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Saturday, October 01, 2005

Miller & lawyer to Libby & lawyer: You incompetent idiots, why didn't you save me from my folly?

Paul Mirengoff at Power Line has this bit as part of a hugely intriguing post mostly about other things that I'm not yet prepared to blog about:

One thing seems clear in all of this — Miller's lawyer Robert Bennett is way out of line as he makes the rounds of the talk shows suggesting that Scooter Libby should have called Judith Miller earlier to personally assure her that she had his permission to testify. For example, he told Wolf Blitzer:

Mr. Libby knew where Judy was. He had her phone number. They knew each other. There was no secret where she was. So I find it amazing that somebody would suggest that Judy would unnecessarily spend 85 days in jail.

Paul's comments thereafter are right on point — read the whole thing — but I want to add one additional wrinkle to them: Bennett's comment ignores the fact that his client's previous position was extremely insulting to both Scooter Libby and his lawyers.

Hypothetically, if I'm representing Scooter Libby, then among my jobs as his counselor is to help him make informed, rational decisions that are in his own personal best interests. I don't let Scooter Libby, for example, make, and then publicly repeat, a broad waiver of his "rights" (really, expectations) as a confidential source unless I'm absolutely certain that Mr. Libby (who's unlikely to be a fool himself, having risen to the position of chief of staff to the Vice President of the United States) has indeed had a full and ample opportunity to consider all the pros and cons, all the upsides and downsides, of that decision. I play devil's advocate with him; I help him explore best- and worst-case scenarios; I help identify all his alternatives, so that he can exercise his informed judgment according to his free will. That's my job as his lawyer.

I also make sure he doesn't make, and then publicly repeat, a broad waiver of his "rights" as a confidential source unless I've also made my own independent determination that he also has the full capacity to make an informed decision and exercise his free will. If I suspect, for example, that he's suffering from temporary insanity, or under the influence of LSD, or mentally retarded, or under hypnosis, or has an improvised explosive device wired to his waist and Karl Rove's holding the detonator — in short, if I have any reason to believe, or even suspect, that my client might be unable to discern and act in his own rational self-interest, then I call a halt to the proceedings and I take appropriate action.

But comes now Judith Miller of the New York-bleeping-Times, who goes prominently on record as saying, in so many words: "Never mind what my source says. I — the journalist, the goddess of the press — have the sole and absolute right to decide whether my source's waiver was or was not 'coerced.'" Because that was and still is Judith Miller's very clear position — not just that there had to be a waiver, and that it had to be voluntary and uncoerced, but that only she could decide whether it was voluntary or coerced.

(Leave aside for the moment that her apparent standard for "coercion" and "voluntariness" is unique, arbitrary, and absolutely contrary to law. The fact that Mr. Libby's waiver may have been motivated, in whole or in part, by a desire to avoid some bad consequence, e.g., being fired, does not invalidate his decision. If that were true, there could never be a valid guilty plea, for instance. If that were true, you could freely breach every contract by claiming, "Oh, well, I was coerced into breaking my promise because I suddenly realized it would be disadvantageous to me to keep it.")

Just on its face, that's an incredibly insulting position to take. That's equivalent to Judith Miller saying: "Scooter Libby is drunk, retarded, or otherwise incapable of making a rational, binding decision on his own, and his lawyer is too damned stupid, unethical, and unprofessional to recognize that and do anything about it. Whatever they say, it doesn't count." In fact, it's hard for me to imagine a more self-righteously patronizing and repugnant position that she could have taken.

And now she blames Libby and his lawyers for not going out of their way to explain to her that she was acting stupidly?

Please. Bring me the world's smallest violin.


UPDATE (Sat Oct 1 @ 1:00pm): In a new post, Paul was kind enough to link this one, and he and John Hinderaker both make some persuasive points about how bizarre it is for Ms. Miller and her lawyers to fault Mr. Libby and his. And in the blogosphere-scoops-MSM fashion they so frequently display, the Power Line guys have somehow obtained, and posted, photocopies of three amazing letters written, respectively, by Scooter Libby to Judith Miller (c/o her lawyer Robert Bennett); by Mr. Libby's lawyer Joseph Tate to Special Prosecutor Patrick Fitzgerald; and by another of Judith Miller's lawyers, Floyd Abrams, back to Mr. Tate. [Update to update, Sun Oct 2 @ 12:45pm: Tom Maguire, in comments below, pointed out that the NYT has also posted the letters (in a single .pdf file that I find more easily readable). Tom's latest post on all this is here.]

The latter two letters basically read like overgrown kindergarteners screaming "Did not! Did too!" at each other. To put it mildly, Mr. Tate and Mr. Abrams can't agree at all on what each said to the other a year ago, and so each is now engaged in some major (and unfortunately all too typical for lawyers) posturing. Letters like these are what lawyers write to each other when there's no judge to hear and sustain each others' objections, so there's no restriction on their inclinations to engage in hissy fits (at way over $600/hour for guys in this league).

But the most amazing lines are Mr. Libby's, at the end of his remarkably gentle, eloquent, personal, and even poetic plea for Judith Miller to come to her senses and accept his waiver:

You went into jail in the summer. It is fall now. You will have stories to cover — Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work — and life.

Until then, you will remain in my thoughts and prayers.

With admiration,

Lewis Libby

Anyone with both a working brain and a working heart — that is to say, anyone who hasn't had the former hypertrophied and the latter atrophied by law school — has to have a powerful reaction to lines like these. Mr. Libby comes out of the exchange looking like the only decent human being among them — someone who's not only entirely unafraid that he's going to be prosecuted, but also genuinely respectful and fond of another person (even though she is in a profession that oftentimes makes her his own professional adversary).

Back to the — excuse me for the blunt language, but again, this is the way trial lawyers speak among each other — pissing match between Messrs. Bennett, Tate, and Abrams:

I don't care who said what to whom on the phone a year ago. I have no opinion whose version of events is closest to the truth. It doesn't matter. There was no doubt whatsoever that on its face, the written waiver that Mr. Libby had given was legally adequate and effective to release Judith Miller, Matt Cooper, and every other reporter he'd ever spoken with from any continuing obligation to maintain Mr. Libby's confidentiality as one of their sources. At that point, given that Mr. Libby is an adult and was represented by his own counsel, all of these reporters' second-guessing should have stopped. If Mr. Libby was under pressure to grant a waiver, or to decline to assert his Fifth Amendment rights against self-incrimination — either because of an explicit statement that he'd acted otherwise, he'd be fired by the President, or because of his fear that he'd lose political credibility, or for whatever other reason — then that was between him, his employer, their respective lawyers, and (perhaps) the Special Prosecutor.

I repeat, were I in the position of Mr. Libby's lawyer, the very instant Ms. Miller or her lawyers started sputtering about whether Mr. Libby had been "coerced" or whether his waiver was "voluntary," my immediate and very vehement reaction would have been to say (probably in an uncomfortably loud voice): "Who the bleepedy-bleep do you think you are to try to second-guess the legal advice and representation I've given my client, and his considered decisions on the basis of my confidential counsel to him?!? My client decided to talk to Ms. Miller, sure, but he damned sure didn't give her a veto power over every major decision he'd make for the rest of his life! You have no standing here. Get over yourselves, please!"

Regular readers will know that I'm generally a big fan of Floyd Abrams. But in the end, I'm not a fan of how he or his co-counsel or their client have handled this. They've been sanctimonious, presumptuous, self-righteous, insulting, and, ultimately, silly and stupid. From day one through today, everything they've done has been premised on the notion that Judith Miller is above and beyond the law, acting on another plane than the rest of us mere mortals. And I am 100 percent convinced that Ms. Miller and her own lawyers collectively bear 100 percent of the responsibility for every minute Judith Miller spent in jail — and that every such minute was a total waste, the only result of which has been to substantially delay the doing of justice, whatever that turns out to be, in L'Affair Plame.

Posted by Beldar at 12:32 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Miller & lawyer to Libby & lawyer: You incompetent idiots, why didn't you save me from my folly? and sent a trackback ping are listed here:

» Yup, Theres Something Else Going on with Judith Millers Jailing from Patterico's Pontifications

Tracked on Oct 1, 2005 6:49:39 PM


(1) hunter made the following comment | Oct 1, 2005 1:05:55 AM | Permalink

Well said.
Miller's behavior is so out of line, and her attorney's posiiton so misleading, that I can only conclude something else is going on behind the scenes.
The key seems to be the prosecutor's extremely odd decision to only question Miller about what was already widely known to the public.
This implies that either Fitzgerald is not going to indict anyone, since Plame's marriage to Wilson was public record since 1999, or that he is going to choose to 'get someone' after such a long and drawn out GJ ordeal, and hope a jury does not notice the public nature of Plame's life and identity.
But for once I wish one of these synchophant, lazy biased journalists would call someone like the liberal Bennet out over such a blatantly phony position and confront him with the facts as you have laid them out here.

(2) Carol Herman made the following comment | Oct 1, 2005 1:34:00 PM | Permalink

Aren't the Bennett brothers suffering some? What with Bill's "reducto ad absurdum" claims that blacks, in aborting babies, would end the crime rate. (When what he said WAS A JOKE. And, in response to a caller who was Pro-Life, castigating all abortions as contrary to a good decision a woman has the freedom to make.)

Did he have to answer it this way? Well, if you're on morning TV, exactly how do you deal with the boobs who make up audiences for these talk fests?

And, now we have brother Robert; making the liberal talk show circuit. To help pull the wool over the viewers' eyes.

Is this working?

It's not working for me. I can see that Judith Miller, through her articles for the NY Times, while Saddam was the head of the Iraqi government; taking the line that he did, indeed, have WMDs. And, she was getting her leaks straight from the CIA. Do you wonder if the maven in charge of WMDs turns out to be none other than Valerie Plame?

The journalists haven't quite figured out, yet, that the public by and large, is not so impressed with them. And, today, many people turn to the Internet. To stay informed. AND, bless this medium, to comment, along with others.

If reputations counted for points, would you rather be Robert Bennett, or Floyd Abrams, today? Or do you see the NY Times flagship teetering around, just like C-BS? Where would we be without all the stories we're getting to evaluate for their "truth contents?"

When were people dumb, by the way? Going back more than 100 years, immigrants to this country learned in a hurry NOT to buy the Brooklyn Bridge.

(3) Assistant Village Idiot made the following comment | Oct 1, 2005 3:27:56 PM | Permalink

Even among bright and competent people, the possibility of someone just screwing up for no good reason is always present -- which is what makes the relative smoothness of American military actions and the Katrina rescue remarkable for their success rather than their failure. Miller's 85 days in jail may indeed be the result of someone being simply boneheaded. It can't be ruled out.

But it is not the most likely explanation, because there was presumably more than one attorney at the firm aware of what is going on in this high-profile case. It is more likely that something else is in play here. The restriction on further testimony is a plausible alternative explanation. Another would be the hope of some exculpatory evidence arriving, prior to which Miller and others did not wish to testify.

(4) vnjagvet made the following comment | Oct 1, 2005 5:19:09 PM | Permalink

Beldar's analysis is, as usual, trenchant, and skillfully penetrates the posturing of Miller and her attorneys.

I particularly like his description of his reaction were he representing Libby to Abrams' condescending blather. I like it because it is so like my own reactions to similar lecturing from lawyers who thought themselves either senior to me or more learned in a particular area of the law, and implied to me (and to my client) that I did not know what I was doing, when I was taking a position which helped my client and hurt theirs.

I seldom call other lawyers names, but in this case, I would be sorely tempted.

(5) Don Meaker made the following comment | Oct 1, 2005 5:53:15 PM | Permalink

I think that powerline has a better answer. Miller stayed in jail until the prosecutor agreed that he would only ask about Scooter Libby.

There may be another source that she is protecting (say, Joe Wilson) or another matter, say her learning about the FBI warrant to search a particular mosque, and her following call to that mosque to get their comment on the warrant to search them. This last was illegal activity on her part, and by staying in jail she got to avoid being asked about it.

(6) Patterico made the following comment | Oct 1, 2005 6:51:15 PM | Permalink

"To put it mildly, Mr. Tate and Mr. Abrams can't agree at all on what each said to the other a year ago, and so each is now engaged in some major (and unfortunately all too typical for lawyers) posturing."

Ah -- except for one thing. Tate asserts that the coercive nature of Libby's waiver was not the only factor, or even the determinative one -- and Abrams agrees. More on that in my post, which I have tracked back to yours.

(7) Tom Maguire made the following comment | Oct 1, 2005 7:20:06 PM | Permalink

In addition to the excellent list of eeasons to think twice about a waiver already listed by our host, I would add another - unless you are sure that the reporter is not confused about sources, has a clear memory and accurate notes, won't conflate conversations, and will deliver honest, accurate, agenda-free testimony, think twice before signing a waiver.

And FWIW, the NY Times posted those three letters at their website this morning.

(8) clarice feldman made the following comment | Oct 1, 2005 9:53:36 PM | Permalink

What gets me is the press blather that this case establishes the need for a shield law.

(1) If classified info was leaked, as the Ct in Miller's own case indicated, no shield law could protect the reporter to whom it was leaked or who leaked it.
(2) In this case, a lot of reporters (and certainly their editors) knew full well that Rove and Libby never leaked classified information, refused to testify and let them swing for over a year, the target of suspicion. Were there a shield law and did it apply, imagine how much mischief our very partisan lefty media could do. (And don't say that's hyperbole. They still are honoring "fake but accurate" Rather and defending the horrible reportage of Katrina on the ground that help was needed and so it was okay.(Ignoring it slowed help because they had to arm every rescue operation.)

(9) Carol Herman made the following comment | Oct 2, 2005 11:44:38 AM | Permalink

Judith Miller's been at the NY Times a long, long time. And, at first, she sat in the DECORATING CHAIR. Probably not far from Mimi Sheraton. Who wrote a book about her restaurant reviewing experiences; in which she states that the NY Times is NOT a friendly place! But that the women who were writing columns about decorating trends; and the food columnist, got along well, together. Sometimes, in disguise, they'd go out and eat at the fancy places they reviewed.

And, if you check Amazon, you'll notice that Judith Miller has a number of decorating books to her credit. About decorating "styles." Paint chips. And, wallpapers, included.

Does it matter? Only if you're curious about how she then jumped to the WMD desk. And, how she got somebody at the CIA (who was working on WMD analysis; like Valerie Plame), to be her super-secret source for information. Oh, yes. That information ended up in her columns, NOT on decorating; but on the possibilities that Saddam had (and was hiding) WMDs.

Of course, we've seen 60 Minutes TANG story against our president come crashing down. Not that it is stopping Mary Mapes from writing her views on this.

But if you keep pressing the question, WHY would Miller want to hide her super-secret contacts in government, would you be looking at the White House, now?

(10) Geek, Esq. made the following comment | Oct 2, 2005 12:58:02 PM | Permalink

Beldar, you know that no lawyer can be smarter than his client allows him/her to be.

People are assuming that the Queen of Iraq wanted to stay out of jail.

Getting thrown into jail was the best thing that ever happened to Miller--she went from being a discredited hack serving as Chalabi's mouthpiece to being an icon for constitutional freedom and a martyr.

Judy wanted to go to jail. And she has the ethics of a snake.

(11) Birkel made the following comment | Oct 2, 2005 3:31:08 PM | Permalink

Geek, Esq.,

I get it. Judy is a horrible person who thought (like all the worlds' intelligence agencies) that Saddam possessed WMD and therefore wanted to go to jail as a type of self-flagellation. Brilliant.

It's got all the great parts you need to make an incoherent conspiracy theory. It's got a bad actor acting in ways that make her look like a victim but really make her double-top-secret super-duper smart. (The super-villian is always more exciting than the more mundane explanations. Occam's Razor be damned!) It's got deception. It's got intrigue.

And most important of all: It requires no truth, no verification and no substance whatsoever. Solid work, dearest Lefty. Solid indeed.


(12) Geek, Esq. made the following comment | Oct 2, 2005 5:18:12 PM | Permalink

Miller was to WMD reporting as Mary Mapes was to document authentication.

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