just needs her testimony? What if she lies? Do you think he has testimony from another source that would allow him to charge Miller with perjury?

    Yes to all three. If Fitz didn’t have enough to put Miller on the hot seat, he wouldn’t have bothered and the judge would not have allowed a jailing of her for contempt. They don’t just do this sort of thing without substantial justification. And I think that Judy knew that going into this and that the NYTimes has been made aware of that (if they didn’t know already) and is now beginning to press for a resolution at least partially due to a lack of pulic sympathy for their postion, especially if Fitz has now started his squeeze on the corporate types at the Times about fiduciary obligation questions and other issues that might be raised to put their freedom in jeopardy along with Ms. Judy’s.

    8 ) Is Fitzgerald on the offensive or the defensive? Is he delaying as a tactic to put pressure on the lower level players or simply because he has no case without Miller’s cooperation?

    I would say all of the above. I think Fitz has enough to make a case on some level on perjury/obstruction/conspiracy to commit obstruction, but he wants to charge at a higher level if he can to send a message. I think he’d like to have Judy Miller’s testimony to do that. I also think that he may be putting the squeeze on other, weaker witnesses and, if he gets their cooperation, Judy Miller’s testimony will not be as useful — and any deal she might try to cut after that would not be as sweet (if any deal would even be forthcoming at that point). So if I were betting, I’d say Fitz is playing a game of getting his rabbits to race for the carrot he’s dangled out over the last month. Only when we see indictments or a report with no indictments will we know how successful he’s been at this. I must say, though, I wouldn’t want to play poker with this guy — he’s really good.

    9) What do you think the chances are that Miller is indictable for a crime other than criminal contempt?

    I think that could be part of her silence. It would certainly explain a LOT if that were the case, especially if she hadn’t divulged that bit of her conduct to the NYTimes until recently.

    I apologize again for the length, but I hope it was useful nonetheless.

  8. Anonymous says:

    Thank you, thank you, thank you, Reddhedd. Did you have anyone specific in mind when you said, â€My guess is that Fitz is after someone big…â€?

    Months ago I started dreaming of President Pelosi, 2007. This, of course, would require a Democratic majority in the House after the 2006 elections, and impeachment and removal from office of both Bush and Cheney. The whole scenario is looking much more likely now, and after the events of the last two weeks, much more desperately needed.

    We cannot afford 3.5 more years.

  9. Anonymous says:

    Thank you Reddhedd! With the media having contracted total amnesia on this issue, and Rove’s confidently applied, business as usual tactics on Katrina, I was starting to wonder if this whole thing was just a pipe dream. Your post, and a review of the Daily Kos timeline, have again given me reason to live.

    MORE QUESTIONS:

    1) So, if you’re Fitzgerald, does October 28, the â€expiration of the Special Grand Jury termâ€, have any tactical significance at all? Are your strategies hinging on that date or are you just sweating out Judy and the others with no particular time frame considerations? As Plame addicts, we’re hanging on the next major development. Are we waiting for 10/28 or are we just waiting for the Judificent one’s cravings for a decent meal and a glass of wine to get the better of her?

    2) Fitzgerald is obviously very busy in Chicago. Do you think he’s just put this on the back burner or is he currently operating behind the scenes?

    3) What do you make of Arianna Huffington’s â€between the lines†analysis of the Reuters report about the investigation being about to come to a head?

    4) Having asked you to put yourself in Fitzgerald’s place, what if you were Judy Miller’s (but not the NYT’s) lawyer? What’s the smartest move from her personal point of view? And how smart have her actions to this point been in your opinion?

    5) What about the potential conflict of interest raised by the fact that Floyd Abrams represents Judy and also the NYT?

    6) What do you think the chances are that the Times itself could face serious repercussions, legal or otherwise, over this?

    ***

    Wandering off on the tangent of â€President Pelosi†I have to say that after hearing her performance with that CNN talking head and her â€in denial and dangerous†speech, I was mightily impressed. She’s now my second choice — after my favorite candidate, â€Anyone but Bushâ€.

  10. Anonymous says:

    Oh – Now I see what you mean about Pres. Pelosi. She could become Speaker of the House and 3rd in the line of succession if the Democrats got control of Congress in 2006. Hmmmm…maybe it’s just as well that Fitzgerald is taking his time.

  11. Anonymous says:

    Pelosi in 2007 is our only opportunity to get a good person into the White House before 2009. I’m not pushing her for president otherwise; my first choices would be Dean or Gore, neither of whom are running.

    But a lot of damage can be done in 1.5 years. I’m wondering whether â€Anyone But Bushâ€, which I would modify to â€Anyone But Bush or Cheneyâ€, includes Hastert. I don’t know all that much about him; my impression is that he is a scumbag but a human being. My minimum criterion for president may have been reduced to â€finds the thought of dehydrated babies intolerable.â€

  12. Anonymous says:

    Probability of Possible Outcomes of the Fitzgerald Investigation:

    1) nobody indicted
    2) non-administration or lower-level administration figure(s) indicted
    3) Rove and/or Libby indicted
    4) damning new evidence and ensuing Katrina-like political uproar force Cheney to resign or be impeached
    5) damning new evidence and ensuing Katrina-like political uproar force Bush to resign or be impeached

    What is the probability of each outcome? (and are there any other likely outcomes?)

    my guesses:
    1) very unlikely that no one will be indicted because Fitzgerald is so good and because of the â€redacted pages†and serious tone of the judges’ ruling on Miller’s civil contempt jailing
    2) ? – could the NYT and Miller be the big losers? Could the Administration hang it on a â€Brownieâ€-like scapegoat?
    3) It certainly seems like Rove & Libby have had their testimony contradicted by Cooper & Russert, so how could they weasel out of at least a perjury charge? What keeps eating away at me is that if Rove were indictable, he would KNOW – and he would have known for at least several months. What would Rove do if he knew he was going to get indicted? Can we observe any Rove behavior that indicates that an indictment is in the works? Is he just sticking around while it plays out, with a plan in place to resign and be pardoned? I mean — we know Rove is obscenely powerful and ruthless and extremely intelligent. I can’t reconcile Rove’s behavior since July with the apparently slam-dunk case that he at least perjured himself.

    QUESTIONS FOR REDDHEDD:

    – In light of what we know about Cooper’s testimony, how could Rove avoid a perjury charge?

    – In light of what we know about Russert’s testimony, how could Libby avoid a perjury charge?

    4) Cheney seems much more vulnerable than Bush, since it’s almost impossible to imagine that Libby would do anything Cheney didn’t know about and easy to imagine Bush being oblivious to … well, to almost anything. So were the MSM given enough evidence to crucify Cheney, Katrina-style, it’s imaginable that he would resign, allowing Bush to appoint someone else, which would open up all sorts of strategies to the Administration.
    5) The only way I can imagine Bush leaving office before his time would be if the invesigation somehow managed to expand its focus beyond the outing of Valerie Plame and find some way to apply legal scrutiny to the Administration’s overall game plan for controlling pre- and post-war public opinion.

    ORDER OF PROBABILITY: From my clueless perspective, I would have to guess: 3,2,4,5,1. In light of that 83 page Miller ruling, I just can’t see how no one could be indicted.

  13. Anonymous says:

    In regard to the matter of indictment or civil litigation against a sitting President, the Constitution FAQ (see Q88 and 89), most constitutional scholars would agree that the President cannot be prosecuted while in office (except in an impeachment trial), but it’s an open question whether he can be indicted.

    It used to be assumed that any civil litigation could be deferred until he left office, until the appalling Supreme Court decision to let the Paula Jones case against Bill Clinton go forward because it concerned events before he was in office. However, it’s still pretty solid that civil litigation concerning actions while in office could be deferred, presumably because there’s a mechanism for dealing with such actions — impeachment.

  14. Anonymous says:

    I’m looking forward to reading the VV piece tonight.

    Obsessed, I agree with your ranking of the probabilities. I wouldn’t be at all surprised if Rove and Libby were indicted, and immediately pardoned. Rove may already have this assurance, explaining his apparent lack of concern. I guess another possibility is that Rove has implicated someone higher-up (Cheney?) in exchange for immunity, therefore the constant assertions that he is not a target of the investigation. I agree that there will have to be indictments; I was also impressed by the comments of the judges who jailed Miller.

    Last week I wondered what the members of the grand jury were thinking as they watched the hurricane/flood coverage. I’ve read that most of them are middle-aged, well-educated, African-American women. Of course they must decide about indictments based on Fitzgerald’s evidence, but I wonder whether any who were wavering about indicting higher-ups were influenced by the callousness on display.

  15. Anonymous says:

    I’m looking forward to reading the VV piece tonight.

    Obsessed, I agree with your ranking of the probabilities. I wouldn’t be at all surprised if Rove and Libby were indicted, and immediately pardoned. Rove may already have this assurance, explaining his apparent lack of concern. I guess another possibility is that Rove has implicated someone higher-up (Cheney?) in exchange for immunity, therefore the constant assertions that he is not a target of the investigation. I agree that there will have to be indictments; I was also impressed by the comments of the judges who jailed Miller.

    Last week I wondered what the members of the grand jury were thinking as they watched the hurricane/flood coverage. I’ve read that most of them are middle-aged, well-educated, African-American women. Of course they must decide about indictments based on Fitzgerald’s evidence, but I wonder whether any who were wavering about indicting higher-ups were influenced by the callousness on display.

  16. Anonymous says:

    (Related to the idea that Katrina rage might affect the SGJ). My Judith Miller Google News link turned up a site which had what it claimed to be a message she had sent to the NYT, giving them glowing praise for their Katrina coverage — which, unlike their Plame coverage, has been decidedly anti-Administration. Perhaps the Katrina debacle will make the Judificent one less devoted to the idea of protecting these guys, and less confident that they have the competence to protect her and her career. After all, if they hadn’t screwed up in Iraq in very similar ways to the way they screwed up in New Orleans, the articles she wrote publicizing all the bogus WMD leads wouldn’t have become such an albatross around her neck.

    Emptywheel – after researching your epic six-part Judy saga, you probably know Judith Miller better than Jason Epstein does. If you put yourself in her place, how do you think her motivations and mindset have evolved from the run-up to the war to the present? What makes Judy Miller tick?

  17. Anonymous says:

    INDICTED BUT NOT PROSECUTED?

    hmmmm … so if Congress didn’t choose to impeach them, they’d finish out their terms and then by tried in 2009?

    By the way, what’s the definition and application of â€unindicted co-conspiratorâ€?

  18. Anonymous says:

    Egads! Not better than Jason Epstein!?!?! Do I at least get a cruise out of it?

    Honestly, I have mixed notions of what Judy is thinking. There is a part of me who believes she has drunk the Kool-Aid and will do what her neocon masters tell her to do–basically to take the fall and help them avoid jail time.

    But a very big part of me doubts that. Recall that Judy made a comment about people being â€too powerful†just before she went to jail. I’ve always thought of that in connection with what David Kelly said to Judy in one of his last emails, in which he talked about a bunch of dark actors.

    When I think of these two bits, Judy almost strikes me more as an addict who got burned bad by her dealer. By that I mean, she got the thirst for the adulation and fame that came with having inside sources. She staked her entire career on those sources. And she was willing to do whatever they said–including make herself look like an increasing ass with her Iraq reporting–in order to keep the leaks coming. And like an addict, she’d like an easy out, but she owes her dealer so much and has committed so many â€crimes†along the way, that she doesn’t see that coming clean is her only out.

    Like I said, I have mixed feelings about which of these is correct. But I increasingly lean toward the pathetic Judy, as opposed to the willful one.

  19. Anonymous says:

    Emptywheel –

    1) If you were Judy #2 (â€the pathetic Judyâ€), now lucid and alert after kicking your Chalabi habit during 10 weeks of forced detox, and having spent as much time and thought evaluating your options as we all have, what would YOU do?

    2) As for â€the willful Judyâ€, after my many re-readings of your sextilogy, the Metro piece, and everything else that I could google, â€willful†certainly does appear to be one of her defining character traits, but it’s hard to imagine it leading to her spending years in prison to keep the rest of the neocons out. But of course, I don’t know what they put in that Kool Aid!

    3) A huge piece of information that we don’t have is what options Fitzgerald is offering her. I’ve assumed all along that he would give her blanket immunity if she were willing to play John Dean in this remake of the 1973 classic. But does she have enough to offer? Just how tight was she with Bolton, Cheney, Rumsfeld, Perle & Co.? And might Fitzgerald consider her too high-value a target to let off the hook? (Or be too furious at her, given that The Fitz & Judy Show apparently had some nasty episodes when Valerie Plame was but a twinkle in Daddy Karl’s eye).

    4) Another huge question is what the likelihood is that Judith Miller has committed a crime at all. Maybe she doesn’t need immunity.

    5) I hope this doesn’t end up like that O’Reilly scandal where some agreement precludes us from ever getting the full story. If Oct. 28 comes and goes with no major news breakthroughs, I fear for my sanity!

  20. Anonymous says:

    Here’s the quote you referenced:

    [CBS News Correspondent Jim Stewart reports Miller said: â€I won’t testify. The risks are too great. The government is too powerful.â€]

    This can be read in (at least) two ways:

    1) the excessive power of the government makes the personal danger to Judy too great for her to risk testifying

    2) the risk of the courts BECOMING too powerful is too great if Judy sets the precedent of testifying in this type of situation

    Literally, the first interpretation makes more sense because she SAYS â€isâ€, not â€becomingâ€, and â€governmentâ€, not â€courtsâ€, but since this quote came in early July, the second interpretation is more consistent with her official high and mighty martyr stance, which she then hoped would pan out much better than it has, and which was restated, without rebuttal, for the SIXTH time just yesterday by the pathetic and grotesquely irresponsible New York Times Editorial Department.

    But is CBS Correspondent Jim Stewart reporting an on-the-record quote or something he overheard? I can’t find any clarification anywhere, just links to people assuming that the first interpretation above was what Lady J meant to say. We need to know if she meant for that statement to be made public.

    As a tangent, I think the most reprehensible villains in this piece are the NYT and Time Magazine, either of whom could have broken this story wide open BEFORE the election instead of factually reporting quotes from Scott McCllelan which they knew at the time to be false. If the Plame/Rove media blitz of July 2005 had occurred in October 2004, and had questions about it been included in the debates (including the VP debate) those future Hackett voters in Ohio might have seen the light before they did their damage.

  21. Anonymous says:

    ScientistMom in NY — I was thinking specifically about Rove/Libby/Bolton as potential defendants, given the number of witnesses that have been called in their nexus of operation within the White House. Especially given the recent testimony of two of Rove’s personal aides, I think Fitz is taking a long, hard look at the planning that went on to smear Wilson and to fire a shot across the bow of anyone who would further question the Administration in any public way by outing Wilson’s wife. That said, I personally have trouble believing that Scooter Libby would take any step of this magnitude without at least discussing some of the ramifications with Dick Cheney since he is, after all, Cheney’s right hand man. Should the VP be implicated, that would be an entirely new can of worms – and would not be beyond imagination, considering the VP’s long-standing interest in all things CIA and intelligence after 9/11.

  22. Anonymous says:

    1) So, if you’re Fitzgerald, does October 28, the â€expiration of the Special Grand Jury termâ€, have any tactical significance at all? Are your strategies hinging on that date or are you just sweating out Judy and the others with no particular time frame considerations? As Plame addicts, we’re hanging on the next major development. Are we waiting for 10/28 or are we just waiting for the Judificent one’s cravings for a decent meal and a glass of wine to get the better of her?

    I think the strategy has to hinge in some respects on the October 28th deadline — at least publicly, anyway. But really it’s anyone’s guess as to whether or not its a firm deadline, since Fitz isn’t talking and theoretically has several extensions of time remaining if he needs them. In order for pressure tactics to work, however, a deadline has to feel like a deadline, so this is really a lot of headgame strategy among the lawyers, and a lot of nailbiting among the potential defendants as we move toward the â€wire†— the fun for the prosecutor in this is how nervous potential new jail residents get, and how they become more willing to jump at offers as the pressure mounts. Especially given how good Fitz’s poker face has remained up to now. But Fitz is a sharp cookie and I doubt if he is just hanging out waiting only on Judith Miller, I’d say her wrods are merely icing for some higher indictment charges. Truly, he’s probably working several witnesses/defendants at one time to see who will bite on the bait.

    2) Fitzgerald is obviously very busy in Chicago. Do you think he’s just put this on the back burner or is he currently operating behind the scenes?

    From what I have read about Fitz, nothing goes on the backburner. The man apparently functions on very little sleep and he has no life outside of his work. Plus, you may see him in several places throughout a given week, but he has a large staff of extremely competent attorneys at his beck and call in both locations who are generally equally disgusted by duplicity, treasonous conduct and criminal conduct of all sorts. Trust me when I say that none of these people are going to drop the ball if they can help it.

    3) What do you make of Arianna Huffington’s â€between the lines†analysis of the Reuters report about the investigation being about to come to a head?

    I’m never quite sure what to make of Arianna’s sources on these sorts of things, only because they always seem so conveniently well-placed (e.g. Bolton visiting Judy in prison — how the hell did she get that one?!?), and yet they are tough to confirm unless you either know the particular source or sleep with him/her or something. That said, it wouldn’t surprise me that time in a Federal prison isn’t sitting well with Ms. Miller, given the fact that her husband got to go on a lovely European cruise, eating fine haute cuisine, drinking fabulous wines and martinis, all the while poor Judy was dining on creamed chip beef on toast and drinking the kool-aid of the day and rooming with some fine ladies who think that the National Enquirer is some really great journalism. I bet she’d kill for a good glass of pinot grigio and a buddy who knew the meaning of stare decisis right about now.

    4) Having asked you to put yourself in Fitzgerald’s place, what if you were Judy Miller’s (but not the NYT’s) lawyer? What’s the smartest move from her personal point of view? And how smart have her actions to this point been in your opinion?

    That’s a truly tough question to answer because I don’t know the reason that she is really keeping quiet. Is it some misguided sense of Frist Amendment obligation (in which case, as her attorney, we’d be having a talk — protecting a source who was using you to plant an illegal story is wrong, just plain wrong)? Is it to protect her own butt — in which case, I’d really have to know the conduct in question, because that could make a big difference in terms of any negotiations with the Special Prosecutor. As in any case, the facts truly are key, and I mean ALL the facts, not just the whitewashed first or second version that I used to get from my criminal clients, but the dirty hands, nitty gritty, honest version of events. I’m wondering if the whole negotiations issue is arising now (a la Arianna’s recent post) because the true version is just now seeing the light of day with the attorneys and the NYTimes management types, and if that is what is making the difference in terms of stance on negotiating.

    5) What about the potential conflict of interest raised by the fact that Floyd Abrams represents Judy and also the NYT?

    That’s certainly an issue. If, however, both parties were apprised of the conflict and waived said conflict in writing after being fully briefed on potential problems, then there isn’t a legal problem. That said, I never put myself in that situation as an attorney when I could ever help it because it makes it difficult to be completely candid at times when you are balancing the interests and the advice of one client against the other. And especially when you have one client that is resumably footing the massive legal bill.

    6) What do you think the chances are that the Times itself could face serious repercussions, legal or otherwise, over this?

    Well, I think there are certainly image issues that the Times will be facing for quite some time, not only with the general public, but also with its own reporters — I’ve read a number of comments from friends of folks at the paper who say that a lot of the reporters there are not supportive of Judy Miller and the Times’ stance and are angry about a lot of what went on with this. And are also worried about being pulled in to testify, since there has been a rumor that Judy Miller was blabbing about various facts that came up in this around the newsroom pretty widely. Beyond that, depending on the facts of this, there could be repurcussions along the lines of what Time faced if, indeed, the facts can be laid out that the NYTimes controls some hard copy evidence of this story and failed to discolse that either to the Special Prosecutor or the Court. Guess we’ll see on that.

  23. Anonymous says:

    Obsessed, re:
    QUESTIONS FOR REDDHEDD:

    – In light of what we know about Cooper’s testimony, how could Rove avoid a perjury charge?

    – In light of what we know about Russert’s testimony, how could Libby avoid a perjury charge?

    I have to say in both of these cases, were I representing either man, I would have to argue based on inaccurate recollection after my clients had consulted notes/phone logs/etc. It becomes more difficult to make that argument if there are witnesses to some effort to coordinate a â€story†for the FBI investigators or SGJ or whomever, obviously, or if there were notes or memoranda written by either man after the conversation to others in the Administration documenting the conversation (e.g. Rove’s note to Stephen Hadley which was supposedly done contemporaneously, although it did seem like the perfect after-produced memo designed to support a storyline that Rove wanted to promote, didn’t it?) Anyway, that’s how I would play it, since memory is fairly imperfect when you are having a bazillion conversations every day about a bazillion different topics. It does get difficult, however, to make that sort of defense fly when everyone is using the same sort of story in the same sort of way to CYA — that truly does seem awfully planned. I’m telling you, if we don’t get some movement on this case soon my poor brain is going to explode from trying to untangle all these various knots. I’d love to volunteer my free time (such as it is) to Fitzgerald if I thought I could be useful in any way on this, if only to get a peek at what is going on in that big ole brain of his. All I know is that I’m gonna stock up on some extra popcorn before the end of October.

  24. Anonymous says:

    btw, someone had a question on the hiring of RICO-experienced lawyers. I think that may be as much a commentary on how in depth Fitzgerald prosecutes his cases in terms of the network of connections in any given criminal enterprise, than anything else. Aside from the fact that attorneys with RICO experience tend to be the most experienced federal criminal defense counsels based on the complexity of their work, if I were facing prosecution for, say, a RICO-type web of conduct, that is precisely the sort of attorney that I would want to hire. Maybe it’s a sort of Freudian attorney slip? Or it may simply speak to the magnitude of possible charges, the depth of experience of the attorneys and how seriously the potential defendants are taking Mr. Fitzgerald. I would say all of the above.

  25. Anonymous says:

    > All I know is that I’m gonna stock up on some extra
    > popcorn before the end of October.

    I’ve had a room full of popcorn ready and waiting since July, but, reviewing your answer to the first question in my first post, this Special Grand Jury can request up to three 6-month extensions and isn’t required to unseal all, or any, of its potential indictments by the end of this term.

    In light of that, do you still think that we’re more likely to see some action on or shortly before 10/28 and if so, why? If not, do you think the Miller standoff is the only remaining obstacle to the SGJ making a move?

  26. Anonymous says:

    > I bet she’d kill for a good glass of pinot grigio and a
    > buddy who knew the meaning of stare decisis right about
    > now.

    Just in case we all get the opportunity to share a glass of pinot grigio with St. Jude (although I imagine she’d splash hers in emptywheel’s face!), what DOES â€stare decisis†mean anyway????

  27. Anonymous says:

    â€Stare decisis†is latin for â€to stand by the decision†(or something close to that, anyway, since my latin really sucks rocks). It means that a court must stand on the precedent set on particular issues by higher courts and prior precedents in that same court. You stand on the law that is already decided, in other words. If you watched any of the Roberts confirmation hearings today, you will have gotten an earful on the subject.

  28. Anonymous says:

    ReddHedd, you are my new hero-ette. I’m as obsessed as â€obsessed†by this, as I see it as our best chance to ship the whole crew off to prison. (Of course I realize that the most likely outcome is pardons all around.)

    It was my question about the RICO lawyers hired by Bush and Rove, and I probably didn’t ask it the right way. What I meant was, would your average upstanding guilt-free president who was completely uninvolved in any peccadillos or worse by underlings, normally retain one of these gangster-defending types? Or would someone like James Baker be more his style?

  29. Anonymous says:

    > ScientistMom: ReddHedd, you are my new hero-ette.

    Agreed – Having obsessively devoured every word published about this whole mess, emptywheel and Reddhedd are my two favorite Plame reads.

    Honorable mentions go to (in no particular order):

    -murray waas (in the trenches since the beginning)
    -wolff (an asshole on the Air America interview, but the vanity fair article was brilliant)
    -swopa (currently missing in action)
    -elizabeth de la vega & John Dean (one hit wonders)
    -mark feldstein (check this one out for great writing: http://www.washingtonpost.com/…..02222.html)
    -arianna (vicious, concise, unflappable)
    -Olbermann, froomkin, schuster, jehl (before they muzzled him) and â€the note†(submitted phony test results to bypass the mainstream media double-digit IQ regulation)
    -Josh Marshall and Mark Schmitt – not currently covering our cause célèbre, but when they do speak they’re always on the money
    -the 3 judge panel that sent Lady J up the river (a splendid 83 page article even if we don’t get to read it all)
    -citizen spook (he sounds like a conspiracy nut, but a lot of his legal stuff will keep you turning the virtual pages. Start with the 8/26 journal)

    Did I leave out anybody?

  30. Anonymous says:

    I did not mean to leave emptywheel out of the hero-ette club; I thoroughly enjoyed her multipart tours-de-force. Now I have some new writers to look up. I already know about Arianna and Olberman. Before I started reading her political writing, I was only vaguely aware of Arianna and was surprised to learn how brilliant she is. I also didn’t know about Olberman (hardly ever watch TV) until I started reading his blog fairly recently; another brave and incisive writer.

  31. Anonymous says:

    An interesting morsel:

    â€The Justice Department and the special counsel investigating the leak of a CIA operative’s identity pressed Congress to block legislation that would compel the administration to turn over documents related to the case, the department said in a letter released on Thursday.â€

    http://abcnews.go.com/US/wireStory?id=1130643

    I was just happy for evidence that Fitzgerald and his investigation do actually exist. The 24-hour news cycle has a lot of psychological power. When I talk to my friends (the one’s who will still talk to me) about this nowadays, they say â€Oh, obsessed … you’re OBSESSED! That story is ancient history.â€

    And the story is not only missing from the front page. Very seldom is anything new found by even my elaborate custom google news search, with separate queries for Judith Miller, Patrick Fitzgerald, Karl Rove, Plame, and George Tenet. Even the blogs only rarely refer to it. EVery week or so some podunk fishwrap echoes the long since debunked â€Free Judy Miller talking points†in an editorial, but that’s about it.

    Hopefully all this radio silence can be taken as the ominous lull before the storm.