Pearlstine was excoriated by many in the media. The
San Diego Union-Tribune
ran a mock cover of
Time
magazine, with Pearlstine on the cover and the headline “Wimp of the Year.” Cooper himself said he disagreed with the decision. The
Times
said it was “deeply disappointed” by Time Inc.’s decision and took the opposite stand.
Judy Miller appeared in court on July 6, and told Judge Hogan that she would not comply. “If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press,” she said.
“I have a person in front of me who is defying the law,” Judge Hogan said. He ordered her held in a “suitable jail” until she agreed to testify. Miller was taken to the Alexandria Detention Center, across the Potomac.
At the same hearing, Cooper announced that he had reached an agreement to testify. That morning he’d told his son good-bye, expecting to go to jail. Then, “a short time ago,” he told the court, “in what can only be described as a stunning set of developments, that person agreed to give me a personal, unambiguous, uncoerced waiver that I could speak to the grand jury.” Judge Hogan said Cooper could remain free but he would leave the contempt citation in place until Cooper had testified.
Cooper didn’t name his source, but of course it was Karl Rove, who was instantly deluged with calls from the press amid renewed speculation that he was the source of the Plame leak. Rove was furious, and later called Cooper’s statement to the court a “bald-faced lie.” He insisted there was no new waiver; Rove’s lawyer had merely confirmed that the existing waiver dating from January 2004 applied to Cooper–“what anyone with a basic understanding of the English language would have known from reading the blanket waiver,” as Rove scathingly put it. In Rove’s view, Cooper “needed cover” for abandoning his supposedly principled defense of source confidentiality.
Cooper, however, maintains that this was the first time anyone representing him or Time had approached Rove to clarify that the waiver was voluntary, and this was the dramatic development to which he truthfully referred. In any case, the real source of Rove’s anger may have been Cooper’s decision to testify at all, given what Cooper was likely to say.
T
he spectacle of a
New York Times
reporter being thrown in jail for refusing to testify swamped the actual investigation into the Plame leak. The Miller story was front-page news across the country, led the network broadcasts, and dominated cable news and radio talk shows. It was the subject of the
New York Times
’s lead editorial, “Reporter Jailed”:
This is a proud but awful moment for
The New York Times
and its employees. One of our reporters, Judith Miller, has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources. . . . We wish she did not have to make this choice, but we are certain she did the right thing.
She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government.
It was an eloquent testimonial to the press, but on what basis was the
Times
“certain” that Miller was doing the right thing? The
Times
ignored the reasons that three federal courts, including the Supreme Court, had rejected Miller’s arguments: Miller was invoking a reporter’s privilege to protect someone who may have violated the protected identities act and may have committed perjury. Libby wasn’t a whistle-blower, risking a career to report government misconduct. Miller’s testimony could establish whether he was a criminal–or an innocent bystander to the Plame affair.
None of this was a secret to the judges involved in deciding the case. Nor would it have been a secret to the
Times
had its top officials asked to see Miller’s notes or asked her directly if anyone had leaked Plame’s identity to her. But they didn’t. As Fitzgerald argued in his affidavit to the court:
To deprive the grand jury of the ability to hear and assess Miller’s account of what Libby told her is to ask the Special Counsel and the grand jury to make a decision on prosecution partly in the blind–where it is unknown whether the information will be inculpatory or exculpatory. The possible consequences of a mistake–either the failure to charge what would otherwise be determined to involve a crime carried out to discredit a source who was a whistle-blower or, worse, charging a confidential source in good faith with a crime where the claim of “reporter’s privilege” deprived the investigation of exculpatory information–could do far more to undermine both First Amendment interests and the fair administration of justice than could enforcement of the subpoenas.
T
hat Friday,
Time
had handed over a critical e-mail from Cooper to his editors at
Time
, dated July 11, 2003, 11:07 a.m.:
Spoke to rove on double super secret background for about two mins before he went on vacation . . . his big warning . . . don’t get too far out on Wilson . . . says that DCIA didn’t authorize the trip. It was, KR said, wilson’s wife, who apparently works at the agency on wmd issues, who authorized the trip. Not only the genesis of the trip is flawed ans [
sic
] suspect but so is the report. He implied strongly there’s still plenty to implicate Iraqi interest in acquiring uranium from Niger. . . . some of this is going to be declassified in the coming days, KR said. Don’t get too far out in front, he warned. Then he bolted . . . will include in next file . . . please don’t source to rove or even WH but have TB check out with Harlow.
To the investigators, this suggested a much more significant conversation than the one Rove had belatedly told them about, and made even more suspect Rove’s failure to remember anything about the substance of the conversation. Rove had clearly identified Wilson’s wife to a reporter and discussed a still-classified report.
Cooper spent two and a half hours before the grand jury on July 13. Most of the time was spent elaborating on his e-mail and notes of his conversation with Rove. He’d called the White House switchboard and was transferred to Rove’s office, then Rove himself got on the phone. “I’m writing about Wilson,” Cooper recalled saying. Rove had interrupted, saying, “Don’t get too far out on Wilson.”
On “deep background,” Rove had told him what was reflected in the e-mail, mentioning that Wilson’s wife worked at the “agency” on “wmd,” but that he didn’t use her name or indicate she was covert. This was the first time Cooper had heard anything about Wilson’s wife. As for his reference to “double super secret,” he explained it as a playful reference to “double secret probation,” the penalty imposed on the wayward Delta House fraternity in the film
Animal House
.
Fitzgerald asked if Cooper had asked Rove about “welfare reform,” a question that puzzled him. Not that he recalled, he said. About two months later, Cooper did write a short story about welfare reform, and Fitzgerald asked him about it. Cooper speculated he might have left a message for Rove saying he wanted to discuss that topic, but he didn’t believe they did. One thing he did clearly remember, though it wasn’t in his notes: Rove ended their conversation by saying, “I’ve already said too much.”
M
iller might have taken a courageous stand for press freedom by going to jail, but the reality was far less heroic or dramatic. She shared a small, two-person cell in a crowded wing that housed twenty-four women. She worked in the laundry. She considered the food inedible and lost twenty pounds. She received a stream of high-profile visitors, including NBC anchor Tom Brokaw, but had no Internet access. Each day she eagerly searched newspapers for articles about herself. She was disappointed. Although the
Times
kept up a steady stream of editorials–about one every two weeks–her cause was inexorably fading from public view, and with it any public pressure on Fitzgerald to release her.
From Fitzgerald’s point of view, he was sympathetic to Miller’s circumstances, but argued that she held the keys to her release. He couldn’t understand why the
Times
hadn’t been more rational in reaching an accommodation with him, as other news organizations had. He felt bad that Miller was in jail, but, as he put it, “If you feel bad, and just walk away, then what?” To do so would render a court order upheld by the Supreme Court meaningless–and with it the rule of law.
Even before she went to jail, Miller had added legendary Washington defense lawyer Robert Bennett to her team; Bennett had navigated President Clinton through the Starr investigation and Lewinsky scandal. Bennett urged Miller to approach Libby to clarify the nature of his waiver. After two months in jail, Miller decided she “owed it to myself” to allow Bennett to contact Tate, Libby’s lawyer, which he did on August 31. On September 12, Fitzgerald also wrote Tate, saying that a misunderstanding over Libby’s waiver might be the cause of Miller’s refusal to testify.
Soon after, Bennett received a personal letter from Libby to Miller:
Dear Judy,
Your reporting, and you, are missed. Like many Americans, I admire your principled stand. But, like many of your friends and readers, I would welcome you back among the rest of us, doing what you do best–reporting.
Libby professed surprise that Miller might have thought his waiver was coerced, noting that his lawyer had called lawyers for every reporter he’d spoken to in July 2003 and assured them that “my waiver was voluntary” and that Miller’s lawyer had assured him that her refusal to testify was based on principles “unrelated to us.”
I would like to dispel any remaining concerns you may have that circumstances forced this waiver upon me. . . . Why? Because, as I’m sure will not be news to you, the public report of every other reporter’s testimony makes clear that they did not discuss Ms. Plame’s name or identity with me, or knew about her before our call. I waived the privilege voluntarily to cooperate with the grand jury. But also because the reporters’ testimony served my interests. I believed a year ago, as I do now, that testimony by all will benefit all.
I admire your principled fight with the government. But for my part, this is the rare case where this “source” would be better off if you testified. That’s one reason why I waived over a year ago, and in large measure, why I write again today. Consider this the Miller corollary: “It’s okay to testify about a privileged communication, when the person you seek to protect has waived the privilege and would be better off if you testify.” If you can find a way to testify about discussions we had, if any, that relate to the Wilson-Plame matter, I remain today just as interested as I was over a year ago.
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.
It was a strangely eloquent, almost elegiac plea, perhaps drawing upon the novelist in Libby. For he must have known that Miller’s testimony would uniquely implicate him as leaking Plame’s identity and shatter his Russert alibi, already discredited by Russert himself. Libby would not be “better off” if Miller testified. So what was Libby really saying? That he wanted Miller to say that they hadn’t discussed Plame, consistent with his reference to other reporters’ testimony? And what was the meaning–or relevance–of the aspens’ roots being interconnected?
In an accompanying letter to Fitzgerald, Tate expressed some exasperation that Miller had suggested Libby didn’t want her to testify. “We encouraged her to testify–over a year ago–believing that her testimony, when added to those of other reporters who have testified, will benefit my client.” Bennett, too, said that in their conversations Tate “could not have been clearer” that Miller was free to testify–in stark contrast to the ambiguous reaction Abrams had reported. Even then, Miller said she wanted to hear Libby’s voice. They had a conference call on September 19, with her lawyers and Libby’s listening.
The call lasted ten minutes. Miller subsequently told the
Times
that Libby said how unhappy he was that she was in jail because of him, and that he’d assumed there were other people she was protecting. She had “pushed him hard,” asking, “Do you really want me to testify? Are you sure you really want me to testify?” He’d replied, “Absolutely. Believe it. I mean it.” In his tone she heard “genuine concern and sorrow” that she was in jail. All of her lawyers, including Abrams, now agreed that the waiver was voluntary.
On September 29, after eighty-five days in jail, Miller was released.
Times
publisher Arthur Sulzberger Jr. and executive editor Keller took her to the Ritz-Carlton hotel in Georgetown for a massage and manicure followed by a martini and steak dinner. The next day she spent three hours before the grand jury. Fitzgerald agreed to restrict his questions to her conversations with Libby.